Pérez Luño (2010, p. 50) defines human rights as “a set of faculties and institutions that, in each historical moment, specify the demands of dignity, freedom and equality, which must be positively recognized by the legal systems at the national and international level”.
We would like to highlight the reference to history in this definition, or as Pérez Luño best expressed it, to “each historical moment”, since the first thing the very evolution of life and society — materialized in this case in scientific and technological advances — affects, by way of a court of law, is human rights.
Specifically, in view of these developments, the object of study in this article is new technology and the history of human rights.
The approach we have chosen to explore is the well-known classification of human rights developed by Karel Vašák in 1979, which divides them into three generations using a taxonomic classification based on the three principles of the French Revolution: liberté, égalité, fraternité (liberty, equality and fraternity [or solidarity]).
History itself has shown that such a classification is necessarily open, because as advances of all kinds — and as regards those of a scientific and technological nature — progress, such advances affect human rights.
Hence the research questions are in the following sense: 1) To what extent does scientific progress, and especially today, technological and biotechnological progress, affect human rights? 2) If it affects them, could such effect be negative and, therefore, jeopardize one human right more than another? 3) If so, which one(s) in particular?
The methodology is necessarily qualitative, based on indirect observation and inference, a method that is not exempt from descriptive, explanatory and exploratory/confirmatory analysis.
The overall aim is to determine whether the most advanced technology, more specifically Artificial Intelligence (hereinafter AI) and Neuroscience, violates or potentially violates the field of human rights.
The specific aims correspond to the paragraphs of this article.
This is what we are trying to analyze in this scientific paper.
1. KAREL VAŠÁK: THREE GENERATIONS OF HUMAN RIGHTS
As we previously said, the division of human rights into three generations was first proposed by Karel Vašák in 1979. Each one is associated with one of the major values proclaimed in the French Revolution: liberty, equality, fraternity.
First-generation civil and political rights are those that affect the expression of freedom of individuals. They were intended to limit the power of the State (monarchical absolutism) over individuals, in an attempt to prevent the unlawful interference of political power in the consciences and other private areas of the citizen.
We can mark their beginning in the United States Declaration of Independence, of 4 July, 1776; and the Declaration of the Rights of Man and of the Citizen of 1789, resulting from the French Revolution.
According to some authors (Bustamante, 2001), it was constitutionalism and progressive liberalism that promoted the inclusion of these rights in the Constitutions of the European nation-states at the end of the eighteenth century and during the nineteenth century, thus facilitating the universalization of basic civil and political rights.
However, it is more common to recognize the merits of rationalist natural law (iusnaturalism), somewhat prior to that era, which considers human rights as natural rights because “it conceives the existence of a Natural Law as a code of general, universal, and immutable norms, [and that] has a very specific historical impact on the emergence of human rights as rights inherent to man that the State recognizes and guarantees” (E. Bea in De Lucas, 1997, p. 328).
The right to privacy of the person, to his freedom from the State, his physical integrity or procedural guarantees, are rights supported by iusnaturalism, the philosophy of enlightenment and the social contract theories: Grocio, Pufendorf, Locke, Rousseau, etc.
Second-generation economic, social and cultural rights are incorporated from a tradition of humanist and socialist thought, specifically from the late nineteenth and first half of the twentieth century. They were driven by Marx, Engels and the Constitution of the Weimar Republic. They are, as we mentioned, economic and social in nature, and affect the expression of equality of individuals.
First-generation rights defended citizens against State power, but some State intervention is now required to ensure equal access to rights that cannot be achieved autonomously (or not all can be achieved).
The State is thus called upon to guarantee access to education, work, health, social protection, housing, wages, rest, suffrage, etc.
The so-called rights of solidarity constitute a third generation that historically materialized in the second half of the twentieth century, mainly after the Second World War.
According to Bustamante (2001), this time, they were driven by the action of certain groups that demand legitimate rights. They began to take the form of sector-specific declarations that protect the rights of discriminated groups: age groups, ethnic or religious minorities, the unemployed, and Third World countries, which are affected by some of the many manifestations of economic and/or social discrimination.
They are intended to combat the alienation of the individual (Ballesteros, 1992, pp. 137 et seq.).
Bustamante goes on to say that the rights to peace and international justice are beginning to be strongly demanded, to be able to intervene from supranational institutions in local armed conflicts, imposing peace from a legitimate force. Other rights demanded include the right to choose models of sustainable development that guarantee diversity and preserve the natural environment as well as the cultural heritage of mankind.
2. COMPUTERS AND HUMAN RIGHTS
With the advent of computers in our lives and biotechnological advances in the field of life and health sciences, some scholars in the field have called for a new generation of human rights.
