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Invasive Brain Computer Interface Systems and the Right to Human Flourishing: Extent of Sufficiency of Article 8 of the European Convention of Human Rights to regulate Invasive Brain Computer Interface Systems to ensure the Right to Human Flourishing

Authors:

Abstract

The idea of connecting a computer system to the human brain to enhance performance is no longer in the realm of science fiction. Invasive brain computer interfaces have medical and non-medical uses which can enhance the cognitive capacities of individuals, thereby enabling human beings to gain capabilities which otherwise would not have been possible. Consequently, the technology can enable individuals to flourish and pursue personal development in a manner of their choosing. However, unequitable access to invasive brain computer interfaces can create a cognitive gap and intelligence-asymmetry which can exacerbate the socio-economic inequalities by limiting the ability to access opportunities, economic and overall well-being of a person. Therefore, it is important to determine the extent of sufficiency of the existing primary law under the right to privacy which protects the right to human flourishing for effectively regulating and safeguarding the access to invasive brain computer interfaces.
Invasive Brain Computer Interface Systems and the Right to Human Flourishing
Extent of Sufficiency of Article 8 of the European Convention of Human Rights to regulate
Invasive Brain Computer Interface Systems to ensure the Right to Human Flourishing
LL.M Law and Technology
Tilburg Law School
Tilburg Institute for Law, Technology and Society
Tilburg University
2020-2021
Student: Shreyan Sengupta
SNR: 2051232
Supervisor: Professor Dr. Colette Cuijpers
Second Reader: PhD Candidate, Tjaša Petročnik
CONTENTS
CHAPTER 1: INTRODUCTION ..................................................................................................... 1
Background ................................................................................................................. 1
Problem Statement ...................................................................................................... 4
Literature Review ........................................................................................................ 6
Research Question and Objective ............................................................................... 7
Limitations, Methodologies and Methods ................................................................... 9
Structure of The Thesis ............................................................................................. 10
CHAPTER 2: UNDERSTANDING INVASIVE BRAIN COMPUTER INTERFACES .......................... 11
Introduction ............................................................................................................... 11
Types and Uses of IBCIs ........................................................................................... 12
Risks and Potential Problems .................................................................................... 15
2.3.1. Direct Micro Risks ..................................................................................................... 15
2.3.2. Indirect Macro Risks .................................................................................................. 16
2.3.3. Navigating Through The Risks .................................................................................. 17
CHAPTER 3: THE RIGHT TO HUMAN FLOURISHING & INVASIVE BRAIN COMPUTER
INTERFACES ............................................................................................................................. 18
Scope & Application of Article 8 of the Convention ................................................ 18
Right to Human Flourishing ...................................................................................... 20
3.2.1. Virtue Ethics & Human Flourishing .......................................................................... 21
3.2.2. Interpretation of Article 8 and the Right to Human Flourishing ............................... 23
3.2.3. Christine Goodwin vs. The United Kingdom: A Dynamic Interpretation of Article 8
25
3.2.4. Sentges v. Netherlands: Curtailed Appreciation of the Right to Human Flourishing28
Capability to Access IBCIs for Human Flourishing ................................................. 29
Sufficiency of Article 8: Regulating IBCIs and Protecting the Right to Human
Flourishing ................................................................................................................ 36
CHAPTER 4: ROLE OF THE STATE TO ENSURE THE RIGHT TO HUMAN FLOURISHING ......... 37
Positive Obligations of the State ............................................................................... 37
State Consensus on the Use of IBCIs For Personal Development & Human
Flourishing ................................................................................................................ 40
Means of Ensuring Human Flourishing .................................................................... 43
4.3.1. Influencing Social Norms for Wider Acceptance of IBCIs ....................................... 44
4.3.2. Regulatory Regime for Incentivizing Development of IBCIs ................................... 46
4.3.3. States’ Role in Aiding IBCI Software Development ................................................. 48
CONCLUSION ........................................................................................................................... 51
BIBLIOGRAPHY ........................................................................................................................ 54
1
CHAPTER 1: INTRODUCTION
BACKGROUND
The idea of connecting a computer system to the human brain to enhance performance is no
longer in the realm of science fiction.
1
Brain Computer Interface systems (BCIs) are being
used for the treatment of neurological conditions
2
including Parkinson’s disease,
3
essential
tremors,
4
dystonia,
5
Tourette’s Syndrome,
6
epilepsy,
7
use of neuroprosthetic limbs,
8
use of BCI
1
Maria Chiara Errigo, ‘Neuroenhancement and Law’ in Antonio D’Aloia and Maria Chiara Errigo (eds.),
Neuroscience and Law: Complicated Crossings and New Perspectives (Springer 2020) pg. 189; Benjamin
Blankertz, et al., ‘The Berlin Brain-Computer Interface: Non-Medical Uses of BCI Technology’ (2010) 4
Frontiers in Neuroscience <https://doi.org/10.3389/fnins.2010.00198> accessed 25 July 2021 pg. 2; David Moses,
et al. ‘Neuroprosthesis for Decoding Speech in a Paralyzed Person with Anarthria’ (2021) 385(3) The New
England Journal of Medicine < https://www.nejm.org/doi/full/10.1056/NEJMoa2027540> accessed 25 July 2021;
UC San Francisco, ‘Neuroprosthesis Restores Words to Man with Paralysis’ 15 July 2021,
<https://youtu.be/_GMcf1fXdW8> accessed 16 July 2021; Maggie Fox, ‘Brain implant helps man 'speak' through
a computer’ CNN (15 July 2021) <https://edition.cnn.com/2021/07/15/health/man-speech-implant/index.html>
accessed 16 July 2021; Roberto Portillo-Lara, et al., 'Mind the gap: State-of-the-art technologies and applications
for EEG-based braincomputer interfaces' (2021) 5 APL Bioengineering <https://doi.org/10.1063/5.0047237>
accessed 24 July 2021, pg. 10
2
Paul Holtzheimer and Helen Mayberg, ‘Deep brain stimulation for psychiatric disorders’ (2011) (34) The Annual
Review of Neuroscience <https://doi.org/10.1146/annurev-neuro-061010-113638> accessed 3 January 2021
3
Mark Gasson, et al., ‘Human ICT Implants: From Invasive to Pervasive’ in Mark Gasson, Eleni Kosta and Diana
Bowman (eds.), Human ICT Implants: Technical, Legal and Ethical Considerations (Springer 2012); Mark
Lyons, ‘Deep Brain Stimulation: Current and Future Clinical Applications’ (2011) 86(7) Mayo Clin Proc, 662-
672 <https://dx.doi.org/10.4065%2Fmcp.2011.0045> accessed 25 July 2021; Department of Neurology, UNC
School of Medicine, ‘Deep brain stimulation (2013) <https://www.med.unc.edu/neurology/divisions/movement-
disorders/deep-brain-stimulation/> accessed on 3 January 2021; European Parliament, Directorate General for
Internal Policies, Science and Technology Options Assessment, 'Human Enhancement Study'
IP/A/STOA/FWC/2005-28/SC35, 41 & 45, PE 417.483 (2009) European Parliament 10
<https://www.europarl.europa.eu/stoa/en/document/IPOL-JOIN_ET(2009)417483> pg. 10, 87; Andrea Kübler
and Klaus-Robert Müller, ‘An Introduction to Brain Computer Interfacing’ in Guido Dornhege, Jose del R. Millan,
Thilo Hinterberger, Dennis McFarland and Klaus‑Robert Muller (eds.), Toward Brain‑Computer Interfacing
(MIT Press 2007) pg.2
4
Mark Lyons (2011)
5
Ryszard Tadeusiewicz, et al., ‘Restoring Function: Application Exemplars of Medical ICT Implants’ in Mark
Gasson, Eleni Kosta and Diana Bowman (eds.), Human ICT Implants: Technical, Legal and Ethical
Considerations (Springer 2012); Department of Neurology, UNC School of Medicine (2013)
6
Wenying Xu et al., ‘Deep brain stimulation for Tourette’s syndrome’ (2020) 9(4) Translational
Neurodegeneration <https://doi.org/10.1186/s40035-020-0183-7> accessed 26 September 2020
7
UCLA Health ‘FDA approves deep brain stimulation for treatment of severe epilepsy’ (2019)
<https://www.uclahealth.org/vitalsigns/fda-approves-deep-brain-stimulation-for-treatment-of-severe-epilepsy>
accessed 26 September 2020; Vicenta Salanova, et al., 'Long-term efficacy and safety of thalamic stimulation for
drug-resistant partial epilepsy' 2015 84(10) Neurology
<https://dx.doi.org/10.1212%2FWNL.0000000000001334> accessed 3 January 2021; Thilo Hinterberger et. al.,
‘Brain-Computer Interfaces for Communication in Paralysis: A Clinical Experimental Approach' in Guido
Dornhege, Jose del R. Millan, Thilo Hinterberger, Dennis McFarland and Klaus‑Robert Muller (eds.), Toward
Brain‑Computer Interfacing (MIT Press 2007) pg.44
8
Nicholas Weiler, 'First ‘Plug and Play’ Brain Prosthesis Demonstrated in Paralyzed Person' (University of
California San Francisco, 7 September 2020) <https://www.ucsf.edu/news/2020/09/418396/first-plug-and-play-
brain-prosthesis-demonstrated-paralyzed-person> accessed 26 September 2020
2
controlled wheelchairs
9
or exoskeletons
10
to assist patients with paralysis
11
or locked-in
syndrome such as ALS, spinal cord injury or suffering from tetraplegia to regain mobility,
12
attention training for patients suffering from attention deficit hyperactivity disorder,
13
and
treatment of drug resistant obsessive-compulsive disorder.
14
Further research indicates that
BCIs could allow hands-free typing,
15
emotion
16
and mood tracking,
17
eyesight, hearing
restoration.
18
Such uses are extremely beneficial as it allows individuals to regain a degree of
agency and allows integration into society.
9
Keun-Tae Kim, et. al., ‘Commanding a brain-controlled wheelchair using steady-state somatosensory evoked
potentials’ (2018) 26(3) 654–665 IEEE Transactions on Neural Systems and Rehabilitation Engineering: A
Publication of the IEEE Engineering in Medicine and Biology Society
<https://doi.org/10.1109/TNSRE.2016.2597854> accessed 25 July 2021
10
Alim Louis Benabid, et al., ‘An exoskeleton controlled by an epidural wireless brain-machine interface in a
tetraplegic patient: a proof-of-concept demonstration’ (2019) 18(12) 1112–1122 The Lancet Neurology
<https://doi.org/10.1016/S1474-4422(19)30321-7> accessed 25 July 2021; Ahmed Mohamed Elnady, et al., ‘A
single-session preliminary evaluation of an affordable BCI-controlled arm exoskeleton and motor-proprioception
platform’, 2015 9 Frontiers of Human Neuroscience <https://dx.doi.org/10.3389%2Ffnhum.2015.00168>
accessed 25 July 2021; Thorsten Zander and Laurens Krol, Team PhyPA: Brain-Computer Interfacing for
Everyday Human-Computer Interaction’, Periodica Polytechnica Electrical Engineering and Computer Science,
2017 61(2) <https://doi.org/10.3311/PPee.10435> accessed 25 July 2021, pg. 210
11
Andrea Kübler, et al., ‘The thought translation device: a neurophysiological approach to communication in total
motor paralysis’ (1999) 124 223–232 Experimental Brain Research
<https://link.springer.com/content/pdf/10.1007/s002210050617.pdf> accessed 25 July 2021
12
Maryam Alimardani and Kazuo Hiraki, ‘Passive brain-computer interfaces for enhanced human-robot
interaction’ (2020) (7) 125125 Frontiers in Robotics and AI <https://doi.org/10.3389/frobt.2020.00125>
accessed 25 July 2021; Niels Birbaumer and Aygul Rana, ‘Brain-computer interfaces for communication in
paralysis’ in Amir Raz and Robert Thibault (eds.), ‘Casting Light on the Dark Side of Brain Imaging(2019
Elsevier Science & Technology) <https://doi.org/10.1016/B978-0-12-816179-1.00003-7> accessed 25 July 2021
pg. 25-29; Surjo Soekadar, et al., ‘Brain–machine interfaces in neurorehabilitation of stroke’ (2015) 83, 172179
Neurobiology of Disease < https://doi.org/10.1016/j.nbd.2014.11.025> accessed 25 July 2021; Jonathan Wolpaw,
et al., ‘Brain-computer interfaces for communication and control’ (2002) 113(6) 767791 Clinical
Neurophysiology <https://doi.org/10.1016/s1388-2457(02)00057-3> accessed 3 January 2021 pg. 786; Andrea
Kübler and Klaus-Robert Müller (2007) pg. 6
13
Choon Guan Lim, et al., ‘A randomized controlled trial of a brain-computer interface based attention training
program for ADHD’ (2019) 14 (5) PLOS ONE <https://doi.org/10.1371/journal.pone.0216225> accessed 25 July
2021; Brahim Hamadicharef, et al., ‘Learning EEG-based spectral-spatial patterns for attention level
measurement’ (2009) 1465-1468 IEEE International Symposium on Circuits and Systems
<https://doi.org/10.1109/ISCAS.2009.5118043> accessed 25 July 2021 pg. 1468
14
Medtonic, 'Getting DBS: What to Expect DBS Therapy For OCD’, <https://www.medtronic.com/us-
en/patients/treatments-therapies/deep-brain-stimulation-ocd/about/getting-dbs.html> accessed on 3 January 2021;
Department of Neurology, UNC School of Medicine (2013)
15
Tech@Facebook, ‘Imagining a new interface: Hands-free communication without saying a word(March 30
2020) <https://tech.fb.com/imagining-a-new-interface-hands-free-communication-without-saying-a-word/>
accessed 25 September 2020; Chethan Pandarinath, et al. ‘High Performance Communication by People with
Paralysis using an Intracortical Brain-Computer Interface’ (2017) eLife <https://doi.org/10.7554/elife.18554>
accessed 23 November 2020; Stanford Medicine News Center, ‘Brain-Computer Interface Advance Allows Fast,
Accurate Typing by People with Paralysis,’ Press Release, February 21, 2017 <https://med.stanford.edu/news/all-
news/2017/02/brain-computer-interface-allows-fast-accurate-typing-by-people-with-paralysis.html> accessed 23
November 2020
16
Maryam Alimardani and Kazuo Hiraki (2020); Andrea Kübler and Klaus-Robert Müller (2007) pg. 3
17
Nidhi Subbaraman, 'A "Brainwave-Reading Headband’ that Tracks Your Mood' (MIT Technology Review, 26
October 2012) <https://www.technologyreview.com/2012/10/26/182011/a-brainwave-reading-headband-that-
tracks-your-mood> accessed 25 September 2020; Roberto Portillo-Lara, et al., (2021) pg. 11
18
Towards a High-Resolution, Implantable Neural Interface’ (Defense Advanced Research Projects Agency
DARPA, 10 July 2017) <https://www.darpa.mil/news-events/2017-07-10> accessed 26 September 2020
3
BCIs can be classified primarily in two types (a) Non-invasive BCI are external
physical devices placed externally and composed of sensors and/or stimulators, which are
connected to an external computer system;
19
(b) Invasive BCIs (IBCIs) are physical implants
in the brain, composed of sensors and electrodes, which are connected to an external computer
system.
20
In terms of performance, IBCIs are better than non-invasive BCIs as they provide
more precision and accuracy in recording.
21
Consequently, IBCIs can increase the processing
power and bandwidth of the human brain by removing the sensor-motor bottleneck.
22
Furthermore, certain futuristic uses of IBCIs include increasing the dynamic range of senses,
23
recording and recalling memories,
24
enhancing memory,
25
cyber-thinking
26
or brain-to-brain
communication,
27
inducing savant powers
28
and allowing persons to directly access
information from a computer
29
or surf the world wide web
30
. Hence, such a technology can
shape social and economic order, and can shift the human mind from ‘atoms to bits.
