Establishing Neurorights: New Rights versus Derived Rights

Abstract

The way in which neurotechnology interferes with the human mind by enabling reverse inferences of mental states and alterations of mental processes, is a source of significant concern. Both human rights scholars and international and regional human rights institutions are actively examining which human rights safeguards are needed to address these concerns and protect the human mind. Central to this exploration is the question of how human rights law should formally establish these safeguards: through the introduction of neurorights as new stand-alone human rights, or by deriving neurorights form existing rights? This article seeks to contrast arguments in favour and against both strategies, to inform a substantiated choice for the preferable option. To this end, the article will first outline the origins of the neurorights debate. Subsequently, it will elaborate on the two identified approaches to establishing neurorights. Thereafter, both approaches will be assessed on their merits, focussing on the general criteria of ‘need’ and ‘feasibility’. Based on this evaluation, the article identifies the Derivation Approach as the preferable path forward. The need for new, stand-alone rights is insufficiently established, whereas deriving neurorights from existing rights provides clearer and more coherent safeguards, and encounters fewer political challenges.

1. Introduction

The impact of neurotechnology (NT) on the human mind through reverse inferencing of mental states and alteration of mental processes, is a significant cause for concern. Both human rights scholars and international and regional human rights institutions have started actively exploring which legal safeguards are needed to address the challenges arising from the increasing accessibility of people’s mental sphere through emerging NTs (Ienca and Andorno 2017; Ligthart et al. 2023b; UNESCO IBC 2021; HRC 2022; DH-BIO 2021). Central to this exploration is the question of how human rights law should formally introduce these safeguards. Some scholars and advocates propose the introduction of a set of new human rights (Yuste et al. 2021; Farahany 2023), while others argue that existing human rights can be interpreted in the light of current technological advancements, thereby emerging as effective safeguards for the human mind (Ligthart et al. 2022; Hertz 2022; Istace 2024). This article aims at contrasting arguments in favour and against both strategies in order to provide arguments to substantiate the selection of the preferable option. To this end, this article will first outline the origins of the neurorights debate and its current state. Subsequently, it will elaborate on the two main approaches to establish neurorights. Thereafter, both approaches will be assessed on their merits by weighing their respective pros and cons. This will, in a final stage, allow for a conclusion on the preferable strategy.

2. Neurorights: conceptual delineation and state of progress

In recent years, there has been a growing exploration of the ethical challenges posed by the potentially disruptive effects of NT (mis)uses on both personal and collective well-being. These challenges have been increasingly framed in terms of fundamental rights and freedoms (Ienca 2021), laying the groundwork for the neurorights debate. In essence, this debate focuses on whether and how the human rights framework should be updated to offer robust protection against threats related to emerging NTs. Given the rapid progress of NT, scholars began questioning whether the existing human rights framework provides adequate safeguards against threats to the freedom, privacy, and integrity of the human mind. These threats stem from NT’s ability to interfere with people’s mental states, processes, and events. Through technology interacting with the brain, information could be extracted from people’s mental spheres, mental processes could be altered, and minds could be coupled with external computers and electronic devices.

At the roots of the neurorights debate—much like other calls for updated human rights protection—lies an inadequacy claim (Susi 2020). Some scholars have concluded that existing rights and freedoms that prima facie should offer protection to people’s minds—including the freedom of thought, the right to privacy, and the right to integrity—fall short in offering protection against this form of technological intrusion into the human mind (Yuste et al. 2017). These claims of inadequacy have been pivotal in sparking the neurorights debate, serving as a key legitimizing factor. It is therefore essential to carefully consider whether these claims hold true (Bublitz 2020), and thus to clearly identify the alleged shortcomings, in the form of gaps or ambiguities, before discussing potential remedies. While initial calls for the introduction of neurorights presumed the inadequacy of the existing human rights framework rather than establishing it definitively, recently in-depth analyses have provided compelling evidence of uncertainties within this framework concerning the protection of an individual’s mental sphere (Ligthart et al. 2023b). These analyses reflect an emerging consensus on the lack of clear human rights safeguards governing the human mind. Some scholars identify gaps in human rights law (Yuste et al. 2021), while others rather speak of areas of ambiguity and underdevelopment (Ligthart et al. 2022; Bublitz 2022). Both perspectives lend support to the inadequacy claim and justify a debate on strengthening the human rights framework in the light of neurotechnological advancements.

The term ‘neurorights’ itself was first introduced by Yuste et al. in a 2017 article focussing on the ethical implications of NT (Yuste et al. 2017).¹ These scholars were the first to explicitly frame a proposal to update the human rights framework to protect the human brain and mind against intrusive technologies in terms of ‘neurorights’. While coining the notion ‘neurorights’, their work builds on earlier ethico-legal literature exploring normative considerations concerning interferences with individuals’ brains and minds. Boire and Sententia offered authoritative analyses of the concept of ‘cognitive liberty’, thereby firmly placing the ethico-legal examination of interventions in human mind on the map (Boire 2001; Sententia 2004). In their wake, numerous scholars have engaged in the exploration of the moral and legal (human rights) challenges inherent to emerging neurotechnological advancements (Bublitz and Merkel 2014). The scholarly and advocacy efforts in this field coalesced into the ongoing neurorights debate, catalysed in part by the influential proposal for new human rights put forth by Ienca and Andorno (Ienca and Andorno 2017). In this proposal, they called for the introduction of four neurorights, that is a right to cognitive liberty, a right to mental privacy, a right to mental integrity, and a right to psychological continuity. Collectively, these rights aim to protect the human mind against various forms of harm resulting from unacceptable intrusions through NT.