We are not going to discuss the influence of computers in our daily lives. We all live it in our day-to-day and, therefore, we are not going to learn anything in this sense.
However, such advances in computer science, for example, have given rise in research and teaching to the so-called Education 3.0, i.e., the use of new tools employed as resources for teaching classes or for scientific research (articles 26, 27 of the Universal Declaration of Human Rights), such as media or search engines, very useful and common today, but which can sometimes violate, for instance, intellectual property rights. That is why care must be taken when using them.
Furthermore, the sale or publication of leisure goods through the Internet, the use of social networks, in addition to the appearance of new crimes, now computer-related, has led to rethinking certain rights that may be violated, such as economic rights (extortion, article 243; fraud, articles 248 et seq., all of them of the Criminal Code), or that the protection of personal data must be better safeguarded (such as Organic Law 3/18 on the protection of personal data and guarantee of digital rights and Organic Law 7/21 on the protection of personal data processed for the purposes of prevention, detection, investigation and prosecution of criminal offences and enforcement of criminal sanctions).
Article 18.4 of the Spanish Constitution (legislative regulation on the use of information technology), Articles 8.1 of the European Charter of Fundamental Rights and 16.1 of the Treaty on the Functioning of the European Union (protection of personal data) have become more important today than ever.
Digital rights therefore emerge.
For their part, biotechnological advances mean that classic concepts of law have to be revised, “reinvented” or “reclassified”. Without looking very far, consider the effects of preimplantation genetic diagnosis on the right to life or, where appropriate, IVF or Surrogacy in family law.
So, if we go one step further, can we already talk about a new generation of human rights 4.0?
3. HUMAN RIGHTS 4.0
The most advanced technologies are influencing our daily lives: from mobile devices, even as watches, to self-driving cars; apps where we can operate routine business, even banking, terms and concepts that we already use in our day-to-day lives without giving them a second thought, such as AI or Big Data.
If they are being used in daily life, they had to reach other more specialized fields as well, especially professionally: Marketing, Economics, Medicine and, of course, Law.
However, what happens in Law, as we have been saying, is that whenever new social fields are opened up, the question arises as to whether the already constructed law should be adapted to the new developments, in this case technological, or whether new rights should be created.
Such questioning continues to be logical because, as we said above, everything evolves, and changes in technology and biotechnology end up influencing rights that, in any event, must be protected; like any change, or rather any new development, it does not cease to have the characteristic of ambiguity, so that depending on the intention or purpose of its use, it may violate rights and, consequently and first of all, human rights.
In this case, however, its mere use already generates the duty of its regulation: who hasn’t been surprised (or no longer surprised) to see a sudden invitation to include new contacts or new topics in our TL simply for giving “likes” on Twitter or Facebook, all the product of algorithms, AI and Big Data?
This situation has consequences in our intimate sphere; what happens is that, being so ordinary, we neither realize nor give it importance. We are innocently giving information no longer about our tastes, but about our preferences and our life choices, knowing even how we think and about what.
If that happens on a daily basis, we avoid speaking when such advances are applied to the field of Medicine.
The quote from Barona (2022, pp. 28-29) that we now cite is long, but necessary reading:
“One need only think of the bionic legs, the artificial hands with a sense of touch, the cardiac pacemaker and above all the brain pacemaker that is shown as the salvation from degenerative diseases of the brain, without forgetting the advances in nanotechnology recently offered by nanobots to be introduced into the human body to eliminate the sequelae of organisms with COVID, etc; these are all advances in which next-generation technology offers an indisputable improvement in human well-being. We must set limits on their extension, which is causing the conversion of Humanity into a Technohumanity, an enhanced or hybridized humanity, a position defended by the transhumanists, who envision the demise of the human being and advocate the improvement of the human creature by the Cyborg (hybrid)”.
Hence, the European Union’s White Paper on Artificial Intelligence, drawn up by the European Commission, makes this resounding statement (2020, p: 13).
“While AI can do much good, including by making products and processes safer, it can also do harm. This harm might be both material (safety and health of individuals, including loss of life, damage to property) and immaterial (loss of privacy, limitations to the right of freedom of expression, human dignity, discrimination for instance in access to employment), and can relate to a wide variety of risks. A regulatory framework should concentrate on how to minimize the various risks of potential harm, in particular the most significant ones.
The main risks related to the use of AI concern the application of rules designed to protect fundamental rights (including personal data and privacy protection and non-discrimination), as well as
safety and liability-related issues”.
