Establishing Neurorights: New Rights versus Derived Rights

Abstract

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.