31
Possibly,
19
Gasson, Kosta, Bowman (2012)
20
Nuffield Council on Bioethics, ‘What are Novel Neurotechnologies: Intervening in the Brain’ (2013) Nuffield
Council on Bioethics <https://www.nuffieldbioethics.org/assets/pdfs/Novel-neurotechnologies-report.pdf>
accessed 20 November 2020, pg. 10; Mark Homer et al. 'Sensors and Decoding for Intracortical Brain Computer
Interfaces', (2013) Annual Review of Biomedical Engineering <https://doi.org/10.1146/annurev-bioeng-071910-
124640> accessed 25 July 2021, pg. 15
21
Caroline Lawrence, Zachary Shapiro and Joseph Fins, ‘Brain-Computer Interfaces and The Right to Be Heard:
Calibrating Legal and Clinical Norms in Pursuit of The Patient’s Voice’ (Fall 2019) 33(1) Harvard Journal of Law
& Technology 179; Stephan Waldert, 'Invasive vs. Non-Invasive Neuronal Signals for Brain-Machine Interfaces:
Will One Prevail?' (2016) 10 Frontiers in Neuroscience <https://doi.org/10.3389/fnins.2016.00295> accessed 20
November 2020; Dennis McFarland and Klaus-Robert Muller, 'Invasive BCI Approaches' in Guido Dornhege,
Jose del R. Millan, Thilo Hinterberger, Dennis McFarland and Klaus‑Robert Muller (eds.), Toward
Brain‑Computer Interfacing (MIT Press 2007) 125; Andrea Kübler and Klaus-Robert Müller (2007) pg. 20
22
Thorsten Zander and Laurens Krol (2017), pg. 209; Gasson, Kosta and Bowman (2012); Mark Gasson and Bert-
Jaap Koops, ‘Attacking Human Implants: A New Generation of Cybercrime' (2013) 5 Law Innovation & Tech
248. Traditionally when a person interacts with technology, there are distinct layers of separation between the
user and the machine, which imposes a considerable cognitive load. This difference between what the user wants
to do and what the machine does is called the sensor-motor bottleneck. By creating an effective bi-directional
direct channel between the brain and the machine, the bottleneck would be resolved.
23
European Group on Ethics in Science and New Technologies to the European Commission, 'Ethical aspects of
ICT implants in the human body' (Opinion No. 20) COM (2005) 136 11
24
‘Progress in Quest to Develop a Human Memory Prosthesis’ (Defense Advanced Research Projects Agency
DARPA 28 March 2018) <https://www.darpa.mil/news-events/2018-03-28> accessed 26 September 2020
25
European Group on Ethics in Science and New Technologies to the European Commission (2005), pg.10
26
Gasson and Koops (2013); Mireille Hildebrandt and Bernhard Anrig, ‘Ethical Implications of ICT Implants’ in
Mark Gasson, Eleni Kosta and Diana Bowman (eds), Human ICT Implants: Technical, Legal and Ethical
Considerations Springer (2012); European Group on Ethics in Science and New Technologies to the European
Commission (2005), pg.10; Ellen McGee and Gerald Maguire ‘Becoming Borg to Become Immortal: Regulating
Brain Implant Technologies’ (2007) 16(3) Cambridge Quarterly of Healthcare Ethics. Cyberthinking is the ability
of BCIs to enable a direct link between two or more human brains and/or machines.
27
Bert-Jaap Koops and Ronald Leenes, ‘Cheating with Implants: Implications of the Hidden Information
Advantage of Bionic Ears and Eyes’ in Mark Gasson, Eleni Kosta and Diana Bowman (eds), Human ICT Implants:
Technical, Legal and Ethical Considerations Springer (2012)
28
Ibid. By using repetitive magnetic stimulation, the BCI can create intentional, temporary lesions in the brain,
which can allow the user to achieve temporary ‘savant like’ talents and skill.
29
European Group on Ethics in Science and New Technologies to the European Commission (2005), pg.11
30
Thilo Hinterberger et. al., (2007) pg.50; Benjamin Blankertz, et al., (2010) pg.12
31
Andrew Murray, ‘The World of Bits Oxford Information Technology Law: The Law and Society (2010)
<http://works.bepress.com/andrew_murray/6/> accessed 26 October 2020. ‘Atoms’ refer to the physical object
and ‘bits’ refer to the simplest computer instruction which enables higher computing functions. The phrase atoms
to bits’ refers to the process of digitisation in the post-industrial information economy. Through the use of BCIs,
the human brain could also achieve a partial or full shift from atoms to bits.
4
in the future, IBCIs could become a mainstream
32
device for the mind to exist in ‘bits’ as seen
in ‘Snow Crash.
33
This widespread use can have concomitant side-effects including cognitive
dissonance, cognitive impairment due to overuse, disconnection from the physical reality,
isolation and commodification of memories. Therefore, as IBCIs, in comparison to non-
invasive BCIs, are inherently invasive with the capability to drastically enhance the human
brain and society, this thesis will focus only on the issues arising out of the use of IBCIs.
PROBLEM STATEMENT
The European Court of Human Rights (ECtHR) has held
34
that the right to private and family
life
35
is a broad concept
36
which includes the right to well-being and human flourishing
37
comprising of the right to personal development, physical and moral security
38
which will be
addressed in Chapter 3 of the thesis. In this regard, IBCIs can be an extremely capable
technology to allow individuals to exercise this right to human flourishing. For instance,
persons with disabilities can use this technology to allow them to restore certain cognitive
faculties and regain agency.
39
Moreover, persons without disabilities can use IBCIs to enhance
32
Directorate General for Internal Policies Policy Department A: Economic and Scientific Policy Science and
Technology Options Assessment, ‘Human Enhancement Study' (IP/A/STOA/FWC/2005-28/SC35, 41 & 45)
(2009) 51. From a survey conducted in the United States of America in regard to the use of various kinds of human
enhancement technologies (including BCIs), 45% of the respondents believed that new enhancement
technologies to improve humankind’ should be embraced and 84% of the respondents believed that the
‘government should guarantee equal access ‘to such enhancements.
33
Neal Stephenson, Snow Crash (Bantam Books 1992) In this cyberpunk classic, people have dual lives first,
in the normal world and second, in a virtual space called the ‘metaverse’ though terminals in the real world.
34
Goodwin v. the United Kingdom App no. 28957/95 (ECtHR, 11 July 2002) Para 90; B. v. France App no.
13343/87 (ECtHR, 25 March 1992); European Union Agency for Fundamental Rights and Council of Europe,
Handbook on European Non-Discrimination Law (2018 Edition) pg.141
35
Article 8 of the European Convention on Human Rights
36
Peck v. the United Kingdom, App no. 44647/98 (ECtHR 28 January 2003), Para 57; Smirnova v. Russia, App
nos. 46133/99 and 48183/99 (ECtHR 24 October 2003), Para 95; Pretty v. the United Kingdom, App no. 2346/02
(ECtHR 29 April 2002), Para 61; European Union Agency for Fundamental Rights, Handbook on European data
Protection Law (2018), pg.37; Mikulić v. Croatia, App no. 53176/99 (ECtHR 7 February 2002), Para 53; Schlumpf
v. Switzerland, App no. 29002/06 (ECtHR 5 June 2009), Para 100
37
Bart van der Sloot, ‘Privacy as Human Flourishing: Could a Shift Towards Virtue Ethics Strengthen Privacy
Protection in the age of Big Data?’ (2014) 5(3), 230-244 Journal of Intellectual Property, Information Technology
and Electronic Commerce Law 235; Dissenting Opinion of Judges Costa, Ress, Türmen, Zupančič and Steiner,
Hatton and Others v. the United Kingdom, App No. 36022/97 (ECtHR 8 July 2003) Para 11
38
Smirnova v. Russia, App nos. 46133/99 and 48183/99 (ECtHR 24 October 2003), Para 95; Brüggeman and
Scheuten v. Germany, App no. 6959/75 (Report of the Commission 12 July 1977), Para 55; X v. Iceland , App No.
6825/74 (Commission Decision, 18 May 1976) pg. 87; Reklos and Davourlis v. Greece, App no. 1234/05, Para
39; Evans v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 71; A-M.V. v. Finland, App No.
53251/13 (ECtHR 23 March 2017), Para 76; X and Y v. Romania, App nos. 2145/16 and 20607/16 (ECtHR 19
January 2021), Para 146
39
Andrea Kübler and Klaus-Robert Müller (2007) pg.2
“Yes, it was pretty cool. […] In the beginning it sounds futuristic, like
science fiction, but it is no science fiction, but by now it is science
without fiction.”
- Quote by a BCI user from the interview by Johannes Kögel (2020)
5
their cognitive capacities which would facilitate them to reach for opportunities which
otherwise would not have been possible.
40
Overall, IBCIs can enable persons to reach a degree
of well-being and flourishing which otherwise would not have been possible, either due to
barriers such as physical limitations, socio-economic conditions and social norms.
Technologies are not neutral
41
and often give rise to ethical and legal issues. Although,
it is evident
42
that IBCIs can have immense positive benefits on the lives of individuals,
important concerns relating to data protection and cybersecurity also arise out of the use of this
technology. Due to the inherent invasive nature of this technology, IBCIs pose novel problems
and lead us to unchartered territory. It is possible that IBCIs can be used to exploit the frailties
of the human mind by modulating electrical signals to cause deliberate alterations or
implantation of memories to distort reality.
43
This would negate the basic freedoms of thought,
expression, autonomy of individuals, collapse democracies
44
and would be detrimental to the
right of human flourishing. Nevertheless, in addition to the ameliorating effects of IBCIs,
which restores agency to persons with disabilities, IBCIs could protect the right to human
flourishing by reducing the cognitive gap and thereby improve the socio-economic well-being
of persons. In this regard, it has been observed that access to education and knowledge has a
direct impact with economic well-being
45
which affects the overall well-being of a person. A
similar correlation can be drawn with the access to IBCIs.
Since IBCIs can cause cognitive enhancement and improved intelligence, persons with
access to IBCIs could use these improved cognitive capabilities to continue their personal
development, gain better opportunities, economic well-being
46
and flourish, while existing
marginalised individuals without access to IBCIs would not be able to do the same. Hence, the
problems relating to the access to IBCIs are relevant for the present society and for all future
generations. The cognitive gap and intelligence-asymmetry caused due to the unequal access
to IBCIs can thereby exacerbate the socio-economic gap by limiting the ability to access
opportunities, economic and overall well-being of a person. Therefore, it is important to
determine the extent of sufficiency of the existing primary law which protects the right to
human flourishing for effectively regulating and safeguarding the access to IBCIs. The failure
40
Johannes Kögel, et al. ‘What is it like to use a BCI? insights from an interview study with brain-computer
interface users’ BMC Medical Ethics (2020) 21(2) <https://doi.org/10.1186/s12910-019-0442-2> accessed 25
July 2021
41
Ronald Leenes, ‘Framing Techno-Regulation: An Exploration of State and Non-State Regulation by
Technology’ (2011) Tilburg Law School Research Paper No. 10/2012, <https://ssrn.com/abstract=2182439>
accessed 26 November 2020
42
European Parliament, Directorate General for Internal Policies, Science and Technology Options Assessment
(2009) pg. 87
43
Gasson and Koops (2013)
44
Sean Jensen, et al., ‘SIENNA D3.4: Ethical Analysis of Human Enhancement Technologies’ (2020) 115 Zenodo
<https://www.sienna-project.eu/enhancement/publications/> accessed 8 November 2020
45
Nick Bostrom and Anders Sandberg, ‘Cognitive Enhancement: Methods, Ethics, Regulatory Challenges’ (2009)
15(3) Science and Engineering Ethics <https://doi.org/10.1007/s11948-009-9142-5> accessed 26 September
2020, pg. 311
46
Ibid, pg. 330
6
to address the problem of unequal access to this technology at the initial phase can create
irreparable generational socio-economic inequalities.
47
Such a failure could permanently vitiate the right to human flourishing as protected
under the European Convention on Human Rights (Convention). Consequently, States must
implement policies to allow equitable access to IBCIs for inclusive societal growth and to
prevent marginalisation of economically weaker individuals, for protecting the right to human
flourishing.
LITERATURE REVIEW
Considerable technical literature is available which provide detailed understanding on the
technical aspects of BCIs and further analyses the benefits, risks, potential limitations of the
technology.
48
Furthermore, there is rich literature from philosophers and ethicists providing
arguments for and against the therapeutic and non-therapeutic use of BCIs.
49
Moreover,
available substantive legal literature in regard to the use of BCIs primarily relate to issues
pertaining to data protection,
50
neuro-security,
51
cybercrime,
52
non-therapeutic uses of BCIs,
53
mental autonomy, freedom of thought and right against self-incrimination.
54
However, the existing legal literature does not address the aspect how IBCIs can be
an effective tool for achieving the right to personal development and human flourishing
47
Sarah Chan, 'Neural Interface Technologies: Ethical and Social Dimensions' iHuman Working Group Paper
(2019) <https://royalsociety.org/topics-policy/projects/ihuman-perspective/supplementary-material/>accessed 25
July 2021; Bostrom and Sandberg (2009), pg. 329; Health Council of the Netherlands Centre for Ethics and
Health, Human Enhancement (2003) 15, 16, 18 The report suggests that enhancement can diminish empathy and
solidarity towards individuals who either do not want and/or cannot use such enhancements. Furthermore, due to
economic inequality, everyone will not have the same access to enhancement and ‘the very existence of these
forms will further increase inequality’. This will be even more pronounced in the future ‘if it becomes possible to
pass on the improved characteristics to an offspring’.
48
Günther Deuschl et al., 'A Randomized Trial of Deep-Brain Stimulation for Parkinson’s Disease' (2006) The
New England Journal of Medicine (See Adverse Effects)
<https://www.nejm.org/doi/full/10.1056/nejmoa060281> accessed 23 November 2020; PR Burkhard et al.,
'Suicide After Successful Deep Brain Stimulation for Movement Disorders' (2004) Neurology
<https://doi.org/10.1212/01.wnl.0000145603.48221.b5> accessed 23 November 2020
49
Bert-Jaap Koops, ‘The Role of Framing and Metaphor in the Therapy versus Enhancement Argument’ (2013)
Tilburg Law School Research Paper No. 10/2014, <https://ssrn.com/abstract=2419728> accessed 27 September
2020; Norman Daniels, ‘Normal Functioning and the Treatment-Enhancement Distinction’ (2000) Cambridge
Quarterly of Healthcare Ethics 9(3); James Sabin and Norman Daniels, 'Medical Necessity in Mental Health
Practice' (1994) 24(6) The Hastings Center Report; Fritz Allhoff, et al., 'Ethics of Human Enhancement: 25
Questions & Answers' (2009) US National Science Foundation; Nick Bostrom and Julian Savulescu, 'Human
Enhancement Ethics: The State of the Debate' (2009) Oxford University Press
50
Liam Drew, ‘The ethics of brain–computer interfaces’ (2019) Nature
51
Tamara Denning, et al., 'Neurosecurity: Security and Privacy for Neural devices' (2009) Journal of
Neurosurgery <https://doi.org/10.3171/2009.4.FOCUS0985> accessed 22 November 2020; Sergio López Bernal,
et al., Cyberattacks on Miniature Brain Implants to Disrupt Spontaneous Neural Signaling, (IEEE Access 2020)
52
Marcello Ienca and Pim Haselager, ‘Hacking the brain: braincomputer interfacing technology and the ethics
of Neurosecurity’ Ethics and Information Technology (2016) 18
53
Bert-Jaap Koops (2013)
54
Nita A Farahany, ‘Incriminating Thoughts’ (2011) Stanford Law Review 64, 351
<https://ssrn.com/abstract=1783101> accessed 23 November 2020; Pim Haselager, ‘Did I Do That? Brain–
Computer Interfacing and the Sense of Agency’ Minds & Machines (2013) 23 405–418, pg. 413-416
7
guaranteed under Article 8.