It is important to consider that in some instances the concept of ‘neurorights’ is explicitly linked to the way in which human rights safeguards are established. In that usage, neurorights refers to new stand-alone human rights that protect people’s minds and brains (UNESCO 2023c). In other cases, neurorights more generally refer to ‘ethical, legal, social, or natural principles of freedom or entitlement related to a person’s cerebral and mental domain’ (Ienca 2021: 1), without specifically addressing the way in which those principles are formally realized in the legal realm—leaving all options for their formal introduction open. This analysis will refer to the concept of neurorights in accordance with the latter interpretation.

At present, neurorights can be considered to be in the ‘idea phase’ of the evolution of normative claims as human rights (von der Decken and Koch 2020).² During this phase, scholars and activists engage intellectually with an issue that they deem essential to be addressed within the framework of human rights. At this stage, a political dimension may emerge, as activists lobby with national and international regulating bodies to raise awareness of the identified shortcomings in the human rights framework. This dimension is evident in the neurorights debate, as the calls for regulatory action have garnered attention from international organizations, creating a momentum in the global debate on neurorights policy (UN HRC 2022; Inter-American Juridical Committee 2023; UNESCO IBC 2021; DH-BIO 2020; OECD 2019). Bublitz’s assertion that a human right or a collection of rights aimed at protecting the cerebral and mental domain is gradually emerging, can be endorsed (Bublitz 2020).

3. How to establish neurorights?

As the idea of establishing neurorights in the human rights framework gained traction in the policy domain, a critical question arises: how should the introduction of neurorights be formally realized? An analysis of the relevant proposals allows for the identification of two approaches: introducing neurorights ex nihilo as new stand-alone human rights or deriving them from existing rights. In this article, these two approaches are respectively labelled the New Rights Approach and the Derivation Approach. While both options appear very similar in their outcome, they present significant conceptual and practical differences. These differences will be examined before assessing the merits of each approach.

The debate over how to formally establish neurorights has long dominated discussions. Recent literature suggests shifting focus to more substantive issues (Bublitz 2023). While this suggestion is valid, examining different strategies for introducing new normative claims within the human rights framework remains relevant, especially considering its utility in other contexts. Although this analysis specifically assesses two strategies for the establishment of neurorights, the criteria and assessment scheme presented can be applied to other efforts to update the human rights framework.

3.1 New Rights Approach

The introduction of new, stand-alone human rights into the international human rights framework can be achieved through two main avenues. The first, most common, is by adopting a new treaty or additional protocol to an existing treaty, thereby creating new binding rights (von der Decken and Koch 2020). This process requires consensus among participating States regarding the need for additional protection, and the substance of the provisions realizing that protection (Garret et al. 2021). Another approach involves the recognition of a new human right in a soft-law instrument. For instance, the UN Human Rights Council (HRC) Resolution 48/13 recognized a human right to a safe, clean, healthy and sustainable environment (UN HRC 2021). While acknowledging that this right is related to other rights and freedoms, this resolution introduced a new, stand-alone right that is not derived from any existing right. Despite the non-binding nature of such an instrument, parties commit to complying with and implementing the established provisions. Moreover, over time, this right may evolve into international customary law, which may render it binding law (Ienca 2021).

In the context of neurorights, Ienca and Andorno advocated for the introduction of four new rights: cognitive liberty, a right to mental integrity, a right to psychological continuity, and a right to mental privacy (Ienca and Andorno 2017). While they hinted at drafting a new treaty or declaration, they refrained from taking a definite stance on the implementation strategy, and left open the possibility of a Derivation Approach. Furthermore, the Neurorights Foundation³—and affiliated initiatives—identified five rights that should be incorporated in the human rights framework: (1) the right to identity, (2) the right to agency, (3) the right to mental privacy, (4) the right to fair access to mental augmentation, and (5) the right to protection from algorithmic bias (Yuste et al. 2021). They called upon the relevant UN bodies to facilitate the inclusion of these rights into a new treaty or additional protocol. Another prominent contribution to neurorights advocacy is advanced by Farahany, who suggested the introduction of a right to cognitive liberty ‘to protect our freedom of thought and rumination, mental privacy, and self-determination over our brains and mental experiences’ (Farahany 2023: 11). While legal-technical details for the establishment of this right are not deeply explored, the suggestion leans towards the introduction of new, stand-alone rights (which are closely linked to, yet not derived from, an existing right). On the policy front, the HRC mandated its Advisory Committee (AC) to investigate the possibility of introducing neurorights as new rights, although the language used suggests scepticism towards this option (UN HRC 2022). This scepticism also shines through in the preliminary draft report presented by the AC rapporteur in February 2024, which does not recommend considering new rights and instead focuses on the protection offered by existing rights. A similar stance seems to be taken by UNESCO where it indicates that both strategies should be explored (UNESCO IBC 2021). While it does not definitively state which approach it favours, UNESCO’s preliminary background report for the ongoing standard-setting process suggests that neurorights encompass certain existing human rights (UNESCO 2023b).

3.2. Derivation Approach

The Derivation Approach enables the identification and articulation of normative claims as inherent elements or principles of existing rights that were previously unexplored or underdeveloped (Thielbörger 2014). Garret et al. refer to these as ‘implied rights’—rights present within the scope of existing human rights and freedoms but needing explicit articulation to ensure their effective realization in different real-world contexts unanticipated during the drafting of relevant treaties (Garret et al. 2021). The Derivation Approach recognizes normative claims which are preconditions, implications, or specifications of existing rights (Lenzerini 2020).