We must also consider the development of international standards such as Regulation (EU) 2017/745 on medical devices, not to mention the influence of computer science and technology on patients’ rights, as, for example, is the case of informed consent or medical records, or the possible Medical Civil Liability for the damages that may be caused by the production of defective technology and/or its application with malpractice.
A new Law even appears, Neurolaw (with the ensuing neurorights), which according to Lolas & Cornejo (2017, p. 67) “[…] is nothing more than the interface between all those disciplines agglutinated under the label of neurosciences and law”.
With Bioethics and Biolaw, legal scholars were required to make an effort in the study of disciplines that were previously unrelated to Law. Furthermore, did we lawyers have the right to bring an action that was nothing more than unqualified practice? Was this unqualified practice well intentioned, especially considering that the Laws allow, but also compel and prohibit, i.e., they impose limits?
Aparisi (2007, p. 74) already cautioned when she said: “Also on a factual level, there is a certain reluctance among legal experts to delve into issues that, at first glance, may seem more specific to scientists or moral philosophers. Another possible obstacle to be overcome by biolaw is the “novelty” and specificity that bioethical conflicts imply, the type of reasoning they entail, as well as their aforementioned interdisciplinarity”.
At the beginning, such disciplines resided in Biology and Medicine.
Álvarez (2004, pp. 2-3), for his part, talked about new problems and New Medicine: “Moral decisions have become highly complex decisions during the late twentieth century, for several reasons: on the one hand, the great difficulty inherent in the new problems that are facing us: genetic manipulation, prenatal diagnosis, assisted reproduction techniques, informed consent, brain death, organ transplantation, limitation of therapeutic effort, etc. On the other hand, the area in which these problems arise has been transformed. The growing complexity of healthcare relationships, due to the development of New Medicine, (…).”
Right now though, have the new advances in technology and biotechnology generated new rights? New disciplines? Subdisciplines? Simply specialization? Moreover, it has been so due to their influence on the Law that obliges it to regulate them, since this is actually the appropriate science to protect the rights of people who may be violated by the damages caused by the development and/or application of such advances.
These new technologies must inspire trust, which is why legal certainty (Article 9.3 of the Spanish Constitution) must be one of the fundamental legal principles in this field.
Artificial Intelligence, Big data, algorithms, Neuroscience, Neurolaw, Metaverse, etc., a whole new world that we should, and indeed must, explore. If we remember Barona’s words, it is no exaggeration to say that there is much at stake.
Bioethics Observatory – Institute of Life Sciences
Catholic University of Valencia
Álvarez, J.C. (2004). Comités de Ética Asistencial. Retrieved from: http://envejecimiento.csic.es/documentos/documentos/alvarez-comites-01.pdf
Aparisi, A. (2007). Bioética, bioderecho, biojurídica (Reflexiones desde la filosofía del derecho). Retrieved from:
Ballesteros, J. (Ed.) (1992). Derechos Humanos. Editorial Tecnos: Madrid.
Barona, S. (2022). Justicia algorítmica y neuroderecho. Una mirada multidisciplinar. Editorial Tirant lo Blanch: Valencia.
Bustamante, J. (2001). Hacia la cuarta generación de derechos humanos. Revista electrónica CTS+I, 1. Organización de Estados Iberoamericanos.
Castro Nogueira, L., Castro Nogueira, M. A., & Morales Navarro, J. (2005). Metodología de las ciencias sociales. Editorial Tecnos: Madrid.
Código Penal. Retrieved from: https://www.boe.es/buscar/act.php?id=BOE-A-1995-25444
Comisión Europea. Libro Blanco sobre Inteligencia Artificial – un enfoque europeo orientado a la excelencia y la confianza. Retrieved from:
De Lucas, J. (Coord.) (1997). Introducción a la teoría del derecho. Editorial Tirant lo blanch: Valencia.
García Ferrando, M., et al. (1986). El análisis de la realidad social. Métodos y técnicas de investigación. Alianza Editorial: Madrid.
Legislación Bioética. Retrieved from: https://observatoriobioetica.org
Lolas, F. & Cornejo, I. (2017). Neurociencias, Neurobioética y Derecho: culturas epistémicas y comunidades de práctica. XIX Número especial de Bioética: Buenos Aires (Argentina). Retrieved from: https//:bit.ly/3d9MJ5i
Pérez Luño, A.-E. (2010). Derechos Humanos, Estado de Derecho y Constitución. Editorial Tecnos: Madrid.
Romeo Casabona, C. (coord.). (2022). Manual de Bioderecho (Adaptado para la docencia en ciencias, ciencias de la salud y ciencias sociales y jurídicas). Editorial Dykinson: Madrid.