55
As the technical literature indicates, IBCIs can improve the
cognitive abilities of individuals, hence we should not limit the decision on whether or not
IBCIs should be used for non-therapeutic uses, and we should consider allowing such cognitive
enhancements through the use of IBCIs as a part of the evolutionary process of an individual.
56
Reluctance to permit the use of such technologies (with sufficient checks and safeguards)
would seem to be contrary to the State’s positive obligation to promote human flourishing and
well-being.
57
In addition, refusal to consider the use of IBCIs as a means for achieving human
flourishing as a regulatory target by the State would only exacerbate the pacing problem.
58
Currently, the use of IBCIs is primarily limited due to specialized technical know-how, the
need for expensive surgery and post-operative care. Therefore, the State must be conscious of
the possible widespread irreparable generational socio-economic gap which may be created if
this technology is not made accessible to all individuals in an equitable manner.
RESEARCH QUESTION AND OBJECTIVE
Since existing legal literature does not particularly deal with the interplay between the use of
IBCIs for achieving and protecting the right to human flourishing, this thesis will review to
what extent Article 8 of the Convention as a primary law in the EU is sufficient for regulating
the use of IBCIs to ensure that the right to human flourishing is protected. Furthermore, as
access to specialised surgery is a pre-requisite for using IBCIs to achieve human flourishing,
this thesis will also investigate the viable actions the State should take to address the bioethical
issue relating to the access to treatment.
Therefore, for the State to prepare policies on regulating access to IBCIs, we should
first analyse and determine the extent to which the primary law is sufficient. Hence, the thesis
will answer the following main research question:
To what extent is Article 8 of the Convention sufficient to regulate IBCIs for protecting
the right of human flourishing and addressing the bioethical issue relating to access
to treatment?
55
Goodwin v. the United Kingdom App no. 28957/95 (ECtHR, 11 July 2002) para 90; B. v. France App no.
13343/87 (ECtHR, 25 March 1992); European Union Agency for Fundamental Rights and Council of Europe
(2018), pg. 141
56
John Harris, ‘Enhancing Evolution: The Ethical Case for Making Better People’ (2010) Princeton University
Press. All living beings have constantly improved and evolved, either by natural selection or otherwise through
education and technology. Therefore, a cognitive enhancement by using IBCIs should be considered as another
aspect of the evolution with the aim of flourishing.; Health Council of the Netherlands Centre for Ethics and
Health (2003), pg. 10. The report also states that societies have used resources such as education to ‘deliberately
bring human capacities to a higher plane’.
57
Anders Sandberg, ‘Morphological Freedom Why We Not Just Want It, but Need It’ Wiley (2013)
58
Gary Marchant, et al., ‘The Growing Gap between Emerging Technologies and Legal-Ethical Oversight’ (2011)
7 International Library of Ethics, Law and Technology; Ronald Leenes, et al., ‘Regulatory Challenges of
Robotics: Some Guidelines for Addressing Legal and Ethical Issues, (2017) 9(1) Law Innovation & Tech 40;
Lyria Bennett Moses, ‘How to Think about Law, Regulation and Technology: Problems with ‘Technology’ as a
Regulatory Target’, (2013) 5(1) Law Innovation & Tech 7. Pacing problem refers to the regulatory problems
which arise to exponential technological changes. Often it has been observed that regulatory frameworks lag
behind technological innovation, which results in constant disconnection. Therefore, if the State at the outset, does
not recognise the potential beneficial uses of IBCIs, while there are constant innovations of IBCIs, there will be a
larger disconnection which will be difficult to resolve at a later stage.
8
To answer the main question, we must answer the following sub-questions:
i. What are IBCIs and potential problems arising from their use?
ii. To what extent is Article 8 of the Convention sufficient to regulate IBCIs to
protect the ‘right of human flourishing’?
iii. How should States take positive actions to protect the ‘right to human
flourishing’ under Article 8 of the Convention to address the bioethical issue
of ‘access to treatment’?
As technology companies
59
and governments
60
have been investing heavily in this
technology, the use of IBCIs could become more widespread.
61
Therefore, the objective of the
thesis is to determine the extent of sufficiency of the primary law
62
which guarantees the right
to human flourishing
63
for allowing the State to regulate IBCIs. As highlighted earlier, the
unequal access to this technology can have dire irreparable consequences on the current and
future generations of certain marginalized individuals. This is because, once the technology is
developed and made available to the public, the initial access to the technology will be limited
due to the high cost (due to economic ability, legal uncertainty, insufficient insurance
coverage). Only persons who can afford it will enjoy the compounding benefit i.e., the
increased capabilities that the technology provides, will further advantage the person.
However, the persons without access will have corresponding compounding disadvantages. As
59
Tech@Facebook, ‘Imagining a new interface: Hands-free communication without saying a word(March 30
2020) <https://tech.fb.com/imagining-a-new-interface-hands-free-communication-without-saying-a-word/>
accessed 25 September 2020; Salvia BioElectronics B.V., 'Salvia BioElectronics Raises EUR 26M to Develop
Innovative Neurostimulation Therapy for Chronic Migraine' (2020) Press Release
<https://www.salvianeuro.com/assets/press_release_salvia_september2020.pdf> accessed 23 November 2020;
Salvia BioElectronics B.V., 'Salvia BioElectronics Secures Seed Funding to Develop Minimally Invasive
Neuromodulation Therapy' (2019) Press Release
<https://salvianeuro.com/Press_Release_Salvia_January2019.pdf> accessed 23 November 2020; Steve O'Hear,
‘BIOS Raises $4.5M to further Develop its ‘Neural Interface’ and New Ways to Treat Chronic Medical
Conditions’ TechCrunch (2018) <https://techcrunch.com/2018/12/04/bios-health/> accessed 23 November 2020;
Bios, 'Bios Health Expands its Collaborations In Canada With Ca$800k Initiative On Groundbreaking Neural
Biomarker Research, Press Release (2020) <https://www.bios.health/bios-expands-collaborations-canada>
accessed 23 November 2020; Neuralink, ‘Interfacing with the Brain’ <https://neuralink.com/approach/> accessed
23 November 2020; Elon Musk et al., ‘An Integrated Brain-Machine Interface Platform with Thousands of
Channels> (2019) bioRxiv <https://doi.org/10.1101/703801>
60
Supra 18; Robbin Miranda, et al., ‘DARPA-funded efforts in the development of novel braincomputer
interface technologies' Journal of Neuroscience Methods (2015) 244 5267; Jonathan Wolpaw, et al. ‘Brain-
Computer Interface Technology: A Review of the First International Meeting,’ (2000) 8(2) IEEE Transactions on
Rehabilitation Engineering <https://doi.org/10.1109/tre.2000.847807> accessed 25 July 2021, pg. 165; Editorial,
‘The impact of the NIH BRAIN Initiative’, (2018) 15 839 Nature Methods
<https://www.nature.com/articles/s41592-018-0210-0> accessed 24 July 2021; The Human Brain Project
<https://www.humanbrainproject.eu/en/> accessed 24 July 2021; Clemens Brunner, et. al. 'BNCI Horizon 2020
Towards a Roadmap for Brain/Neural Computer Interaction' in Constantine Stephanidis, Margherita Antona (eds.)
Universal Access in Human-Computer Interaction Design and Development Methods for Universal Access
(Springer 2014), pg. 476
61
Synchron, ‘Synchron receives green light from FDA to begin breakthrough trial of implantable brain computer
interface in US’ 28 July 2021 <https://synchron.com/press-release-july-28-2021> accessed 28 July 2021
62
Article 8 of the European Convention on Human Rights
63
Goodwin v. the United Kingdom App no. 28957/95 (ECtHR, 11 July 2002) para 90; B. v. France App no.
13343/87 (ECtHR, 25 March 1992); European Union Agency for Fundamental Rights and Council of Europe
(2018), pg.141; Bart van der Sloot (2014) pg.235
9
a result, the initial social inequalities are increased.
64
Therefore, the thesis also aims to identify
the possible positive obligations which States should take to protect the right to human
flourishing.
LIMITATIONS, METHODOLOGIES AND METHODS
This thesis is primarily based on doctrinal legal research on primary legislation, relevant case
laws, academic legal literature on privacy law in the European Union (EU), technical literature
on BCIs and bioethics literature relating to access to treatment. An in-depth analysis on the
scope of Article 8 regarding the right to human flourishing will be conducted and examined
through the aid of relevant ECtHR case laws and legal literature.
Considerable legal and ethics literature exists on the issue of human enhancement
using technological tools (including BCIs). However, these discussions primarily take the route
of addressing the issue by analyzing the use of technology for therapy or enhancement,
65
without providing any reconcilable recommendations. Therefore, this thesis intentionally
sidesteps the traditional therapy versus enhancement debate, and instead adopts the welfarist
approach which considers enhancement as any change in the biology or psychology of a person
which increases the chances of leading a good life in relevant set of circumstances.
66
In fact,
this approach considers all diseases as a species of disabilities or disadvantageous statesand
all therapeutic treatments also as enhancements.
67
Consequently, access to IBCIs for increasing
capabilities to uplift individuals from disadvantageous states could be justified. This approach
does not make any distinction between the use of technology for therapy and enhancement.
Consequently, the thesis will limit scope by avoiding making any distinction between the use
of IBCIs for therapy and enhancement. Furthermore, due to the inherent invasive nature of
IBCIs and their greater efficiency over non-invasive BCIs, the thesis will limit the scope by
only dealing with the issues arising from the access to IBCIs and will not deal with non-invasive
BCIs.
The only problem which arises by adopting this welfarist approach is that the notion
of well-being and flourishing is highly normative. Therefore, it is often difficult to provide
conclusive answers. Since, the idea of human flourishing is also normative and must be
analysed on each factual scenario to ensure justice,
68
the ECtHR would have the important role
64
Sarah Chan (2019); European Parliament, Directorate General for Internal Policies, Science and Technology
Options Assessment (2009) pg.10, 61. Unequal access to IBCIs can result in a situation where persons who do
not have access to IBCIs, could be called techno poor impaired and disabled’ and could be discriminated;
European Group on Ethics in Science and New Technologies to the European Commission (2005), pg.33; Bostrom
and Sandberg (2009), pg.329. In additional to the existing socio-economic gap, another gap would be created due
to the unequal access to IBCIs. Persons with access to IBCIs would benefit from the cognitive gap and add another
layer to the existing socio-economic inequality. Unless the issue of unequal access is addressed early on, the gap
would constantly grow over generations.; Tamara Garcia and Ronald Sandler, ‘Enhancing Justice?’ (2008) 2
Nanoethics 279 <https://doi.org/10.1007/s11569-008-0048-5> 30 December 2020
65
Zuzanna Warso, & Sarah Gaskell ‘SIENNA D3.2: Analysis of the legal and human rights requirements for
Human Enhancement Technologies in and outside the EU’ (2019) <https://doi.org/10.5281/zenodo.4066617>
accessed 25 July 2021, pg. 11
66
Julian Savulescu, Anders Sandberg, and Guy Kahane, 'Well-Being and Enhancement', Enhancing Human
Capacities, Wiley and Blackwell (2011) pg. 7
67
Ibid
68
Ibid
10
of determining the width of Article 8 as it has been interpreting the scope of the right to privacy
as a broad right over the years.
69
Therefore, by adopting this normative welfarist approach, the
right of human flourishing would have to be tailored pursuant to a particular situation of an
individual. A tailored interpretation of Article 8 by the ECtHR would prevent adoption of
blanket legislations on the use of IBCIs, thereby resolving the problem of the Law of the
Horse
70
and Flawed Law Syndrome.
71
Since the objective of using IBCIs is to ensure the right to human flourishing, the
thesis will not only explore how IBCIs can protect this right by improving the cognitive
abilities, but also how IBCIs can be used intentionally to cause cognitive diminishment
72
for
certain cases for ensuring the right to human flourishing. Therefore, for the purpose of this
thesis, the use of IBCIs for ensuring the right to human flourishing is not uni-directional (i.e.,
even negative cognitive effects may have positive effects in certain situations).
73
The scope of
the thesis is limited only to review Article 8 regarding the protection of the right to human
flourishing of all current and future generations of individuals, and especially marginalised
individuals in the EU.
STRUCTURE OF THE THESIS
The thesis will answer the main research question by addressing the sub-questions separately
in Chapters II, III and IV of this thesis.
The first sub-question will be addressed by explaining the technical aspects of IBCIs
and the types of IBCIs along with the potential psychological problems as highlighted above,
biological risks and socio-economic problems due to unequal access (i.e. no access to
affordable IBCIs, access to varying qualities of IBCIs, discrimination based restricted access,
69
Costello-Roberts v. the United Kingdom, App no. 13134/87 (ECtHR 25 March 1993), Para 36; Niemietz v.
Germany App A/251-B (ECtHR 16 December 1992), para 29; Schlumpf v. Switzerland, App no. 29002/06 (ECtHR
5 June 2009), Para 100; Dissenting Opinion of Judges Costa, Ress, Türmen, Zupančič and Steiner, Hatton and
Others v. the United Kingdom, App No. 36022/97 (ECtHR 8 July 2003) Para 11. Privacy is a heterogeneous
prerogative’ and is ‘an aspect of the person's general well-being and not necessarily only an end in itself.
70
Frank H. Easterbrook, Cyberspace and the Law of the Horse (University of Chicago Legal Forum, 1996) 207.
Law of The Horse refers to an all-encompassing body of legal knowledge on all things related to that particular
object. Instead of preparing detailed hard laws for all possible scenarios resulting from the use of IBCIs, it would
be better to rely on general laws to regulate the technology. Furthermore, as the welfarist approach requires
tailormade solutions on the various situations, it is better to rely on general protections under the Convention to
ensure distributive justice.
71
Ronald Leenes, ‘Of Horses and Other Animals of Cyberspace’ Technology and Regulation (2019) 1–9; Ronald
Leenes ‘Regulating New Technologies in Times of Change’ in L. Reins (ed), Regulating New Technologies in
Uncertain Times (2019) TMC Asser Press 5. Flawed Law Syndrome refers to the notion, that laws are outdated,
disconnected and flawed due to changing technology. Often such a conclusion is reached without determining
‘what the issues are, for whom, why and what is wrong or missing in the existing regulation’. Therefore, by relying
on rich primary laws such as the Convention, the ECtHR could resolve the essential issues without detailed hard
codes.
72
Brian Earp, Anders Sandberg, Guy Kahane and Julian Savulescu, ‘When is Diminishment a Form of
Enhancement? Rethinking the Enhancement Debate in Biomedical Ethics’, (2014) Hypothesis and Theory Article
Front. Syst. Neurosci. <https://doi.org/10.3389/fnsys.2014.00012> accessed 19 November 2020
73
Ibid. IBCIs could supress distressing memories to address post-traumatic stress of soldiers, rape victims or
anyone who would have a better quality of life without traumatic memories. Furthermore, persons with high
intelligence who suffer from psychological disorders could choose to diminish their abilities for a better quality
of life.
11
prevailing law based restricted access, denial of IBCIs to convicted persons, restricted access
due to difference in economic state and reduced State support). This overview on the
technology and the issues arising thereof, will aid the reader to understand the second and third
sub-questions with ease.
The second sub-question will be addressed by reviewing the scope and elements of
Article 8 with the aid of relevant case laws; exploring the meaning and bi-directional scope of
the right to human flourishing (including the concepts of autonomy and identity) especially in
relation to the bioethical issue relating to the access to treatment; establishing a connection
between Article 8 and the right to human flourishing with the access to treatment; and
determining the sufficiency of Article 8 for protecting the right to human flourishing in regard
to use of IBCIs. In addition, this chapter will address the need for equitable access to IBCIs,
by creating a correlation with traditional education (as it is one of the traditional modes of
cognitive enhancement) and their impact on the socio-economic condition of a person. For
ensuing equitable access to education, States have funded public libraries and schools to enable
a form of distributive cognitive enhancement. Similarly, the State could provide equitable
access to IBCIs to allow for this new form of cognitive enhancement.