This strategy for the recognition of normative claims within the human rights framework, operates on the premise entrenched in international human rights law that treaties are living instruments, open for interpretation over time (ECtHR 1995: section 71; UN Human Rights Committee 2003: section 10.3; Inter-American Court of Human Rights 1999: section 114). Societal changes necessitate incorporating certain normative claims into the human rights framework. Evolutive interpretation is an established way to do so, and to derive specific elements from existing rights.⁴ Evolutive interpretation serves as a means to reaffirm, update, and ‘refocus’ human rights amidst vulnerabilities and risks emanating from evolving societal, cultural, or technological landscapes, thereby safeguarding human dignity (Schlütter 2012). The Derivation Approach does not as such introduce new human rights, yet it explicitly recognizes and articulates how specific normative claims—such as neurorights—resort under expressed, binding rights. These implied rights depend on the existing parent right, and are thus contingent on the parent right’s existence and enforceability. While theoretically the Derivation Approach merely demarcates the material scope of rights, it is often considered as a means to impose obligations that were not forseen by the drafters of the human rights instruments (Lenzerini 2020).

In the context of NT, several human rights experts argue that existing human rights provide a robust foundation for addressing emerging challenges (Ligthart et al. 2022, 2023a; Hertz 2022). Despite the absence of an explicit right to mental privacy or cognitive liberty, or other clear human rights principles safeguarding the human mind against the threats of NT, ‘anchors exist upon which a mind-protecting right can be established’ (Bublitz 2020: 388). For instance, Ligthart and colleagues propose that from the freedom of thought, in conjunction with both the right to mental integrity and the right to privacy, adequate safeguards can be derived to protect the freedom, privacy, and integrity of peoples’ minds (Ligthart et al. 2022). To realize this, it is imperative to further develop the scope, meaning, and interrelation of these rights. By identifying and refining previously unarticulated aspects of existing rights, shortcomings in the protection of peoples’ mental sphere may be remedied.

An evolutionary interpretation of human rights can be established in different ways. The most common, albeit often underexposed approach is through their application by courts. When confronted with alleged human rights violations in novel areas that were not (explicitly) anticipated at the time human rights instruments were drafted, courts can determine whether the issue at hand interferes with or violates those rights. The scope and meaning of the rights at play are re-evaluated in the light of modern-day challenges that arise in a litigation context (within the boundaries of the legal provisions at hand).⁵ This allows the law to evolve naturally in response to the demands of judicial practice. Another method for deriving implied rights involves the introduction of interpretative principles in soft-law instruments. Within a UN context, these includes declarations, resolutions, general comments, periodic state reports, or individual communications. Without establishing new autonomous human rights, these soft-law instruments can elucidate normative claims that give substance to existing human rights. They serve to guide courts in applying human rights in specific cases and assist policymakers in navigating policy formation amid unexplored, significant societal developments.

The Special Rapporteur on Freedom of Religion or Belief in a recent rapport on the freedom of thought, advocates for the adoption of a general comment in order to clarify the content and scope of the freedom of thought (UN Special Rapporteur on Freedom of Religion or Belief 2021). O’Callaghan et al. indicated that the recent mandate of the UN AC might lead to the adoption of a general comment (O’Callaghan et al. 2023). This prediction seems validated in the AC’s initial draft report which recommends adopting a general comment on the freedom of thought (Article 18 International Covenant on Civil and Political Rights [ICCPR]) and the right to mental integrity (Article 17 Convention on the Rights of Persons with Disabilities [CRPD]). At first glance, a general comment may seem a suitable instrument for establishing neurorights through a Derivation Approach. General comments allow UN treaty bodies to establish an authoritative interpretation of rights,⁶ clarifying their scope, content, and ensuing obligations (Alston 2001). These interpretations occasionally lead to the explicit articulation of implied rights. For instance, the Committee on Economic, Social, and Cultural Rights (ICESCR) established a ‘right to adequate housing’ as a necessary element of the right to an adequate standard of living—and thus not a stand-alone new right—in General Comment 4 (ICESCR 1991).⁷ However, the appropriateness of using a general comment for the introduction of neurorights can be questioned, as multiple rights are implicated and general comments are generally dedicated to commenting on a specific right, rather than an overreaching issue.⁸ Another option is the adoption of a resolution or a declaration. Pizetti proposes the introduction of a neuro-specific declaration, advocating for a Universal Declaration on Neuroscience and Human Rights. This declaration would establish general ethical and legal guidelines, and promote principles and rights in the context of neuroscientific advancements (Pizetti 2017). This includes the reaffirmation of human dignity, the right of self-determination and personality, and the right to health, as well as the development of the freedom of thought.⁹ Additionally, UNESCO has recently decided to develop a new ethical framework in this area, which will also refer to human rights commitments (UNESCO 2023a).

3.3 A subtle dichotomy

The flexibility of soft-law instruments to establish neurorights both as new human rights, or as implied rights falling within the scope of existing rights, urges us to appreciate the sometimes-subtle distinction between the New Rights and Derivation approaches. Both may establish non-binding norms, making the choice for either option sometimes seem like a matter of semantics—determined by the decision of drafters to label a new normative claim as a ‘right to’ or to frame them as an essential claim inherent to existing rights. Moreover, a derived implied right can still formally be presented as a ‘right to’ (for example the right to adequate housing), giving it the appearance of a stand-alone right. Nevertheless, while the distinction between both strategies is at times rather subtle and cannot be reduced to the dichotomy ‘treaty versus soft law’, the explicit recognition of a new stand-alone right, as opposed to a derived right inherent to an existing right, will affect policy choices in different ways.

4. Both options in the balance: quo vadis?

With two formal strategies available for the establishment of neurorights, their respective advantages and disadvantages require careful consideration. In the following analysis, attention will be directed towards distinct elements influencing the viability of each option, thereby elucidating their relative appeal so as to chart the preferred course forward.