74
Therefore, through an
interdisciplinary legal, bioethical, and technical approach, this Chapter will aid the reader to
understand the nuances on how IBCIs could be used to achieve human flourishing by ensuring
equitable access to treatment or this technology.
The last sub-question will draw reference from the second-sub question to reveal the
role of the State for taking positive obligations to ensure that this right to human flourishing is
effectively guaranteed and protected. This chapter will conclude by highlighting the possible
positive obligations which may be adopted by States to ensure equitable access to IBCIs to
ensure the right to human flourishing. This question is being addressed at the end of the thesis
as the second sub-question provides justification as to why the State has a positive obligation
for ensuring equitable access to IBCIs.
CHAPTER 2: UNDERSTANDING INVASIVE BRAIN COMPUTER INTERFACES
INTRODUCTION
A BCI is an alternative communication system through which individuals can exchange
commands or information from the brain through computer systems, instead of using the usual
output neural pathways and muscles.
75
In order to further explain this technology, BCIs can be primarily classified under two
categories, depending on the: (a) Direction of the information flow Externalizing BCIs which
can transmit information from the brain to external computer systems; or Internalizing BCIs
which receive external information from computer systems and transmits it to the brain; or
74
Bostrom and Sandberg (2009), pg. 329
75
Jonathan Wolpaw, et al. ‘Brain-Computer Interface Technology: A Review of the First International Meeting,’
(2000) 8(2) IEEE Transactions on Rehabilitation Engineering, <https://doi.org/10.1109/tre.2000.847807>
accessed 25 July 2021 165, 170; Jonathan Wolpaw, et al., (2002) pg. 769; European Group on Ethics in Science
and New Technologies to the European Commission (2005), pg. 11; Thorsten Zander and Laurens Krol (2017)
pg. 210
12
Input-Output BCIs which can both transmit and receive information from and to the brain;
76
(b) Degree of invasiveness of the BCI Non-Invasive BCIs do not require any surgery and are
placed externally on the surface of the head
77
while Invasive BCIs (IBCIs) require surgery and
post-operative care for implanting electrodes or probes in or on the brain.
In addition to these aforesaid classifications, BCIs can be sub-classified based on the
mode of information acquisition: (a) Active BCIs require a person to perform an intentional
mental action which is translated using an algorithm and transferred to an external device. For
instance, a person using such a BCI can be asked to imagine gripping a glass and a prosthetic
robotic arm can implement that information in reality;
78
(b) Reactive BCIs analyse the electrical
activity of the brain resulting from external stimulus and subsequently engage in an operation
based on the activity. For instance, a person wearing such a BCI can be shown certain icons on
a screen and based on the resulting electrical activity, the BCI can create a painting;
79
and (c)
Passive BCIs do not require any intentional action by the user and measures the cognitive states
of the person or mental workload to arrive at a decision.
80
However, for the purposes of
addressing the research questions, it is not required to discuss these specific sub-applications
of BCIs. Instead, this thesis will focus specifically on IBCIs, since they are significantly more
invasive, provide higher quality information exchange than non-invasive BCIs.
81
TYPES AND USES OF IBCIS
The brain is a complex organ which comprises of billions of neurons
82
which allow individuals
to think, form memories and perform actions. However, due to traumatic brain injury, disease,
infection, stroke resulting from interruption of blood supply to the brain, neurodegeneration or
certain conditions, neurons can be damaged which may cause disorders, affect behaviour,
memories, and consciousness of an individual. However, due to the limited ability of the brain
to heal itself and limited ability of rehabilitation to restore functions,
83
IBCIs can be used to
restore some functions of the brain and improve the quality of life. Depending on the
76
European Group on Ethics in Science and New Technologies to the European Commission (2005), pg.11
77
Eric Sellers, et. al., Non-invasive Brain-Computer Interface Research at the Wadsworth Center’ in 'Invasive
BCI Approaches' in Guido Dornhege, Jose del R. Millan, Thilo Hinterberger, Dennis McFarland and Klaus‑Robert
Muller (eds), Toward Brain‑Computer Interfacing (MIT Press 2007)
78
Ahmed Mohamed Elnady, et al. (2017)
79
Jane Munssinger, et al. ‘Brain Painting: First Evaluation of a New Brain-Computer Interface Application with
Als-Patients and Healthy Volunteers,’ (2010) 4 Frontiers in Neuroscience
<https://doi.org/10.3389/fnins.2010.00182> accessed 25 July 2021, pg.2
80
Cristina De Negueruela, et al. ‘Brain-Computer Interfaces for Space Applications’ 15(5) 2011 Personal and
Ubiquitous Computing, pg. 530; Thorsten Zander and Laurens Krol (2017) pg. 210; Peter Gerjets, et al. ‘Cognitive
state monitoring and the design of adaptive instruction in digital environments: lessons learned from cognitive
workload assessment using a passive brain-computer interface approach’ Frontiers in Neuroscience (2014) 8 pg.
2; Andrea Kübler and Klaus-Robert Müller (2007) pg. 3
81
Lawrence, Shapiro and Fins (2019), pg.179; Stephan Waldert (2016); Guido Dornhege et al; (2007) 125;
Birbaumer and Rana (2019); Andrea Kübler and Klaus-Robert Müller (2007) pg. 20
82
Neurons are specialised cells and are the basic building blocks of the brain which can pass information to and
from the brain using electrical signals and neurotransmitters.
83
Andrea Caria, et al. ‘Chronic Stroke Recovery After Combined BCI Training and Physiotherapy: A Case
Report.’ (2011) 48(4) Psychophysiology <https://doi.org/10.1111/j.1469-8986.2010.01117.x> accessed 25 July
2021; Ander Ramos-Murguialday, et al. Proprioceptive Feedback and Brain Computer Interface (BCI) Based
Neuroprostheses (2012) 7(10) PLOS ONE <https://doi.org/10.1371/journal.pone.0047048> accessed 25 July
2021; Roberto Portillo-Lara, et al., (2021) pg. 10
13
neurological condition, primarily two sub-types of IBCIs may be used, based on the direction
of information flow.
84
Externalizing IBCIs (e-IBCIs) use electrodes directly implanted in and/or on the
brain, to record the electrical signals (either generated actively or passively) from the neurons,
which are then transferred to a computer system and interpreted using a translation algorithm
(which may include neural networks and machine learning algorithms).
85
Based on the analysis
of this real time information, a computer system can convey the analysed information to an
output device (i.e. prosthetic, wheelchair, medical support or communication systems, or a
cursor on a screen).
86
Consequently, this e-IBCI can allow individuals to bypass the impaired
neural pathway or muscles and regain a degree of agency. Through conscious practice, the user
of these e-IBCIs can execute a desired action on the output device. Furthermore, e-IBCIs can
be used for restoring movement function to persons suffering from severe movement
disabilities,
87
locked-in syndrome,
88
stroke,
89
spinal cord injury,
90
cerebral palsy.
91
A pictorial
representation e-IBCIs has been provided below for ease of understanding.
84
Holtzheimer and Mayberg (2011); Nuffield Council on Bioethics (2013); Mark Homer et al. (2013), pg.10, 12
85
Jonathan Wolpaw (2000) 8(2) 169; Joseph Mak and Jonathan Wolpaw, 'Clinical Applications of Brain-
Computer Interfaces: Current State and Future Prospects' (2009) 2 IEEE Rev Biomed Eng.
<https://dx.doi.org/10.1109%2FRBME.2009.2035356> accessed 3 January 2021; Andrea bler and Klaus-
Robert Müller (2007) pg. 4; Benjamin Blankertz, et al., ‘The Non-Invasive Berlin Brain-Computer Interface: Fast
Acquisition of Effective Performance in Untrained Subjects’ NeuroImage (2007) 37(2), 53950
<https://doi.org/10.1016/j.neuroimage.2007.01.05> accessed 25 July 2021 pg. 541, 542, 549; Klaus-Robert
Müller, et al., Machine learning techniques for brain-computer interfaces, Biomed Tech (2004) 49(1), pg. 22
86
Nuffield Council on Bioethics (2013) pg.10; Mark Homer et al. (2013), pg.10
87
Mak and Wolpaw (2009)
88
Andrea Kübler, et al., ‘Brain-computer communication: unlocking the locked in’ (2001) 127(3) Psychological
Bulletin <https://doi.org/10.1037/0033-2909.127.3.358> accessed on 7 January 2021;
89
Jonathan Wolpaw (2000) 8(2) 172; Jonathan Wolpaw, et al. (2002) pg. 786; Ahmed Mohamed Elnady, et al.,
(2017) 210
90
Jonathan Wolpaw (2000) 8(2) 167;
91
Jonathan Wolpaw (2000) 8(2) 172; Elisabeth Hildt, 'Brain-computer interaction and medical access to the brain:
individual, social and ethical implications' (2010) 4(3) Studies in Ethics, Law and Technology
<https://doi.org/10.2202/1941-6008.1143> accessed on 3 January 2021
14
Source: Nuffield Council on Bioethics
92
Internalizing IBCIs (i-IBCIs) use electrodes or probes directly implanted deep in
specific areas in the brain to stimulate and alter the functioning of the neurons by using external
electrical currents or laser probes, which is determined by a computer system. This is called
deep brain stimulation and is used for the treatment of movement disorders, Parkinson’s
disease,
93
epilepsy,
94
Alzheimer’s disease, neuropathic pain, and psychiatric disorders.
95
This
technology induces external electrical stimulation on the remaining and/or undamaged neurons
to increase their effectiveness to restore certain functions and improve the quality of life.
96
A
pictorial representation of i-IBCIs has been provided below for ease of understanding.
92
Nuffield Council on Bioethics (2013)
93
Gasson, Kosta and Bowman (eds) (Springer 2012); Mark Lyons (2011); European Parliament, Directorate
General for Internal Policies, Science and Technology Options Assessment (2009), pg. 10, 87; Department of
Neurology, UNC School of Medicine, (2013)
94
UCLA Health ‘FDA approves deep brain stimulation for treatment of severe epilepsy’ (2019)
<https://www.uclahealth.org/vitalsigns/fda-approves-deep-brain-stimulation-for-treatment-of-severe-epilepsy>
accessed 26 September 2020; Vicenta Salanova, et al., (2015)
95
Nuffield Council on Bioethics (2013) pg.10; Mark Homer et al. (2013), pg.10; Mark Lyons (2011)
96
Walter Glannon, ‘Stimulating brains, altering minds’ (2009) Journal of Medical Ethics 35(5)
<http://dx.doi.org/10.1136/jme.2008.027789> accessed on 3 January 2021
15
Source: Nuffield Council on Bioethics
97
RISKS AND POTENTIAL PROBLEMS
It is clear from the aforesaid discussion that IBCIs can have beneficial medical uses and could
also have certain futuristic enhancement uses as discussed in section 1.1 which can improve
the quality of life of a person by enabling individuals to fulfil their desire for personal
development and to gain opportunities which otherwise would not have been possible.
Consequently, through the adoption of this technology, there could be a wider degree of human
flourishing in society.
Nevertheless, there are concomitant risks associated with the use of IBCIs. For the
purpose of this thesis, the possible associated risks to human flourishing as a result of the use
of IBCIs has been classified on the basis of quantum of persons affected and directness of the
risk as (a) Direct Micro Risks (i.e. affecting specific individuals) due to potential
psychological problems and biological risks of IBCIs; and (b) Indirect Macro Risks (i.e.
affecting larger groups of people) due to existing socio-economic issues resulting in unequal
access to the technology.
2.3.1. DIRECT MICRO RISKS
The pre-requisite for using IBCIs is having a better and deeper understanding of the human
brain. However, the brain is one of the most complex systems known to human beings and has
97
Nuffield Council on Bioethics (2013)
16
not yet been fully understood. Given that much is unknown about the brain, it is of paramount
importance to understand how IBCIs could positively or negatively affect individuals.
Researchers have observed that repeated and continuous use of external electrical stimulation
through e-IBCIs can have long term adverse effects on the functionality of the remaining
undamaged neurons.
98
Furthermore, IBCI users may suffer from side effects, such as memory
impairment, dementia, aggression, apathy, depression, hypersexuality, familial problems and
problems at work.
99
Although, the procedure for implanting the IBCI is highly specialised, there can often
be a lack of control over the specific area of the brain in which the IBCI is implanted, which
can result in unintended adverse effects on other parts of the brain.
100
Moreover, the entire
surgery to implant IBCIs in the brain is serious and may be irreversible. As a result, there may
be serious health risks such as infection, complications, hemorrhage, malfunction, or breakage
of the IBCI resulting in repeated minor surgeries for replacing the IBCI.
101
Presence of such
risks and occurrence of the aforesaid side-effects do not alleviate the condition of a person and
may not improve the quality of life. Since the objective of using IBCIs is to ensure flourishing,
the individual must provide a free and informed consent prior to the implantation, after being
informed of all the possible near term and long-term risks.
2.3.2. INDIRECT MACRO RISKS
The proliferation of IBCIs in different countries will depend on the existence of certain positive
elements (i.e. acceptability as per societal norms, economic ability and healthcare support to
afford IBCIs, existence of specialised healthcare systems, legal permissibility of the use of
IBCIs, effective intellectual property law protections, efficient competition laws to prevent
market abuse) and also the absence of negative elements i.e. any form of discrimination due to
race, religion, caste, colour, nationality, language, political opinion, sex, gender or prior
convictions. For instance, due to certain societal pressures and legal restrictions, individuals in
certain jurisdictions are restricted from undergoing medical procedures, such as abortions,
although it may be beneficial for the person.
Since the IBCI implantation process is highly specialised, it will result in high medical
expenses. Even if IBCIs become affordable due to economies of scale due to widespread use,
the cost of the surgery and post-operative care could still be substantial
102
and will act as a
barrier for people. Furthermore, due to the existence of disparate insurance and health
coverages,
103
there would be unequal access to the technology. Certain States may adopt a
precautionary approach and not permit the experimental use
104
of IBCIs. As a result, only some
98
Nuffield Council on Bioethics (2013) pg.10; Mark Homer et al. (2013), pg.15
99
Jens Clausen, ‘Ethical Brain Stimulation – Neuroethics of Deep Brain Stimulation in Research and Clinical
Practice (2010) European Journal of Neuroscience 32(7) <https://doi.org/10.1111/j.1460-9568.2010.07421.x>
accessed 3 January 2021
100
Nuffield Council on Bioethics (2013) pg.10; Mark Homer et al. (2013), pg.15
101
Jens Clausen (2010)
102
Nuffield Council on Bioethics (2013) pg. 10; Mark Homer et al. (2013), pg. 66
103
Sentges v. The Netherlands App No. 27677/02 (ECtHR 8 July 2003)
104
Hristozov v. Bulgaria App No. 47039/11 and 358/12 (ECtHR 13 November 2012)
17
individuals with financial ability can engage in medical tourism
105
and can travel to another
jurisdiction for undergoing the surgical procedure.
106
Moreover, individuals with prior
convictions may not be able to enter another jurisdiction for such procedures, which creates an
additional barrier. Such a precautionary approach could also restrict innovation in these
countries, as private players would not be incentivised to invest in research and development
of IBCIs. Consequently, a degree of permanence of anti-IBCI use could creep in that State and
adversely affect the people at large. In addition, insurance companies would not provide
relevant medical coverage for implantation of IBCIs which would be further detrimental for
individuals.
On the contrary, IBCI friendly jurisdictions would benefit from greater investment in
research and development which would not only add to the overall economic growth due to a
larger functioning society and medical tourism,
107
but could possibly create dominant market
players. Unfair competition over the know-how and production capacity of IBCIs could further
result in a perpetual and growing cognitive gap and increase the chasm between the quality of
life between individuals of IBCI friendly and IBCI non-friendly jurisdictions.