In this comparative exercise, inspiration is taken from quality standards formulated for the recognition of new human rights. Despite the absence of a formal, fixed set of quality standards, various suggestions have been advanced that share general core elements (Brems 2020; Alston 1984). An exemplary set of quality standards was formulated by the UN General Assembly in 1986. It asserted that new human rights should: a) be consistent with the existing body of international human rights law, b) be of fundamental character and derive from the inherent dignity and worth of the human person, c) be sufficiently precise to give rise to identifiable and practicable rights and obligations, d) provide realistic and effective implementation machinery, and e) attract broad international support (UN General Assembly 1986). These standards are designed to assess the justifiability of introducing normative claims as human rights and are not specifically intended for comparing strategies for human rights establishment. Nonetheless, the chosen strategy affects the extent to which certain normative claims—in this context neurorights—can meet these standards. For instance, it may be that insufficient international support exists for the introduction of a right to cognitive liberty through a new ‘neurorights treaty’, while gathering (political) support for reinterpreting the freedom of thought as to accomplish a similar level of protection may be feasible. Similarly, it may be easier to preserve coherence within the human rights framework when a right to mental privacy is developed within the frame of the rights to privacy and the freedom of thought, rather than being introduced ex nihilo as a new stand-alone right. Hence, these quality standards serve as pertinent criteria for evaluating both the New Rights and Derivation approaches, and will therefore be referred to throughout the subsequent analysis. For the purpose of coherence, these standards can be broadly categorized as pertaining to two general criteria: need and feasibility.

4.1 Need

First, the need for the introduction of neurorights in the form of stand-alone rights will be assessed.¹⁰ This point of departure lays a burden of proof onto one of the two available options. This is justified as the New Rights Approach implies that the present configuration of human rights is incapable of serving as a foundation for the protection of the human mind. Such a strong assertion necessitates substantiation through cogent arguments.

4.1.1 The redundancy argument and unlocked potential.

Introducing new human rights holding protection that is already enshrined in the existing human rights framework is an unwelcome redundancy. A fundamental interest or value does not need to be protected multiple times by (quasi-)identical rights. Only when a real gap can be identified within human rights law, which would leave fundamental interests related to the mental sphere at risk in the wake of emerging NTs, should the introduction of new human rights be considered. If a satisfactory protection can be ensured through existing human rights, the establishment of new rights should only occur if compelling additional arguments warrant their creation (Michaloswki 2020).

The redundancy argument is encapsulated by the novelty criterium, which states that new human rights must not merely duplicate existing international human rights safeguards (Alston 1984). This novelty requirement should be interpreted with nuance, as the existence of some overlap does not necessarily negate the need for new rights. Bublitz observes that legal systems typically exhibit an ‘inherent desire for lex specialis, for reductions of complexity through concretely tailored rules’ (Bublitz 2020: 402). Specifications of existing rights are not inherently problematic. The level of scrutiny when assessing the novelty criterium should be determined accordingly, meaning that the protection offered by a new right should be sufficiently distinct from that provided by existing human rights, and effectively expand existing protections (Muñoz et al. 2023). Ideally, the need for specification is substantiated by other elements, such as the fundamental nature of the interests at stake. In the neurorights debate, many of the proposed rights significantly overlap with existing rights. For instance, the proposed right to mental privacy appears to be a specific articulation of the right to privacy. Therefore, the question arises as to whether the proposed right to mental privacy offers sufficiently distinct protections as compared to the right to privacy. Considering that the privacy of one’s mental sphere is at the core of the right to privacy, and thus already protected by human rights safeguards against unwanted intrusion, it is hard to see how a new, stand-alone right to mental privacy would achieve a sufficient degree of distinction (especially taking into account also that the freedom of thought also safeguards aspects of mental privacy) (Surveil 2013).

In support of the redundancy argument, human rights inflation surfaces as the most commonly expressed concern in the neurorights debate. This concern revolves around the proliferation of normative claims labelled as human rights, potentially leading to the trivialization or devaluation of existing rights, or even the concept of human rights itself (Nickel 1987). Ultimately, rampant expansion of the human rights catalogue without strict necessity would reduce human rights to mere symbolism. The proposals for introducing four or five new rights, as outlined above, underscore the validity of concerns regarding human rights inflation.¹¹ An often-disregarded argument in this regard, however, is that the Derivation Approach may yield a similar effect on the level of individual human rights. It could be argued that, by deriving numerous human rights claims from a single ‘parent right’ and broadening their scope ever further beyond its original meaning, there is a risk of diluting their meaning. This could result in an overly broad discretion in interpreting these rights, causing them to have more symbolic rather than substantive value. In the context of neurorights, this risk of devaluation due to derivation appears minimal. This is due to the current underdevelopment of rights such as freedom of thought and the rights to (mental) privacy and integrity, as well as the fact that claims of mental privacy and autonomy are to be considered core elements of these existing rights—thus leaving the core meaning uncompromised.

In summary, considering that existing rights such as the freedom of thought, the right to privacy, and the right to integrity already offer protection to people’s minds, the case for introducing new human rights dedicated to safeguarding the realms of the mind and brain must be substantiated by very compelling arguments. Most prominently, the freedom of thought comprises a right not to have one’s thoughts impermissibly altered nor to reveal one’s thought against one’s will. Despite the conceptual underdevelopment of these claims, they serve as robust foundations for establishing the necessary safeguards to uphold human dignity in contexts where NT facilitates access to people’s mental sphere. Their unlocked potential warrants exploration and refinement (Istace 2024). Nonetheless, it should be stressed that the redundancy argument on its own, while significant, is no definitive deathblow for the New Rights Approach. Further examination of other factors may reveal compelling reasons to opt for this strategy.