It has also been observed that certain minority groups have often been the subject of
discrimination and have been denied affordable loans
108
and healthcare coverage.
109
Moreover,
due to prevalent discrimination, such minority groups often are not financially stable and would
not be able to afford expensive IBCI surgery and post-operative care. Since IBCIs have the
potential to increase cognitive capabilities, any form of denial or barrier of entry due to societal
discrimination would only widen the socio-economic gap
110
as the discriminated individuals
would not be able to improve their cognitive abilities or regain agency and fail to achieve the
desired better quality of life. Consequently, the inability to meet the cognitive improvement
through the use of IBCIs would not permit them to enjoy the opportunities as they otherwise
would have been able to reach, and the gap would prevail and grow over generations due to the
compounding disadvantage.
111
2.3.3. NAVIGATING THROUGH THE RISKS
As we can see that IBCIs are innovative and disruptive technologies which have the capability
to change humanity, it is important for States to consider these aforesaid risk factors and
prepare relevant regulatory policies to ensure that the positive elements are instilled and the
105
Glenn Cohen, ‘Circumvention Tourism’ (2012) Cornell Law Review 97(6)
106
Caitlin Gerdts, et al., ‘Experiences of women who travel to England for abortions: an exploratory pilot study’
(2016) The European Journal of Contraception & Reproductive Health Care, 21(5)
<https://doi.org/10.1080/13625187.2016.1217325> accessed on 15 January 2021
107
Supra 105
108
Justin Steil, et al., The Social Structure of Mortgage Discrimination’ (2018) Housing Studies 33(5)
<https://doi.org/10.1080/02673037.2017.1390076> accessed on 15 January 2021
109
European Union Agency for Fundamental Rights, 'Inequalities and multiple discrimination in access to and
quality of healthcare' (2013) <https://fra.europa.eu/sites/default/files/inequalities-discrimination-
healthcare_en.pdf> accessed 24 January 2021; Diana‐Lyn Baptiste, et al., 'Racial discrimination in health care:
An “us” problem' (2020) Journal of Clinical Nursing Wiley 29 <https://doi.org/10.1111/jocn.15449> accessed on
24 January 2021
110
Bostrom and Sandberg (2009), pg. 329
111
Garcia and Sandler (2008)
18
negative elements are removed or at least mitigated, to ensure that a two class society’
112
is
not created. However, as IBCIs have diverse usage, it is difficult to specify hard rules and
therefore the regulatory framework should be derived from general principles from national
legislation and international instruments.
113
In regard to the European legal framework, we
should refer to Article 8 as the ground norm for the regulation of IBCIs for protecting human
flourishing against the aforesaid risks associated with the use of IBCIs. The next chapter will
explore Article 8 and the right to human flourishing in detail.
CHAPTER 3: THE RIGHT TO HUMAN FLOURISHING & INVASIVE BRAIN COMPUTER
INTERFACES
SCOPE & APPLICATION OF ARTICLE 8 OF THE CONVENTION
This right to privacy is one of the oldest rights
114
which limits the power of the State by
separating the private and public domain. Article 8 sets out the original rationale of providing
negative freedoms to prevent vertical interference from the State, which was an immediate
reaction against the atrocities committed prior and during the second world war. However,
given the living instrument doctrine
115
the ECtHR has often interpreted the Article ‘in the light
of the present-day conditions
116
and has widened the scope of this Article when certain rights
have not been explicitly provided.
117
Although from a plain reading it seems that Article 8 only guarantees individuals a
right to privacy in regard to private and family life, home and correspondence, nevertheless,
from various decisions of the ECtHR, it is clear that Article 8 is broad and not exhaustive
118
as
it includes positive freedoms such as: the right to physical and psychological,
119
moral,
120
social
integrity, identity,
121
autonomy or self-determination,
122
establish and develop relationships
112
European Group on Ethics in Science and New Technologies to the European Commission (2005), pg. 33
113
Ibid pg. 35
114
Article 12 of The Universal Declaration of Human Rights
115
Tyrer v. the United Kingdom, App No. 5856/72 (ECtHR 25 April 1978); Dissenting Opinion of Judges Costa,
Ress, Türmen, Zupančič and Steiner, Hatton and Others v. the United Kingdom, App No. 36022/97 (ECtHR 8
July 2003) Para 2
116
Ibid
117
European Court of Human Rights, ‘Guide on Article 8 of the European Convention of Human Rights: Right
to respect for private and family life, home and correspondence’ (2020) pg. 7
<https://www.echr.coe.int/documents/guide_art_8_eng.pdf > accessed 10 February 2021
118
Niemietz v. Germany App A/251-B (ECtHR 16 December 1992), Para 29; Pretty v. the United Kingdom, App
no. 2346/02 (ECtHR 29 April 2002), Para 61; Costello-Roberts v. the United Kingdom, App no. 13134/87 (ECtHR
25 March 1993), Para 36; European Union Agency for Fundamental Rights, Handbook on European data
Protection Law (2018), pg.37; Lacatus v. Switzerland, App No. 14065/15 (ECtHR 19 January 2021), Para 53;
Glor v. Switzerland, App no. 13444/04 (ECtHR 6 November 2009), Para 52; Hadri-Vionnet v. Switzerland, App
no. 55525/00, (ECtHR 14 February 2008), Para 51; Schlumpf v. Switzerland, App no. 29002/06 (ECtHR 5 June
2009), Para 100
119
Mikulić v. Croatia, App no. 53176/99 (ECtHR 7 February 2002), Para 53; Otgon v. Moldova, App no. 22743/07,
(ECtHR 25 October 2016), Para 15; X and Y v. Romania, App nos. 2145/16 and 20607/16 (ECtHR 19 January
2021), Para 146
120
X and Y v. Romania, App nos. 2145/16 and 20607/16 (ECtHR 19 January 2021), Para 146
121
S. and Marper v. the United Kingdom, App No. 30562/04 and 30566/04 (ECtHR 4 December 2008) Para 66;
Hämäläinen v. Finland, App no. 37359/09 (ECtHR 16 July 2014), Para 62, 63, 64; S.V. v. Italy, App no. 55216/08
(ECtHR 11 October 2018) Para 62; A.P., Garçon and Nicot V. France, App nos. 79885/12, 52471/13 and 52596/13
(ECtHR 6 April 2017), Para 123
122
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 61
19
with other human beings,
123
protection of private space (including in certain public spaces).
124
Not only has the Article withstood the test of time and fulfilled its original intended role in
protecting individuals from arbitrary vertical State interference,
125
but it has evolved with the
changing times.
Through the Court’s dynamic interpretation,
126
the Article has been able to transverse
into the realm where it not only guarantees negative freedoms and the classical notions of
privacy, but also includes the aforesaid positive freedoms,
127
including the right to personal
development
128
and the right to develop personal or professional relationships with other
persons.
129
In fact, the ECtHR has held that the right under Article 8 should include the
greatest, opportunity of developing relationships with the outside world’.
130
Consequently,
States now need to take affirmative action to protect the right to privacy, also from horizontal
interferences
131
from non-State actors. The ability to adapt with the changing environment and
the proven historical success of the enforcement, makes it a perfect ground norm to base our
discussion in regard to the regulation of possibly one of the most disruptive technologies. In
this regard, the restorative capabilities of IBCIs can enable persons with disabilities to regain
agency, ensure the ability to maintain and develop relationships with other individuals.
132
Furthermore, persons without disabilities can use IBCIs to improve their cognitive capabilities
to access opportunities which would have otherwise been restricted due to biological or socio-
economic reasons. Therefore, equitable access to this technology can enable both persons with
and without disabilities to promote their personal development to ensure flourishing, which has
been considered as a fundamental right under Article 8.
As a general rule, the ECtHR will admit cases pertaining to the infringement of Article
8, when there is a direct harm caused to a person due to interference in their private life, family
life, home and correspondence (i.e. negative freedom) or if the State failed to perform its
positive obligation to protect the right to privacy (i.e. positive freedom).
133
Nevertheless, in
regard to the freedoms protected under the Article, States have a wide margin of appreciation,
123
Lacatus v. Switzerland, App No. 14065/15 (ECtHR 19 January 2021), Para 55; Evans v. the United Kingdom,
App no. 6339/05 (ECtHR 10 April 2007), Para 71; A-M.V. v. Finland, App No. 53251/13 (ECtHR 23 March 2017),
Para 76; I. v. The United Kingdom, App No. no. 25680/94 (ECtHR 11 July 2002), Para 70
124
Peck v. the United Kingdom, App no. 44647/98 (ECtHR 28 January 2003), Para 57
125
Kroon v. The Netherlands, App no. 18535/91 (ECtHR 27 October 1994)
126
Paul de Hert and Serge Gutwirth, ‘Data Protection in the Case Law of Strasbourg and Luxemburg:
Constitutionalisation in Action’ in Serge Gutwirth, Yves Poullet, Paul De Hert, Cecile de Terwangne, Sjaak
Nouwt (eds.), Reinventing Data Protection? (Springer 2009), pg. 16
127
Bărbulescu v. Romania, App no. 61496/08 (ECtHR 5 September 2017)
128
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 61; Bensaid v. the United
Kingdom, App no. 44599/98 (ECtHR 6 May 2001); Brüggeman and Scheuten v. Germany, App no. 6959/75
(Report of the Commission 12 July 1977), Para 55; Smirnova v. Russia, App nos. 46133/99 and 48183/99 (ECtHR
24 October 2003), Para 95; X v. Iceland , App No. 6825/74 (Commission Decision, 18 May 1976) pg. 87; Evans
v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 71; A-M.V. v. Finland, App No. 53251/13
(ECtHR 23 March 2017), Para 76; Schlumpf v. Switzerland, App no. 29002/06 (ECtHR 5 June 2009), Para 100;
Nadezhda Purtova, 'Property rights in personal data: A European perspective' (2011) Tilburg University BOX
Press B, pg. 190
129
Bart van der Sloot (2014), pg. 236
130
Niemietz v. Germany, App no. 13710/88 (ECtHR 16 December 1992) para 29
131
Bărbulescu v. Romania, App no. 61496/08 (ECtHR 5 September 2017)
132
Benjamin Blankertz, et al., (2010) pg.12
133
Article 33 and 34 of the European Convention of Human Rights
20
which consequently leads to the lack of uniformity in application and consensus, especially in
regard to the sensitive and moral issues.
134
However, the shift from Atoms to Bits
135
has caused difficulty in giving effect to
only the strict victim harm-based approach. In certain cases, when the use of technologies has
affected the right to privacy without definite infringement on the individual rights, the ECtHR
has reduced the threshold for invoking Article 8 and made exceptions
136
to the aforesaid general
rule and allowed in abstracto and a priori claims by persons who have contended that their
right to private life was affected, without the requirement to show that they had suffered any
direct or actual harm. Instead, the ECtHR considered complaints where it believed that there
was a reasonable likelihood'
137
the claimant was harmed or would be harmed in future;
138
or
there would be a chilling effect on the enjoyment of their right due to certain policies; and the
mere existence of law or policy
139
could lead to an infringement of the right under Article 8.
140
There is reasonable likelihood that due to the absence of specific State policies for
ensuring equitable access to IBCIs, individuals and subsequent generations may be harmed in
the future due to the creation of irreparable generational inequalities.
141
Moreover, unregulated
access to IBCIs can also lead to the magnification of the Direct Micro and Indirect Macro
Risks. Since the ECtHR has held that positive obligations of States, can include adoption of
specific frameworks for the protection of the rights under Article 8
142
and expanded the scope
of the right to privacy, especially on matters pertaining to the infringement of the rights under
Article 8 due to technological innovations,
143
it is possible that with the proliferation of
IBCIs,
144
the ECtHR may consider the admission of in abstracto and a priori claims for
ensuring equitable access to IBCIs.
RIGHT TO HUMAN FLOURISHING
There are two perspectives of human flourishing which we need to review to better understand
the interplay with the use of IBCIs (a) concept of human flourishing as per virtue ethics; and
134
European Court of Human Rights, ‘Guide on Article 8 of the European Convention of Human Rights: Right
to respect for private and family life, home and correspondence’ (2020) 7
<https://www.echr.coe.int/documents/guide_art_8_eng.pdf> accessed 10 February 2021; Sentges v. The
Netherlands App No. 27677/02 (ECtHR 8 July 2003); Zehnalová and Zehnal v. the Czech Republic, App No.
38621/97 (ECtHR 14 May 2002)
135
Supra 31
136
Zhakarov v. Russia, App No. 47143/06 (ECtHR 4 December 2015); Szabó & Vissy v. Hungary, App No.
37138/14 (ECtHR 12 January 2016); Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22 October
1981; Michaud v. France, App No. 12323/33 (ECtHR 6 December 2012)
137
Klass v. Germany, App No. 5029/71, (ECtHR 6 September 1978) para 31
138
Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22 October 1981), para 41; Michaud v. France,
App No. 12323/33 (ECtHR 6 December 2012) para 51, 52.
139
Weber and Saravia v. Germany, App No. 54934/00 (ECtHR 29 June 2006)
140
Bart van der Sloot, ‘Privacy as virtue: Moving beyond the individual in the age of big data’ UvA DARE (2017)
83
141
Supra 47
142
Infra 344
143
Supra 136
144
Infra 304
21
(b) the interpretation of Article 8 by the ECtHR and the entrenchment of the right to human
flourishing.
Article 8 was established on the patient-based theory which gave effect to the classical
paradigm of right and duty,
145
where a right of an individual always corresponds with a duty
on another person. However, scholars have observed that with the shift from Atoms to Bits,
146
it has become onerous on individuals to prove that there was a failure to fulfil a duty which
consequently harmed their rights under Article 8.
147
Instead, the virtue ethics approach moves
beyond this right-duty paradigm and adopts an agent-based theory which determines if an agent
(i.e. the State) acted virtuously. Since there is reasonable likelihood that unequal access to
IBCIs can lead to future harms and abstract rights of individuals may be infringed, this virtue
ethics approach provides a viable avenue to further broaden the scope of Article 8 to allow for
the inclusion of more abstract rights. Therefore, the thesis advocates the adoption of the virtue
ethics approach which can impose broader responsibilities on the State to act virtuously for
protecting the abstract right to access IBCIs and ensure flourishing.
3.2.1. VIRTUE ETHICS & HUMAN FLOURISHING
Human flourishing is a facet of virtue ethics which aims to ensure the optimal achievable
development of a person and relies on both the negative and positive freedoms guaranteed to
individuals.
148
The idea of human flourishing or well-being was first expressed by Aristotle as
eudaimonia.
149
According to the philosopher, all human beings are special due to the capacity
to reason and to act on the reason. By using reason to act virtuously, a person could attain
eudaimonia i.e. human flourishing or well-being.
150
Although, this concept of flourishing is
primarily agent-based (i.e. it is centered on the abstract virtues of a person), Aristotle noted that
there can be external factors such as poverty or disease which can restrict a virtuous person
from attaining eudaimonia.
151
Thus, the State has a positive obligation to not just allow the
people to just live, but to enable people to live well by fulfilling its role in policy formulation
to address these external factors (i.e. the Direct Micro Risks and Indirect Macro Risks) which
can restrict a person from fulfilling their objective of eudaimonia or human flourishing.
152
In this regard, we can refer to the concept of eunomics introduced by Fuller,
153
according to which a State policy can be evaluated to find a balance between the means, ends,
negative and positive freedoms.
154
It implies that, the State is also required to be virtuous as it
is a purposive enterprise for promoting justice and human flourishing, by striving towards the
145
PJ Fitzgerald, Salmond on Jurisprudence, Universal Law Publishing, Pg. 224; Supra 140, pg. 240
146
Supra 31
147
Supra 140, pg. 240
148
Bart van der Sloot (2014), pg. 239
149
Aristotle, ‘Nicomachean Ethics’ Hackett Publishing Company (2019) pg. 17
150
Stanford Encyclopedia of Philosophy, Aristotle’s Ethics <https://plato.stanford.edu/entries/aristotle-ethics/>
25 July 2021; Bart van der Sloot (2017) pg. 109
151
Ibid; Andy Dong, ‘The Policy of Design: A Capabilities Approach’ Massachusetts Institute of Technology
Design Issues (2008) 24(4) pg. 83
152
Bart van der Sloot (2017) pg. 115
153
Lon Fuller, ‘American Legal Philosophy at Mid-Century: A Review of Edwin W. Patterson’s Jurisprudence,
Men and Ideas of the Law’, Journal of Legal Education (19531954) 6 457
154
Bart van der Sloot (2017), pg. 124
22
most perfect legal order in which interests of all persons are protected.
155
Hence, the virtue
ethics approach can allow the ECtHR to expand Article 8 beyond the current form of the
patient-based approach to the agent-based approach and allow for more inclusivity through the
recognition of more virtue based abstract positive obligations for ensuring human flourishing.
Although it could be contended that the notion of virtue is abstract and practical application
would not be possible, and that the ECtHR is not explicitly adopting this virtue ethics approach,
we can already find trace elements of this inclusive approach in jurisprudence. The shift from
only enforcing negative obligations to the inclusion of positive obligations on States beyond
the original scope of Article 8;
156
permitting in abstracto claims against general policies of the
State and technological abstractions, where no clear right has been violated resulting in a harm;
allowing the reasonable likelihood of harm or future harm claims to be heard;
157
ignoring
conservative norms of a State and adopting wider societal norms prevalent in Europe to
promote personal development
158
are clear examples how the ECtHR can use Article 8 as a
ground norm and require the State to act virtuously. The inclusion of such claims, signal the
ECtHR willingness to shift from the restrictive right-duty paradigm and allow the use of virtue
ethics to require the State to fulfil its purpose and allow individuals to attain eudaimonia.
Therefore, virtue ethics provides a way to avoid the rigours of strict protection of definite
individual rights and adds another dimension of malleability to the Article 8 by combining
traditional notions of privacy along with the modern expansive interpretation of the subjective
right to privacy.
Even still, some may argue that this abstract notion of virtue is not definite enough to
form a legal basis and may lead to undesirable results.
159
However, I think the undefinable
nature of virtues is an advantage as it gives enough leeway to address the plurality of norms
and socio-economic conditions in each Member State. In fact, the use of hard laws to ensure
human flourishing in an environment of technological abstraction is counterintuitive due to the
pacing problem.
160
Use of strict codes especially in diverse multi-cultural polities, will only
result in multiplicity of fragmented and short-lived laws. Instead, it would be more feasible if
each Member State is required to use their margin of appreciation to act in a virtuous manner
as per socio-economic conditions and normative beliefs of their own jurisdiction.
161
Subsequently, the ECtHR through the dynamic interpretation
162
of Article 8 can help determine
if the State fulfilled its role and acted in a virtuous manner to ensure human flourishing in the
particular case or not.
As a corollary to this argument for using virtue ethics since unequal access to IBCIs
could result in the creation of a two-class society, a virtuous State would need to be proactive
and conscious of the policies regarding the use and access to IBCIs of other States. Therefore,
155
Ibid, pg. 128
156
Infra 260
157
Supra 136, 137, 139
158
Infra 183, 269
159
Bart van der Sloot (2017) pg. 117, 130 143. This section of the book sets out the arguments against adopting
a virtue ethical approach to privacy by legal scholars, including Immanuel Kant, Wesley Newcomb Hohfeld and
H.L.A. Hart.
160
Supra 58
161
Bart van der Sloot (2017) pg. 146
162
de Hert and Gutwirth (2009), pg. 16
23
a positive act of one virtuous State to promote eudaimonia through the use of IBCIs could
begin a snowball effect by implicitly requiring the other virtuous States to also adopt similar
polices, tailored to its jurisdiction. Although it is possible that due to the first mover advantage
the first State may create a cognitive gap, however, it is likely that the network effects resulting
from the subsequent IBCI proliferation policies by other Member States will allow the EU to
reach a higher aggregated cognitive growth and set off the preliminary cognitive gap. To the
contrary, any refusal to adopt a similar policy, would result in the creation of generational
inequalities and discrimination. Consequently, it could be held that the State failed to perform
it’s positive obligations and infringed on the right to human flourishing.
To clarify, the concept of eudaimonia should not be confused with the hedonistic notion
of pleasure or happiness, but the object of overall well-being or flourishing of a person. The
idea of flourishing is bi-directional, which requires a person to have a virtuous life, irrespective
of the pleasure or pain derived from an action or omission. As an example, let us assume that
we have access to an IBCI which can improve the memory capacity of any person. A person
suffering from Alzheimer's disease would benefit from this technology, which may produce
utility and happiness. However, a person suffering from PTSD would be deeply disturbed and
derive no utility if a traumatic memory was enhanced. However, if the latter individual was
given the ability to induce targeted cognitive depreciation to erase a traumatic memory, then
they would benefit from the negative use of IBCIs. A different form of flourishing could also
be neutral flourishing, i.e., the ability to maintain status quo in life. For instance, a person with
clinical malevolent tendencies such as pyromania, kleptomania and sexual crimes can use
IBCIs to control their impulses.
163
Consequently, such persons can opt for such uses of IBCIs
to avoid being sent to a prison and have neutral flourishing by maintaining a status quo in their
lives. Therefore, negative, positive, and neutral actions have the ability to cause flourishing.
Since happiness and pleasure are subjective constructs, which cannot objectively fit in this idea
of human flourishing, I will not rely on them as yardsticks. This aspect will be dealt with further
in Section 3.3 when we try to understand human flourishing under a definite framework.
3.2.2. INTERPRETATION OF ARTICLE 8 AND THE RIGHT TO HUMAN FLOURISHING
Although the right to human flourishing has not been explicitly provided under Article 8, it is
the intrinsic human right which enables each person to take actions to strive for a better quality
of life through personal development.
164
Since, the idea of human flourishing can be
unquantifiable, normative and quite metaphysical, we need to understand the underlying
163
Sjors Ligthart, et al., ‘Closed-loop brain devices in offender rehabilitation: Autonomy, human rights, and
accountability’ Cambridge Quarterly of Healthcare Ethics (2021)
164
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 61; Bensaid v. the United
Kingdom, App no. 44599/98 (ECtHR 6 May 2001); Brüggeman and Scheuten v. Germany, App no. 6959/75
(Report of the Commission 12 July 1977), Para 55; Smirnova v. Russia, App nos. 46133/99 and 48183/99 (ECtHR
24 October 2003), Para 95; X v. Iceland , App No. 6825/74 (Commission Decision, 18 May 1976) pg. 87; Evans
v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 71; A-M.V. v. Finland, App No. 53251/13
(ECtHR 23 March 2017), Para 76; Schlumpf v. Switzerland, App no. 29002/06 (ECtHR 5 June 2009), Para 100
24
elements autonomy and identity, which form the crux of this right to human flourishing under
Article 8.
165
Since the Convention does not explicitly provide for these sub-rights, the ECtHR
through decisions has included them. As also noted by scholars, the principle of personal
autonomy has gained considerable importance within the right to privacy
166
as the ECtHR
recognises that personal autonomy is an important underlying principle of the guarantees
contained in Article 8.
167
Personal autonomy guarantees a person to be able to develop and
protect their identity, which includes their social identity, religion, ethnicity
168
and sexual
orientation,
169
protection and control of the image of a person.
170
Therefore, the right to
autonomy enables a person to exercise their reason virtuously to develop the desired identity
through personal development and consequently attain eudemonia. IBCIs can be a
technological innovation for giving effect to the aforesaid right to autonomy, identity and
personal development protected under Article 8. This technology can help persons with
disabilities by enabling them to pursue the development of their identity in a manner of their
choosing, thereby promoting their right to autonomy. Moreover, the ability to regain agency
can lead to the creation of follow-on benefits which allow them to pursue opportunities which
can improve their economic and overall well-being.
171
Furthermore, persons without
disabilities can make use of this technology to engage in social connections with persons with
disabilities,
172
obtain new capacities which were limited due to biological and socio-economic
limitations.
To illustrate the inclination of the ECtHR to interpret Article 8 in a dynamic manner
for promoting the right to personal development, identity, quality of life, the following two
cases were chosen specifically to indicate the breadth of the Court’s willingness to further
expand the scope of Article 8 and awareness that access to innovative new technologies
173
can
promote human flourishing by increasing the personal autonomy and enabling personal
development of individuals. To further clarify, the ECtHR has decided on multiple cases
pertaining the right to personal development and positive obligations of the State which has
been further discussed in Chapter 4 of the thesis.
174
165
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 61; Bart van der Sloot, ‘Privacy
as virtue: Moving beyond the individual in the age of big data’ UvA DARE (2017) 83, pg. 7, 12, 27, 28, 69;
166
de Hert and Serge Gutwirth (2009), pg. 15
167
Schlumpf v. Switzerland, App no. 29002/06 (ECtHR 5 June 2009), Para 100; I. v. The United Kingdom, App
No. no. 25680/94 (ECtHR 11 July 2002), para 70
168
Aksu v. Turkey, App no. 4149/04 and 41029/04 (ECtHR 15 March 2012) para 58
169
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002); Niemietz v. Germany, App No.
A/251-B (ECtHR 16 December 1992); Botta v. Italy App no. 21439/93 (ECtHR 24 February 1998); I. v. The
United Kingdom, App No. no. 25680/94 (ECtHR 11 July 2002), para 70
170
Reklos and Davourlis v. Greece, App no. 1234/05, (ECtHR 15 January 2009) para 40
171
See page 46
172
Supra 27
173
Mario Toboso, ‘Rethinking Disability in Amartya Sen’s Approach: ICT and Equality of Opportunity’ (2011)
Ethics and Information Technology (13) 107118
174
Kroon and Others v. the Netherlands, App no. 18535/91 (ECtHR, 27 October 1994), Para 31; Lozovyye v.
Russia, App no. 4587/09 (ECtHR 24 April 2018) Para 36; Bédat v. Switzerland, App no. 56925/08 (ECtHR 29
March 2016) Para 73; X and Y v. Romania, App nos. 2145/16 and 20607/16 (ECtHR 19 January 2021), Para 145;
25
However, the following cases were chosen, firstly, because they highlight the
variability of the Court’s interpretation of Article 8 and the right to personal development. This
is because the ECtHR relied heavily on the margin of appreciation of States in the Sentges
case,
175
which was pronounced within one year of the landmark decision in the Goodwin case
176
where the ECtHR substantially diluted the margin of appreciation of the United Kingdom.
Secondly, both cases pertained to the use of new innovative technologies which enable
individuals to fulfil their personal development and identity. Thirdly, due to changing societal
norms in a transhumanist society, there may be a demand for a new identity arising out of the
proliferation of IBCIs. Through a combined analysis of these cases, it seems that the ECtHR
may again curtail outdated societal norms against use of IBCIs for non-medical uses,
177
especially when IBCIs can ensure ‘very real improvements
178
to a person’s right to personal
development. Lastly, although the Court showed variance in its interpretation, in both cases the
ECtHR explicitly indicated that new technologies can ensure the promotion of the personal
autonomy of an individual and fulfilment of their right to personal development.
3.2.3. CHRISTINE GOODWIN VS. THE UNITED KINGDOM: A DYNAMIC INTERPRETATION OF
ARTICLE 8
As mentioned in Section 3.1, Article 8 includes the right to personal development, and the right
to establish and develop relationships with other human beings and the outside world.
179
Scholars have noted that, in addition to the right to determine identity, the right to privacy also
ensures a sphere within which everyone can freely purse the development and fulfilment of
their personality.
180
The ability to exercise such a right can enable an individual to pursue a
life of their choosing and maximize their ability to flourish. Furthermore, human are social
beings, and their ability to form bonds with other individuals can lead to well-being and a more
fulfilling quality of life.
181
Therefore, these aforesaid underlying rights are crucial for human
flourishing. In this regard, the ECtHR has held that quality of life is of great significance and
in era of growing medical sophistication combined with longer life expectancies, people should
not be forced to linger on in old age or states of advanced physical or mental decrepitude as it
X and Y v. the Netherlands, App no. 8978/80, (ECtHR 26 March 1985), Para 27; Gaskin v. the United Kingdom,
App no. 10454/83, (ECtHR 7 July 1989), Para 49; Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22
October 1981), Para 41; Infra 269
175
Sentges v. The Netherlands App No. 27677/02 (ECtHR 8 July 2003)
176
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002)
177
Ibid
178
Supra 175
179
Niemietz v. Germany, App A/251-B (ECtHR 16 December 1992) para 29; Pretty v. the United Kingdom App
no. 2346/02 (ECtHR, 29 April 2002) Para 61
180
Bart van der Sloot (2014), pg. 236
181
David Myers ‘The Funds, Friends, and Faith of Happy People’ (2000) The American Psychologist 55(1) 56
67, pg. 61, 62, 63; Ed Diener and Martin Seligman, Beyond Money: Toward an Economy of Well-Being (2004)
Psychological Science in the Public Interest 5(1) 1-31 <https://doi.org/10.1111%2Fj.0963-
7214.2004.00501001.x> accessed 23 August 2021, pg. 18; David Kimweli and William Stilwell Community
subjective well-being, personality traits and quality of life therapy (2002) Social Indicators Research, 60(1-3)
193225 <https://doi.org/10.1023/A:1021265115608> accessed 23 August 2021, pg. 218; Emma Seppala, et al.
‘Social Connection and Compassion: Important Predictors of Health and Well-Being’ (2013) Social Research
80(2) 41130, pg. 420
26
conflicts with the idea of self and personal identity.
182
This shows the inclination of the ECtHR
to interpret the Article in the light of the present day situation’.
In fact, in 2002 the ECtHR moved away from a conservative interpretation of the
Article regarding the recognition of the change of the sex of a person who had undergone a
gender reassignment surgery. Earlier, it was held that the refusal by the State to alter the register
of births or to issue modified birth certificates could not be considered as an interference with
the right to respect private life and the State had no positive obligation to alter the changes.
However, later in the case of Christine Goodwin vs. the United Kingdom,
183
the applicant was
a post-operative male-to-female transsexual who was a citizen in the United Kingdom and who
had undergone a gender reassignment surgency at a National Health Service (NHS) hospital
(at the cost of the NHS). She was sexually harassed at work and sought redressal at a relevant
tribunal, which failed since she was legally categorised as a man. On providing her social
security number, she faced certain issues at work. In addition, she was refused pension at the
statutory eligible age for a woman and further suffered other difficulties.
The ECtHR was of the opinion that since the Convention was primarily a system for
the protection of human rights, it was required to ‘give regard to the changing conditions and
it is of crucial importance that the Convention is interpreted and applied in a manner which
renders its rights practical and effective, not theoretical and illusory’, otherwise a failure to
maintain a dynamic and evolutive approach would risk rendering it a bar to reform or
improvement’.
184
Consequently, the ECtHR decided to review the issue pertaining to the
recognition of transsexuals from the prevailing views within and outside the United Kingdom.
The ECtHR held that the resulting stress and alienation for the applicant was not a minor
inconvenience arising from a formality as there was a clear disconnect between the social
reality and the law. Moreover, it was not logical to place the applicant in such a situation when
the surgery itself was legal and financed by the State. The ECtHR noted that ‘in the twenty first
century the right of transsexuals to personal development and to the physical and moral
security in the full sense enjoyed by others in society cannot be regarded as a matter of
controversy requiring the lapse of time to cast clearer light on the issues’
185
and neither would
her inclusion in the pension as a woman cause any injustice to others. Consequently, the ECtHR
held that there was a breach of Article 8.
The reason the judgment is discussed briefly along with relevant quotations, is because
it shows the inclination of the ECtHR to adopt a more expansive interpretation of Article 8.