4.1.2 Highlighting the importance of the issue at stake versus the ‘neurohype’.

Another facet to consider pertains to the need for novel human rights not in terms of substance, but on a symbolic level. One of the central challenges in the neurorights debate is finding the delicate balance between highlighting the importance of countering the fundamental challenges posed by NTs and not getting captivated by a neurohype narrative. This neurohype narrative tends to portray ‘everything neuro’¹² as a revolutionary change—either positive or negative—in people’s life and society at large. The neurohype reflects two interconnected phenomena: neuroessentialism and neuroexceptionalism. Neuroessentialism entails an (overly) strong emphasis on the explanatory and causal role of neural structures and events in mental, behavioural, and social phenomena, often stemming from a strong reductionist view on the relationship between the brain and the mind. It is important to approach this relationship cautiously within disciplines such as the social sciences and humanities, and to avoid a reductionist stance without a strong metaphysical underpinning (Bublitz 2023). The brain can be seen as an indispensable enabler of the human mind and subjective experience, yet any further claims of how the brain and the mind work and relate is subject of vivid philosophical and scientific debate. Neuroessentialism contributes to an overestimation of both the present and future capacities of NT to intrude into individuals’ mental spheres, leading to an overly alarmistic view on the transformative impact of NT on people’s lives, potentially resulting in excessive reactionary regulation. New rights should be created only when they address substantial and recurrent threats (Nickel 1987). It is crucial, therefore, to proactively discern genuine ethical challenges stemming from NT, while avoiding the creation of scenarios unsupported by scientific evidence.

In addition, neurohype is a manifestation of neuroexceptionalism, which views the opportunities and challenges associated with the growing access to the human brain as unprecedented and unique. The notion ‘neurorights’ itself reveals a strong focus on brain-related issues, disregarding other instances, unrelated to NT, where an enhanced protection of the human mind may also be beneficial. For instance, everyday practices such as marketing, and psychotherapy also aim to influence the mental sphere. While NT interferes with people’s mental states in a different way from many other forms of mental influencing, the question arises of whether this specificity justifies creating an entirely new neuro-specific right. Proposed new rights address challenges that arise in various other contexts as well. For example, online algorithms that target specific vulnerable groups can significantly influence individuals’ decision-making processes in an unacceptable way (Susser et al. 2019; Filho and Firmo 2023), often more effectively than NTs at present. There may be reasons to treat the challenges posed by the ability of NT to interfere with the mind differently from similar threats emanating from aggressive marketing practices or digital algorithms. Perhaps it is necessary to explicitly regulate at the level of neurons to adequately protect the human mind in an era where technologies interfere with it through the brain. However, those reasons should be made explicit. Otherwise, it may be more appropriate to establish a coherent set of principles within the existing framework that addresses the vulnerability of the human mind to external intrusion holistically, instead of formulating principles specifically tailored to a single source of intrusion. This concern with neuroexceptionalism does not conclusively negate the argument for new stand-alone human rights. Bublitz suggested that a right to mental self-determination could be of an added value to protect the mental sphere against new technologies, as well as against other threats such as drugs, advertisements, and nudging (Bublitz 2020). Suggestions like this (which do not necessarily take a side in the debate) deliberately avoid neuroexceptionalism.

It could be argued that the calls for the establishment of neurorights itself, rather than more broadly ‘rights for the mind’, is a manifestation of neurohype. However, calls to establish a series of new stand-alone rights to protect the brain and mind against NTs, rather than developing neurorights as claims inherent to existing rights that are broadly applicable in different contexts, seem to be an even more radical reflection of this hype. These neurohype considerations should be viewed against the backdrop of the idea that, while neurorights advocacy may be perceived as capitalizing on this narrative, it also serves as an essential tool to underscore the significance of current and upcoming challenges. Introducing new rights would signify the acknowledgement of the potential gravity of the disruptive effects of NTs. Identifying a new legal right carries significant symbolic weight. This symbolic value plays out on two levels. First, it highlights the importance of the issue at hand and emphasizes the necessity for an effective legal response, signalling a noteworthy paradigm shift, shaping normative beliefs, and potentially elevating its priority level (Handl 2020). Second, proposals for new rights contribute to the development of a conceptual and linguistic framework, shedding ‘light on the dearth of conceptual thinking with regard to the scope and limits of’ the legal protection of the mind (Michalowski 2020). They serve as valuable tools providing stakeholders with a framework and platform to find each other, rally support for their common goal, raise public awareness, and optimize advocacy strategies (Garret et al. 2021). However, while symbolic value is crucial in the idea phase, more substantive considerations should guide actual regulatory decisions.

In short, there is a delicate balance between exercising caution in evaluating the societal impact of NT, and the imperative for timely and incisive regulatory action to neutralize negative effects before they materialize and become difficult to control. The precautionary principle constitutes a classic approach to this dilemma (Navarro and Dura-Bernal 2023). With the prospect of escalation of ethical concerns driven by the pace and direction of ongoing neurotechnological development, it becomes essential and timely to engage in anticipatory reflection on its normative implications. Nevertheless, despite the symbolic significance, the current uncertainties surrounding the ethical and scientific impacts of NTs underscore the need for substantive and compelling reasons to introduce new human rights.

4.2 Feasibility

The feasibility of introducing neurorights, whether by adopting new rights or by deriving them from existing rights, will be evaluated on conceptual as well as a practical or political grounds. According to Garret et al., recognizing new stand-alone rights poses greater challenges on both levels (Garret et al. 2021). It will be assessed whether this assertion holds true in the neurorights context, and, if so, whether it is of decisive importance.

4.2.1 Conceptual level.

On a conceptual level, various criteria should be highlighted. Neurorights need to be clear and precise, their position vis-à-vis other rights within the human rights framework should be evident, and the conceptual framework should garner transcultural support to facilitate a harmonized interpretation. Which strategy best facilitates these objectives?