This will aid our understanding and help determine if the current interpretation of Article 8 can
permit us to derive arguments for using IBCIs for promoting human flourishing under the right
to development in the age of transhumanism.
186
Certain key elements can be derived from the aforesaid decision. Firstly, although
available technology has made it more viable to improve the quality of life and pursue personal
182
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR, 29 April 2002)
183
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002)
184
Ibid, Para 74
185
Ibid , Para 90
186
Supra 56
27
development, there is a clear disconnect between the social norms and the law. Nevertheless,
the ECtHR adopted a more modern approach to acknowledge the role of new innovations and
their role in personal development. Secondly, a legally permissible State funded surgery which
resulted in the new identity could not be denied. Thirdly, the ECtHR acknowledged that the
Convention needs to be applied in a practical and effective manner and not in a theoretical and
illusory manner. Fourthly, failure to continue with the dynamic interpretation of the Article
would result in a stagnation of reform or improvement. Fifthly, it is the 21st century, therefore
otherwise traditionally controversial issues which may result in personal development and
allow for moral and physical security to individuals cannot be ignored and must be addressed.
Finally, personal development and recognition of new identities would not always place others
in financial jeopardy. Therefore, we can draw multiple parallel correlations from the case with
our discussion on the use of IBCIs for fulfilling the right of personal development and the right
to human flourishing.
Various forms of IBCIs are already available and can be used, either for therapeutic
or for non-therapeutic purposes,
187
to improve the quality of life and allow personal
development.
188
While the traditional theoretical debate about therapeutic and non-therapeutic
uses of IBCIs continues, in certain jurisdictions there may be greater proliferation of IBCIs,
resulting in even more fractured social norms. There seems to be a disconnect between the
evolving social norms and the legal framework which does not enable access to affordable
IBCIs.
Therefore, the ECtHR may adopt a similar interpretation as seen in the case of
Christine Goodwin and recognizes the value of IBCIs. Furthermore, the European Commission
(Commission) provides funding for various BCI projects which are aiming to allow for agency
to individuals
189
and has also adopted updated new laws to allow for the use of IBCIs for non-
medical uses.
190
Such policy stances by the Commission indicate the intention to enable
personal development and human flourishing through the use of IBCIs. In this regard, the
ECtHR noted that, when the use of a technology (i.e. the surgery in the case of Goodwin) was
itself funded by the State, then it was not logical to refuse legal recognition of the consequences.
IBCIs are cutting edge technologies which have restorative and improvement
functions which can help in the individual personal development and could also result in the
overall improvement of society. There is a need to continue the dynamic interpretation of the
Article
191
to continue improvement, otherwise other jurisdictions
192
which are more amenable
to such innovation will progress ahead and lead to a creation of a two-class society.
Controversial issues relating to voluntary improvement using IBCIs need to be addressed now
and cannot be ignored. There is a need to prepare polices and regulations with this dynamic
187
Infra 315
188
Infra 310
189
Infra 289; European Commission, Projects Story ‘TOBI: Mind Over Matter for People with Disabilities’
<https://ec.europa.eu/digital-single-market/en/news/tobi-mind-over-matter-people-disabilities> accessed 20
February 2021;
190
Infra 324
191
Supra 184
192
Infra 304
28
understanding of Article 8 as the ground norm, otherwise the Indirect Macro Risks (identified
in Section 2.3.2) may arise and result in unwanted effects on the society at large. Consequently,
States would have failed to perform the positive obligation, i.e. to prevent any form of societal
inequality due to the creation of a two class society. Moreover, as the ECtHR held in the
aforesaid case, promotion of personal development with the use of new technologies does not
necessarily place the community in financial jeopardy. Deriving inspiration from the decision
of the ECtHR, the use of IBCIs can have similar effects on the right to human flourishing and
means of enabling access to affordable IBCIs without placing the community in financial
jeopardy will be discussed in Chapter 4.
3.2.4. SENTGES V. NETHERLANDS: CURTAILED APPRECIATION OF THE RIGHT TO HUMAN
FLOURISHING
Although it seems that the ECtHR aims to take a dynamic approach, however its power is often
curtailed by the wide margin of appreciation held by States. Consequently, there is an
imposition of a high threshold for invoking Article 8 for protecting the right to personal
development. For instance, in the case Sentges v. Netherlands
193
, the ECtHR laid down certain
tests regarding invocation of Article 8 regarding the right of personal development, right to
establish and maintain relations with other human beings.
The applicant who suffered from progressive muscle degeneration and was entirely
dependent on others for mobility, sought additional healthcare insurance from State authorities
to obtain a robotic arm to allow him to regain a degree of autonomy. After failing to obtain the
necessary financial support, the applicant claimed before the ECtHR that the right to private
life included notions of quality of life, personal autonomy, self-determination, and a right to
establish and develop relationships with other human beings. Consequently, the applicant
claimed that the State had a positive obligation to pay for a robotic arm as it would allow him
to regain autonomy and enable him to develop relationships with other persons.
The ECtHR laid down certain tests to determine applicability of Article 8 in such cases
where persons seek the State’s support to use technological enhancements. For instance, the
State could have positive obligations under Article 8 when there is a direct and immediate link
between the measures sought by an applicant and the applicant’s private life. However,
Article 8 does not apply to situations concerning interpersonal relations of such broad and
indeterminate scope that there can be no conceivable link between the measures the State is
urged to take and an individual’s private life’. Moreover, Article 8 cannot be considered
applicable each time an individual’s everyday life is disrupted and can be invoked only in
exceptional cases where the State’s failure to adopt measures interferes with the individual’s
right to personal development or the right to establish and maintain relations with other
human beings and the outside word. Although the ECtHR did not expound on the right to
personal development in this decision, however, over the years, the ECtHR has held that the
193
Sentges v. The Netherlands App No. 27677/02 (ECtHR 8 July 2003)
29
right to personal development includes the right to develop their personality and identity, the
right to establish and develop relationship with other human beings.
194
It must be noted that the person claiming that the State has a positive obligation has
the burden of proof to show the direct link of their claim to fundamental values or essential
aspects of their private life protected under the Convention
195
or that there is a disconnect
between social norms and the legal system.
196
Subsequently, the ECtHR must ensure that a fair
balance is struck between the competing interests of the individual and the community as a
whole and due regard is given to the State’s wide margin of appreciation.
Although the ECtHR specified the aforesaid tests to determine the existence of
positive obligations of a State and voiced its opinion that the robotic arm could have a ‘very
real improvement for the applicant’s personal autonomy and the ability to develop
relationships with other human beings of his choice, the ECtHR avoided providing a
conclusive decision on the basis of the aforesaid tests as it was of the view that the decision in
the individual case will nevertheless at least to some extent establish a precedent. In fact, the
ECtHR did not categorically hold that the applicant had failed to meet the aforesaid test that
there was a direct link between the remedy sought and the violation of their right to personal
development under Article 8 by the State for not fulfilling their positive obligations. To the
contrary, the ECtHR directly held that the State had a larger margin of appreciation in the
matter and that the State was in a better position to conduct the fair balancing test given their
knowledge in the availability of the funds.
To conclude, the right to personal development and human flourishing as protected
under Article 8 includes the right to autonomy, identity, establish and develop relationships.
Therefore, if an individual can demonstrate that there is a direct, clear and immediate link,
between the failure of the State to adopt policies which affects these aforesaid rights, then there
could be an infringement of Article 8. IBCIs can ensure the restoration of agency for persons
with disabilities which can enable them to effectively enjoy these rights and the failure of the
State to enable equitable access to IBCIs could been seen as a direct, clear and immediate
violation of these rights. Furthermore, unequal access to IBCIs can create irreparable
generational inequalities, thereby directly and continuously infringing on these crucial rights.
This indicates that Article 8 has sufficient breadth for addressing the issue of ensuring access
to IBCIs for human flourishing, however it remains to be seen how the ECtHR deals with the
issue in the future.
CAPABILITY TO ACCESS IBCIS FOR HUMAN FLOURISHING
In an environment with rising inequality,
197
where more than 71% of the global population
suffers from some form of inequality or discrimination due to the adoption of utilitarian policies
194
Bart van der Sloot, ‘Privacy as Personality Right: Why the ECtHR's Focus on Ulterior Interests Might Prove
Indispensable in the Age of Big Data’, Utrecht Journal of International and European Law, 31(80) 2015 25 -50,
pg. 34, 35
195
Infra 264
196
Infra 265
197
European Parliament, Committee on Employment and Social Affairs Report on reducing inequalities with a
special focus on in-work poverty’ (2019/2188(INI) 27 January 2021) pg. 30
30
which benefit a few,
198
there is a need for the State to use their wide margin of appreciation to
act virtuously to ensure eudaimonia by framing policies to address the Direct Micro and
Indirect Macro Risks of IBCIs, in the interest of the society without rationalizing the
marginalization of any individual. Reports indicate that due to the absence of proper policies,
existing inequalities concentrate the political influence amongst a few, which preserves or
widens opportunity gaps. Consequently, individuals suffer from inequality due to disability,
ethnicity, origin, age, sex, and economic status. Furthermore, regulations prefer to regroup and
upskill, high-skilled workers into new responsibilities while adversely affecting low and
middle-skilled workers, consequently reinforcing the digital divide. Therefore, there is a need
for policy initiatives to promote equal access to opportunities, implementation of
macroeconomic fiscal policies for ensuring equity, addressing prejudice, and promoting
participation of disadvantaged groups.
199
Given this background, equitable opportunity to access IBCIs can allow individuals to
improve their cognitive abilities and attain capabilities which otherwise would not have been
possible, which can consequently mitigate some forms of existing inequality. To provide a
stronger foothold and a better conceptualization of this argument with a degree of objectivity,
I will refer to the capability approach pioneered by Amartya Sen
200
and further elucidated by
Martha Nussbaum,
201
which derives its foundation from the Aristotelian virtue ethics
paradigm.
202
The capability approach is a flexible and multi-purpose normative framework for
assessing individual levels of achieved well-being and freedom; social arrangements and social
institutions; the design of policies and other forms of social change in society.
203
This approach
relies on two core concepts. First, functioning, which is an achievement that a person manages
to do or be. For example, to be literate, to be in good health, to be a part of a community.
Second, the approach relies on capability, which concerns not only a person’s innate potential
or abilities, but the real opportunities or freedoms of individuals, which allow them to attain
various combinations of functioning.
204
This approach sets itself apart by not considering
resources, utility, happiness as a measure, since these measures are subjective and do not lead
to uniform enhancement of human capabilities.
205
Instead, the capability approach requires
198
United Nations, Department of Economic and Social Affairs, World Social Report 2020 Inequality In A
Rapidly Changing World’ (2020), pg. 5,6,7
199
Ibid
200
Amartya Sen, 'Equality of what?’ The Tanner Lectures on Human Values (1979)
<https://www.ophi.org.uk/wp-content/uploads/Sen-1979_Equality-of-What.pdf> accessed 27 February 2021;
Martha Nussbaum and Amartya Sen, ‘The Quality of Life, Capability and Well-being’. Oxford (2010)
201
Martha Nussbaum, ‘Creating Capabilities: The Human Development Approach’, Harvard University Press
(2011)
202
Séverine Deneulin Recovering Nussbaum's Aristotelian Roots International Journal of Social Economics,
(2013) 40(7), 624632 <https://doi.org/10.1108/IJSE-2012-0127> accessed 21 August 2021
203
Ingrid Robeyns, ‘The Capability Approach in Practice’ Journal of Political Philosophy (2006) 14(3), 351 376
204
Martha Nussbaum (2011), pg. 22; Wiebke Kuklys, ‘Amartya Sen's Capability Approach: Theoretical Insights
and Empirical Applications’ Springer (2005) pg.10; Ingrid Robeyns (2006), pg. 353
205
Ilse Oosterlaken, et al. ‘The Capability Approach, Technology and Design, Inappropriate Artefact, Unjust
Design? Human Diversity as a Key Concern in the Capability Approach and Inclusive Design’ (eds), Springer
(2012) 224 Although people who own bicycles are equal in regard to the possession of the transportation resource,
however mere possession does not make everyone equal. For instance, person with disabilities may not have the
31
State policies to target the expansion of capabilities (i.e. the opportunities) to allow persons the
freedom to choose and not impose forms of functioning
206
as deemed fit by the State. This
approach gives primacy to the choice and autonomy of individuals, which is also in accordance
with the interpretation of Article 8 by the ECtHR. In short, the capability approach stresses on
the reasoning that State policies should be framed which increase capacity of people to live the
life they value
207
and consequently it will lead to human flourishing.
Since the variety of virtues can result in innumerable combinations of sought capacities,
Martha Nussbaum has suggested that there are ten central capabilities, which include: Life as
the capacity to live to the normal end of a human life and not die prematurely or have a life not
worth living; Bodily Health as the capacity to have a good health (including reproductive
health), nourishment, shelter; Bodily Integrity as the capacity to move freely, be safe from any
assault or violence, have sexual satisfaction and choice in matters of reproduction; Sense,
imagination and thought as the capacity to use senses to imagine, think, reason and to do things
in a human way, have adequate education; Emotions as the ability to support forms of human
association as it is crucial for development; Practical Reason as the ability to protect liberty of
conscience; Affiliation as the capacity to live with others and engage in various forms of social
interaction, to not face any humiliation and discrimination; Other Species as the ability to live
with concern for the flora and fauna; Play as the capacity to laugh, play and enjoy recreational
activities; and Control over the person’s environment as the capacity to govern their own lives,
participate in politics, enjoy free speech and association, hold property, be able to seek
employment, be not subject to unwarranted search and seizure.
208
For instance, persons with disabilities can use IBCIs for treatment of various
neurological conditions
209
which can enable to live a normal Life with Good Health, Sense,
Imagination and Thought.
210
Certain IBCIs with neuroprosthetic limbs,
211
IBCI controlled
wheelchairs
212
or exoskeletons
213
can restore a degree of agency, thereby ensuring Bodily
Integrity.
214
Furthermore, IBCIs provide persons with disabilities the capability to express
Emotions
215
which otherwise would not have been possible using the usual muscular forms of
communication. Consequently, it enables such persons to take part in social interactions, take
part in employment, thereby promoting the capacities of Play, to form Affiliations and have
Control over the environment.
216
Furthermore, IBCIs can be used for non-medical purposes to
equal opportunity to enjoy the resource unless it a special kind of bicycle or a person in Netherlands or a country
where the State has great bicycle friendly infrastructure will be able to enjoy the resource than a person located in
a jurisdiction where no such infrastructure exists. Mere access to the same resource does not guarantee the same
functioning, especially because it’s a combination of internal and external capabilities.
206
Martha Nussbaum (2011), pg. 25 26; Andy Dong, ‘The Policy of Design: A Capabilities Approach’
Massachusetts Institute of Technology Design Issues (2008) 24(4) pg.82
207
Andy Dong (2008), pg.78
208
Martha Nussbaum (2011), pg. 33-34
209
Supra 2,3,4,5,6,7,12,13,14
210
Supra 208
211
Supra 8
212
Supra 9
213
Supra 10
214
Supra 208
215
Ibid
216
Ibid
32
provide the aforesaid capabilities and thereby ensure human flourishing. For instance, IBCIs
can determine alertness and the cognitive load
217
which can be used by long-haul drivers, air
traffic controllers, doctors
218
which can thereby provide capabilities such as Bodily Integrity
219
and ability for more employment while ensuring safety of oneself and the community. Research
indicates that IBCIs can facilitate brain-to-brain communication
220
which can enable persons
without disabilities to communicate with persons with disabilities through non-muscular forms
of information, which may otherwise not be possible, thereby providing the capability of
Affiliation.
221
Moreover, IBCIs can be used to increase the cognitive abilities of individuals,
thereby enabling persons the opportunity to seek better jobs which otherwise maybe unfeasible.