4.2.1.1 Clarity.

Newly proposed rights must be sufficiently precise. Both their meaning and scope should be delineated in a way that allows for the prediction of what rights and obligations they give rise to in specific contexts. Abstract principles are valuable, but plenty of them are already available. This also holds true in the context of neurorights. For instance, the right to freedom of thought entails the right not to reveal one’s thoughts against one’s will, and the right not to have one’s thoughts unduly altered (UN Special Rapporteur 2021). Similarly, the right to privacy aims at protecting a private inner space where individuals are free from external intrusion, ‘be that in their head or in their home’ (Marshall 2009: 3). General principles protecting mental autonomy, privacy, and integrity are present in the human rights framework. What is missing, however, is a translation of these general principles into more detailed principles indicating how and to what extent these protect the human mind against interferences by NT.

The proposals for introducing new rights outlined earlier aim to provide more concrete protection in this regard. While they vary in their degree of substantial conceptualization, they are generally abstract and lack clear guidelines for the regulation of NTs (Borbón and Borbón 2021). Currently, there is no consensus on both the conceptual-normative boundaries, nor the labels for new neurorights (O’Sullivan et al. 2021). Admittedly, creating new human rights that govern people’s mental life while avoiding platitudes devoid of substantive legal content is a complex endeavour. Nevertheless, laying down such foundations is crucial for advancing policy in this area. For instance, focusing on the right to personal identity as proposed by the Neurorights Foundation, the necessary conclusion is that its substance remains overly vague. It would ‘prohibit the disruption of the sense of self’.¹³ What does this entail? What is a ‘sense of self’, and which actions unduly interfere with it? And, importantly, how does this philosophical concept translate to the legal realm? This broad principle requires substantial elaboration—on a philosophical as well as legal front—for it to give rise to clear rights and obligations and specify what uses of NT would violate these rights. The same applies to other proposed rights, particularly the right to mental privacy and the right to free will.

Alternatively, instead of introducing new abstract rights, an in-depth elaboration of existing rights will give rise to more precise legal safeguards. For instance, the right to personal identity is—implicitly—protected within multiple regional and international human rights instruments, and is intimately intertwined with the right to autonomy. One of its core principles is the freedom to ‘develop one’s identity, and to live one’s life in the manner of one’s choosing’ (Moreham 2008: 42). While this principle may be overly vague in its current form, it offers general anchor points (Istace 2023). Instead of introducing a new general principle labelled a right to personal identity, it would be preferable to expand on the existing right, determining which uses of NT prohibit individuals to autonomously control the processes underlying their choices, beliefs, and other identity constituting features. Additionally, perhaps a more effective approach to addressing the concerns typically associated with ‘personal identity’ and ‘sense of self’, could be the development of the freedom of thought. This freedom, as a right not to have one’s thoughts unduly altered, could be further fleshed out as to enable identifying uses of NT that constitute unacceptable mental manipulation, underlying legally relevant disruptions of one’s ‘personal identity’. However, while focussing on refining established principles and concepts is preferable to introducing new abstract rights, this approach also raises significant conceptual challenges. Simply claiming that it is much easier to derive human rights principles than to create new rights is an oversimplification. Although deriving rights from existing ones essentially involves uncovering ‘what these human rights always meant to protect’ (Letsas 2013), a creation aspect cannot be entirely avoided (Thielen 2021).

4.2.1.2 Coherence.

Closely related to the condition of clarity is that of coherence of the human rights framework. When introducing neurorights, it is crucial to avoid ambiguities and conflicts with existing rights. There should be careful consideration of both the conceptual and linguistic interplay between new rights and principles and the existing body of rights. Conceptually, it is again essential to define with precision the meaning and scope of newly proposed rights to clarify how they relate to existing rights. Linguistically, it is important to use terms that have been agreed upon internationally in human rights law and policy consistently and clearly, to avoid any ambiguity regarding what they refer to. Introducing new rights presents both advantages and challenges regarding coherence. Starting from a blank canvas offers notable benefits. Consider the example of a right to mental integrity. If a Universal Declaration on Neuroscience and Human Rights were to be established to include this new right, it could be specifically tailored to address instances of neurotechnological intrusion into the mind. It could serve as a lex specialis applicable to only a limited number of cases where NT is the source of a human rights violation. This focused scope may facilitate an easier and clearer determination of the right’s meaning, as it would not impact a broad range of other situations. Identifying specific instances where neurotechnological manipulation of mental processes is unacceptable is more straightforward than defining in general what constitutes an impermissible mental interference. Nevertheless, the existence of a lex specialis with a limited scope does not preclude the potential applicability of other established rights, such as the freedom of thought or the right to privacy. The relationship between these different rights will remain an important factor that needs to be clarified, especially when some applicable rights are relative in nature, and other are absolute—such as the freedom of thought.

This hurdle seems to be less daunting if neurorights were to be derived from existing rights. With the derivation of implied rights from a parent right, ‘the argumentative links to established human rights are more readily apparent’ (Thielen 2021: 840). The relationship between the more general ‘parent right’ and more specific derived right would constitute less of a problem, as the scope of the derived right is necessarily limited to that of the parent right. For instance, if the right not to have one’s mental states revealed, for instance by means of NT, were specifically articulated as part of the right to privacy, it would necessarily fall within the scope of that right. Consequently, the right not to have one’s mental states revealed would be a relative right which may be interfered with when the conditions of legality, legitimacy, and proportionality are met. The Derivation Approach would provide a significant degree of coherence within the overreaching framework established to protect against mental interferences. Importantly, this does not diminish the necessity for clarification within the current human rights framework regarding the interrelation of existing rights, particularly in delineating the scope of the absolute freedom of thought from the relative rights to mental privacy and integrity.

4.2.1.3 Universality.

A third conceptual factor that has to be considered is universality. The objective here is not to advocate for, nor extensively explore, the issue of cultural relativism of morality and human rights. Nonetheless, considering that ‘fundamental and unique contextual and culturally-shaped perceptions, interpretations and meanings underlie many of the aforementioned specific brain and mind issues’ (Herrera-Ferrá et al. 2022: 363), the contextual elements that shape the development of neurorights are expected to, and indeed should, have an impact on the human rights approach towards NT.

The factor of universality plays a role at both a conceptual and political level. Conceptually, there may be a ‘non-universal understanding, meaning, priority and value given to current neuroscientific knowledge’ (Herrera-Ferrá et al. 2022: 346). The impact of NT developments on individuals, society, and the human condition, as well as the normative framework within which this is framed, may be perceived differently across different cultural contexts, each characterized by different philosophical and ethical standpoints. At the most fundamental philosophical level, it is crucial to recognize the different perspectives on the relation between the brain and mind, ensuring that the reductionist view, predominant in the West, is not (implicitly) considered the universal standard (Bublitz 2023). Furthermore, philosophical and normative concepts such as autonomy and free will vary culturally (Muñoz et al. 2023). The task of formulating legal principles and definitions based on these concepts in a transcultural and transregional context should proceed with caution, mindful of falling into Western-centric biases. Establishing a global normative framework that safeguards the privacy and autonomy of the mind and enables a universal interpretation of the human rights associated with it, within a transcultural and transregional context, represents a formidable challenge (Carraro 2019; Ota 2023).

This issue of conceptual universality similarly applies to both the New Rights and the Derivation approaches. Both approaches necessitate the formulation of new or refined normative principles pertaining to the mental realm. For instance, determining the criteria that classify certain forms of mental influence as mental manipulation is crucial for ensuring the efficacy of the freedom of thought in safeguarding against intrusions by NT. This presupposes a conceptual and normative philosophical assessment, which will vary across cultures. Hence, whether a right against mental manipulation is further developed within the framework of the freedom of thought or established through a new human right to cognitive liberty or mental integrity, the conceptual challenge of defining mental manipulation persists. Ultimately, the issue of universality is inherent to international human rights law and will not be a decisive factor in the current debate. The establishment of previous human rights instruments demonstrates that, despite cultural and regional differences, a consensus can be reached on the formulation of a minimal core of protection needed to safeguard human dignity and the fundamental principles emanating from it. Herrera-Ferrá et al. aptly point out that, in spite of varied interpretations of ‘privacy’, a right to mental privacy seems to be a normative concept that transcends cultural and regional boundaries. This is reflected by the legislative actions of different regulators moving towards the protection of such a right in response to neurotechnological advancements (Herrera-Ferrá et al. 2022), which suggests that cultural relativism may not impede the establishment of neurorights. Moreover, the need to safeguard autonomous control over mental processes and their external exposure appears widely acknowledged as essential for upholding various human rights (Bublitz 2020). While defining human rights protections for the human mind may not result in universal philosophical definitions of ‘mental autonomy’ or ‘personal identity’, it may provide operational legal and ethical core standards (Muñoz 2019).

4.2.2 Political level.

On a political level, the binding or non-binding nature of the instrument chosen for the introduction of neurorights, as well as legitimacy concerns related to these instruments, will be decisive. From a political-pragmatic perspective, the ideal strategy for the introduction of neurorights should avoid or minimize contentious political negotiations whenever possible. This implies that when a Derivation Approach is viable, it should be assessed as to whether investing political capital in negotiating a new treaty with binding norms is worthwhile and will yield tangible results. States may be more willing to recognize new rights if they help define the treaty’s objectives, scope, and enforcement mechanisms.¹⁴ However, cultural and ideological differences, along with (unrelated) national interests, can cause fundamental disagreements in the treaty-making process regarding whether and how NT should be addressed by human rights law. By way of illustration, in the debate regarding the necessity of establishing a legally binding right to development, many States favour alternative regulatory strategies over the introduction of such a right (UN Statement 2023). Considering these challenges and the unavoidable complexities of political and diplomatic negotiations, adopting an international treaty or protocol to amend key human rights instruments like the Universal Declaration on Human Rights (UDHR) or even the ICCPR—as suggested by the Neurorights Foundation (Yuste et al. 2021) and the EU Parliament (EU Parliament 2022)—appears highly impractical.

Through this pragmatic lens, the Derivation Approach seems most feasible. An analogy can be drawn with the strategic decision to frame sexual and reproductive rights as inherent elements of existing rights (including the right to health and the general autonomy rights), rather than proposing them as new rights, to circumvent difficult negotiations (Brems 2020). The fewer political hurdles of non-binding soft-law instruments makes them a feasible option for deriving neurorights, given the international community’s proactive approach to human rights standard-setting and its reluctance to leave this solely to the courts. While such a standard-setting process is less politically charged as it does not aim for additional binding obligations, the involvement of governmental representatives in the UN Human Right Council (HRC) still leaves room for political influence (Freedman and Houghton 2017).¹⁵ It is difficult to foresee the extent to which national interests may affect the human rights standard-setting process regarding NT in an international context. Nevertheless, the drafting of the Universal Declaration on the Human Genome by UNESCO’s International Bioethics Committee (IBC) demonstrates the possibility of establishing a (non-binding) principle-based instrument. Although this process was marked by political bargaining and compromise (Harmon 2005), it illustrates that representatives of national government are capable of reaching a consensus on a standard-setting instrument drafted by an international panel of experts in biomedicine and bioethics. It needs to be emphasized that the approach least hindered by political constraints is the evolutive interpretation adopted by courts. It is therefore imperative to encourage courts to actively engage with the human rights protection of the human mind, whether this involves addressing infringements involving NTs or other instances such as online algorithmic manipulation. Moreover, unlike soft-law instruments, case law provides binding human rights interpretations that in turn may influence the shape of soft-law instruments. Nonetheless, on the downside, it leaves room for contestation and lacks explicit provisions to prevent regression (Brems 2020).

This pragmatic consideration should be appreciated in light of the benefits offered by the introduction of a new treaty, especially in terms of legitimacy. Adopting a new treaty ensures strong consensus among ratifying parties committed to fulfilling binding obligations, and therefore strengthens the democratic legitimacy. Conversely, adopting a Derivation Approach and developing neurorights through case law or interpretative soft-law instruments may face criticism for lacking legitimacy (Candia Falcon 2015). The acceptance by state governments of human rights standard-setting through a Derivation Approach remains uncertain as State parties have frequently raised concerns about the erosion of sovereignty resulting from evolutive interpretations of existing rights (Schlütter 2012; McCall-Smith 2016).

4.2.3 Enforcement and monitoring mechanisms.

Efficient implementation mechanisms are pivotal for advancing international human rights law (UN General Assembly 1986). Enforceability is crucial for elevating human rights law from aspirational standards into tangible rights and obligations in people’s lives. Yet, establishing effective monitoring and enforcement mechanisms remains a persistent challenge (Collingsworth 2002). Ideally, the implementation of human rights should occur seamlessly through national legislation, eliminating the need for enforcement (Heyns and Viljoen 2001). Nevertheless, mechanisms must be in place for scenarios when this ideal scenario does not materialize.

Enforcing human rights poses inherent challenges, whether through mechanisms associated with existing treaties like the ICCPR or through new enforcement tools linked to newly created human rights. When opting for a Derivation Approach, the traditional enforcement tools must be utilized. Within the UN framework, this entails assessing the human rights impact of NT in various mechanisms, including Universal Periodic Reviews, Special Procedures, Complaint Procedures, and Treaty Body Reports. However, neurorights, when considered as interpretative principles, lack binding force (unless they are established as international customary law), thereby limiting strict enforcement. In addition, the effectiveness of existing enforcement mechanisms within the UN framework faces significant criticism (Kaye 2023). Consequently, the adequacy of existing mechanisms in effectively addressing the complex human rights challenges posed by emerging technologies may be questioned, prompting consideration of the need for additional enforcement tools. To ensure the effective enforcement of new treaty rights, it is essential for this treaty to include comprehensive monitoring and enforcement provisions. The binding nature of treaty rights enhances the potential for implementing effective enforcement mechanisms. Yuste et al. propose two monitoring mechanisms for new human rights: appointing a UN Special Rapporteur on the Impact of Neurotechnology and Human Rights, tasked with overseeing progress and identifying potential violations of neurorights, and a specialized agency dedicated to adopting and coordinating the global implementation of neurorights (Yuste et al. 2021). This proposal reflects the structure of UN specialized treaty bodies, which are committees of independent experts responsible for monitoring States’ compliance with major UN human rights treaties (Carrero 2019).

5. Conclusion

This article explored the formal dimension of updating the human rights framework in light of neurotechnological advancements. It thoroughly examined two strategies for the establishment of neurorights: a New Rights Approach and a Derivation Approach. After evaluating both options in terms of necessity and feasibility, it becomes apparent that introducing neurorights as new human rights faces significant conceptual and political challenges, rendering it a less appealing option. The proposed new human rights lack clarity in meaning and scope, while political obstacles impede the prompt establishment of effective human rights safeguards through binding treaties or soft-law instruments. Therefore, prioritizing the exploration of the unlocked potential of existing rights emerges as the more preferable way to advance the human rights framework in response to neurotechnological advancements. While vulnerable to criticism for its perceived lack of legitimacy, deriving rights from existing human rights, including the freedom of thought, the right to privacy, and the right to mental integrity, emerges as the most viable approach. This Derivation Approach offers the best guarantee for coherence and facilitates the formulation of specialized principles that can serve as the basis for the regulation of NT, while best avoiding the pitfalls of neurohype. Although the Derivation Approach can be achieved through jurisprudence, the creation of a soft-law instrument should be considered. Such an instrument would provide a coherent framework that guides courts in their decisions and assists legislators in shaping national and international regulations on NT, all the while maintaining a focus on upholding human dignity.

While the Derivation Approach is preferred, it nevertheless requires considerable doctrinal groundwork. This includes reflection on fundamental ethical issues, including defining what constitutes illegitimate mental interference and determining the justifiability of gathering mental information. Legal-technical matters also demand attention, such as determining whether certain normative claims should be derived from absolute rights, and clarifying the interaction between different human rights. Addressing these questions is crucial for advancing ongoing policy initiatives.

Lastly, it is important to recognize that proposals for new human rights have sparked essential discussions, highlighting the need for an updated human rights framework, and laying the conceptual foundation necessary to facilitate the debate about such an update. Although introducing new rights may not be the optimal solution to address the challenges posed by NT, their symbolic impact and conceptual development are vital for advancing neurorights policy.

Acknowledgements

The author would like to express his gratitude to the members of the Minding Rights Network for their insightful feedback. Their acknowledgment does not imply their endorsement of the ideas presented in this article. Any errors or shortcomings remain solely the author’s responsibility.

Conflict of Interest

None declared.

Funding

Fonds Wetenschappelijk Onderzoek, Grant no. 45218

References

Footnotes

Author notes