This can be especially relevant at a time when access to quality education is often a limiting
factor for enabling persons to seek better employment and fulfil their desire for a meaningful
life, thereby providing the capability of a meaningful Life.
222
Nonetheless, access to IBCIs should not be construed as a demand for distribution of
resources, but as a need-based equitable means of providing capabilities to persons to reach a
desired functioning. To clarify this assertion, eudaimonia does not correlate with hedonistic
demands which are targeting mere pleasure of an individual. Instead, the positive obligation on
the State to enable access to IBCIs for an individual must solely be entertained if the IBCI
enables a person to obtain one or more of the capabilities discussed above. The utility or
pleasure derived from the use of a memory enhancement IBCI can be useful and capability
enhancing for a person suffering from Alzheimer's disease, while significantly detrimental or
capability depreciating for a person suffering from PTSD. Instead, IBCIs which can diminish
memories can be useful for certain individuals. War veterans with PTSD who cannot lead a
normal life can make use of such cognitive diminishing IBCIs to lead a better Life. Therefore,
the demand for human flourishing cannot be represented as a uni-directional hedonistic curve,
but a bi-directional curve with human flourishing at both ends.
To further buttress the argument, we can take education as another example as
elaborated by Bostrom and Sandberg which provides an insightful understanding of the
discussion.
223
Education and training are one of the oldest forms of ‘mental software’
enhancement. It is essentially an external capacity building process which has allowed
individuals to reach their desired level of functioning through general improvement of mental
faculties.
224
It has been seen that having access to education has a direct impact on the economic
condition of a person, reduced risk of substance abuse and crime, higher social association, and
political participation.
225
These additional capabilities allow a person with education to achieve
other levels of functioning. Nevertheless, access to education is often not equal and therefore
perpetrates generational inequalities. Furthermore, it has been observed that it is easier to
217
Infra 235
218
Infra 236, 237, 238, 239, 240, 241, 242, 243
219
Supra 208
220
Supra 27
221
Ibid
222
Ibid
223
Bostrom and Sandberg (2009), pg.313
224
Ibid pg. 312
225
Grant Johnston, ‘Healthy, wealthy and wise? A review of the wider benefits of education’ Treasury Working
Paper Series 04/04 New Zealand Treasury (2004)
33
enhance persons with lower cognitive abilities, than persons with higher cognitive functioning,
thereby indicating the existence of diminishing marginal capability returns.
226
Deriving an
analogy to education, IBCIs can be a capability which allows marginalized individuals to gain
a cognitive growth to bridge the generational gap and achieving higher functioning. As
discussed earlier, IBCIs could have futuristic uses such as increasing the range of senses,
recording and recalling memories, enhancing memory, cyber-thinking or brain-to-brain
communication, inducing savant powers and allowing persons to directly access information
from a computer.
227
Combination of such capacities can enable a person to achieve certain
forms of functioning which otherwise would not have been possible.
To ensure human flourishing, the positive obligation of the State would be to enable
access to IBCIs to persons who lack certain basic capabilities as illustrated by Nussbaum. In
theory, the positive obligation of the State would not exist for a person who already possesses
the capabilities which the IBCI will consequently provide. However, claimants can be creative
in their arguments to make unwarranted claims for access to IBCIs and therefore the ECtHR
can have a dynamic
228
role in establishing rich jurisprudence on this human capability and
flourishing approach by reviewing the merits of each case. It is true that the capability approach
and giving effect to a right to human flourishing will result in a larger number of cases to be
filed before the ECtHR, but the inclusion of in abstracto claims and group applications
indicates the Court’s willingness to consider diverse and numerous matters. Therefore, as the
sum total of the potential to achieve human flourishing depends on the ability of an individual
to obtain the internal capabilities as mentioned by Nussbaum and successful mitigation of the
Direct Micro and Indirect Macro Risks as highlighted in Chapter 2, there is a need for the State
to fulfil its positive obligations under Article 8 through the adoption of policies and legal
regimes.
Furthermore, virtue ethics
229
and the capability approach
230
also find application in
bioethics. Access to healthcare is often primarily restricted due to financial, legal, and social
reasons.
231
For instance, certain jurisdictions may not permit abortions and consequently, the
persons need to engage in medical tourism.
232
This is not only expensive and unviable for
many, but also quite distressing as they would lack the necessary support from family and
friends, which was otherwise possible. Some States may have conservative views and not
recognize the need for certain forms of gender reassignment surgeries due to which the person
is denied the autonomy and identity, which is otherwise protected under Article 8. As another
example, insurance companies may refuse to cover certain healthcare costs which they classify
as non-therapeutic.
All the aforesaid examples show that due to the denial of capabilities and external
factors restricting access to healthcare, a person is not able to reach the desired functioning and
226
Bostrom and Sandberg (2009), pg. 329
227
Supra 23, 24, 25, 26, 27, 28, 29
228
de Hert and Serge Gutwirth, (2009), pg. 16
229
Stephen Holland, ‘The Virtue Ethics Approach to Bioethics’ Bioethics (2011) 25(4) 195
230
Jan Helge Solbakk, ‘Development and Bioethics’ Encyclopedia of Global Bioethics (2015)
231
L. v. Lithuania App no. 27527/03 (ECtHR 31 March 2008) para 58 60
232
Supra 105
34
consequently results in the failure to flourish. In healthcare there is often a concept of rationing
of resources, due to which the costs for special needs are usually discounted to accommodate
the larger interest. For instance, in Sentges v. Netherlands, although the ECtHR was aware the
access to a robotic arm for a person suffering from degenerative muscle disorder would be
extremely beneficial, it relied on the practice of rationing adopted by the State. In fact, it has
been found from clinical empirical research, that restoration of motor functions can improve
the well-being of a person.
233
Pursuant to the inclusive interpretation of Article 8 under the virtue ethics based
capability approach framework, such rationing would result in a violation in the right to human
flourishing. Since the State is required to act virtuously, it would have been required to adopt
necessary policies to make the robotic arm financially viable. Denial of access to a justifiably
sought technology, due to mere infrastructural and economic inefficiencies could not be
considered to be virtuous. Since the thesis adopts a normative welfarist approach, in the
absence of specific State policies on access to IBCIs, the ECtHR would need to review certain
cases under Article 8 pertaining to IBCIs and formulate specific jurisprudence. Consequently,
the ECtHR may hold States liable for violating Article 8 for failing to establish policies for
ensuring equitable access to IBCIs, thereby paving the way for the creation of substantive laws
and policies.
To make a compelling argument that the State should act virtuously to ensure access to
IBCIs for medical and non-medical uses
234
by removing the Direct Micro and Indirect Macro
Risks, I will illustrate certain uses which not only allow individuals to flourish, but also benefits
the society at large. Given the plurality of uses of IBCIs which can lead to various forms of
functioning, these examples are non-exhaustive in nature.
Since IBCIs are portable and embedded, they can provide a steady stream of high-
quality information. Such information can be used to determine the cognitive load and alertness
of a person.
235
By using an IBCI, a driver (especially in the long duration transportation
sector)
236
can be informed of their alertness while driving.
237
Studies have shown BCIs to be a
promising tool
238
that can help prevent deaths of more than 1.3 million people every year, who
perish due to vehicle accidents and crash related injuries,
239
largely resulting from distraction
and fatigue.
240
Furthermore, air traffic controllers who are often subject to high stress and
233
Surjo Soekadar (2015)
234
Andrea Kübler and Klaus-Robert Müller (2007) pg. 7
235
Ibid at pg. 3; Benjamin Blankertz, et al., (2010) pg.7
236
Chin-Teng Lin, et al., ‘A Real-Time Wireless Brain–Computer Interface System for Drowsiness Detection’
(2010) 4 214222 IEEE Transactions on Biomedical Circuits and Systems; Pietro Arico, et al., ‘Passive BCI in
operational environments: insights, recent advances, and future trends’ IEEE Transactions on Biomedical
Engineering (2017) 64 (7) 14311436; Benjamin Blankertz, et al., (2010) pg.8
237
Ning-Han Liu, et al., ‘Improving driver alertness through music selection using a mobile EEG to detect
brainwaves’ Sensors (2013) 13(7) 81998221; Andrea Kübler and Klaus-Robert Müller (2007) pg. 3, 7
238
Christos Papadelis, et al., ‘Monitoring Sleepiness with On-Board Electrophysiological Recordings for
Preventing Sleep-Deprived Traffic Accidents’ Clinical Neurophysiology (2007) 118(9) 1906–1922, pg. 1920;
Benjamin Blankertz, et al., (2010) pg.10
239
World Health Organisation, Global Status Report on Road Safety (2018)
<https://www.who.int/publications/i/item/9789241565684> accessed 25 February 2021
240
Benjamin Blankertz, et al., (2010) pg. 8
35
cognitive loads can be informed about their mental fatigue and attention.
241
Reduction of
human errors in such crucial areas can ensure the safety of numerous persons and the
community. IBCIs can be very useful for the heavy industry professionals and factory workers
who can also be informed about their alertness,
242
which can reduce the number of accidents
and also save lives.
243
A doctor performing an IBCI assisted robotic arm surgery can reduce
human errors resulting from inadvertent shakes as the IBCI can pre-detect error potentials in
the brain even before the error has occurred. This is not a clear therapeutic use as it enhances
the performance of a surgeon, but indirectly benefits the person undergoing the medical
treatment. Moreover, reports indicate that social robots are wonderful means for individuals,
especially the elderly, to lead a better quality of life. Therefore, IBCIs can provide realtime
information about the user to the social robot which can make the social robot experience more
personalized and more intuitive. In another instance, a person with last stage ALS was provided
an IBCI which allowed her to control communication devices with minimal assistance.
Consequently, she was able to regain a degree of agency and reported a high level of
satisfaction with the device.
These are not exactly medical uses, but at the same time provide capabilities to persons
to fulfil their desired functioning, promote individual and societal safety, while ensuring human
flourishing. Such uses of IBCIs could be deemed to be just another layer of road, labor, and
airline safety measures. The ability of the State to decrease the mortality rate would also be
extremely beneficial for society and companies as they would face lower accident-related costs.
However, such non-medical use of IBCIs does raise various other legal and ethical issues,
including if such use of IBCIs can result in standardization and can be required as a part of the
employment requirements in the workplace. Since such questions are beyond the limited
purview of this thesis, these important legal and ethical questions can be crucial points for
further research.
Although the ECtHR has not explicitly adopted a virtue ethics based capability
approach, the divergence from the original strict patient-based framework of Article 8 to ensure
that the Convention is interpreted in a manner which renders its rights practical and not
illusory
244
and the issuance of prescriptive directions to States to act virtuously through
inclusion of wider positive obligations for enabling new capabilities for personal
development,
245
signals the implicit endorsement of this approach. Furthermore, elements of
the tenets under the capability approach as elucidated by Martha Nussbaum which include
241
Pietro Aricò, et al., ‘Adaptive automation triggered by EEG-based mental workload index: a passive brain-
computer interface application in realistic air traffic control environment’ Frontiers in Human Neuroscience
(2016) 10 539; Daniel J. Szafir and Bilge Mutlu, ‘Pay attention!: designing adaptive agents that monitor and
improve user engagement’ in Proceedings of the SIGCHI Conference on Human Factors in Computing Systems
(2012) 1120; Benjamin Blankertz, et al., (2010) pg. 7
242
Matthias Schultze-Kraft, et al., ‘Towards an online detection of workload in industrial work environments’
34th Annual International Conference of the IEEE EMBS (2012) 47924795.
243
M. Mousavi and V. R. de Sa, ‘Spatio-temporal analysis of error-related brain activity in active and passive
braincomputer interfaces’ (2019) 6(4) 118-127 Brain-Computer Interfaces
244
Supra 184
245
Infra 269; Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002); X and Y v. the
Netherlands, App no. 8978/80, (ECtHR 26 March 1985), Para 27; Gaskin v. the United Kingdom, App no.
10454/83, (ECtHR 7 July 1989), Para 49; Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22 October
1981), Para 41
36
bodily health, bodily integrity,
246
affiliation and ability for human associations
247
are reflected
as rights under Article 8.
248
Therefore, the underlying elements required to give effect to the
right to human flourishing have been recognized by the ECtHR.
249
With the proliferation of
IBCIs and evolving societal norms, the Court could be required to establish conclusive
jurisprudence, that access to IBCIs is a positive obligation of the State due to the reasonable
likelihood of future harm which could lead to a violation of the right to privacy. Due to the
plurality norms and variety of applications of IBCIs, this malleable normative virtue ethics
based capability approach could prove to be a viable framework to justify the inclusion of this
abstract right to access IBCIs.
SUFFICIENCY OF ARTICLE 8: REGULATING IBCIS AND PROTECTING THE RIGHT TO
HUMAN FLOURISHING
To determine the sufficiency of Article 8 as a viable ground norm to regulate access to IBCIs
for protecting the right to privacy and ensuring human flourishing, it is essential to understand
from existing jurisprudence, the breadth of the scope and degree of flexibility that Article 8 is
able to afford for adapting to the uncertainties posed due to the changing technological
landscape.
The ECtHR acknowledges that Article 8 is a broad and inclusive right which requires
a dynamic interpretation.
250
It includes right to personal development, right to quality of life,
right to establish and develop relationships with other human beings and right to autonomy.
251
Based on this trend of expanding the scope of Article 8, in principle, the ECtHR may determine
that the State has a positive obligation to ensure access to IBCIs if an individual can
demonstrate a clear, direct and immediate link
252
that the IBCI would enable the person to gain
capabilities which facilitate the enjoyment of the aforesaid rights or otherwise can lead to a
foreseeable harm in the future.
253
To clarify, the rights under Article 8 are capabilities which
permit individuals to attain a functioning of their choice. Consequently, if individuals are truly
able to obtain these capacities, they can achieve eudemonia or human flourishing. Both the
aforesaid cases illustrate the ECtHR willingness to accept the use of new technologies for
promoting the right to personal development and human flourishing.
Nevertheless, the Court may curtail access to IBCIs if it determines that States have a
wide margin of appreciation on policy matters pertaining to controversial ethical issues raised
246
X and Y v. the Netherlands, App no. 8978/80, (ECtHR 26 March 1985)
247
X, Y and Z v. the United Kingdom, App no. 21830/93 (ECtHR 22 April 1997)
248
Supra 201
249
Infra 251
250
de Hert and Serge Gutwirth, (2009), pg. 16
251
Pretty v. the United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 61; Bensaid v. the United
Kingdom, App no. 44599/98 (ECtHR 6 May 2001); Brüggeman and Scheuten v. Germany, App no. 6959/75
(Report of the Commission 12 July 1977), Para 55; Smirnova v. Russia, App nos. 46133/99 and 48183/99 (ECtHR
24 October 2003), Para 95; A-M.V. v. Finland, App No. 53251/13 (ECtHR 23 March 2017), Para 76; Schlumpf v.
Switzerland, App no. 29002/06 (ECtHR 5 June 2009), Para 100
252
Sentges v. The Netherlands App No. 27677/02 (ECtHR 8 July 2003)
253
Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22 October 1981), para 41; Michaud v. France,
App No. 12323/33 (ECtHR 6 December 2012) para 51, 52
37
by IBCIs, unless the policy is clearly disconnected from social reality.
254
The Court may, by
using the living instrument doctrine, take a stance while reviewing the societal norms of a
transhumanist society of not just the relevant Member State, but of other jurisdictions
255
and
identify that the continued absence of positive actions by the State to mitigate the Direct Micro
and Indirect Macro Risks may result in the creation of a two-class society.
Given the fast pace of technological development and abstraction, it often becomes
difficult for individuals to specify a direct harm. Consequently, the ability of individuals to
seek in abstracto and a priori claims posits a clear shift in the right-duty paradigm of Article 8
towards an approach more in line with virtue ethics. By establishing Article 8 as a ground norm
in an open-ended construct of virtues and applying the capability approach amidst an
environment of technological expansion and abstraction will enable the ECtHR to have enough
room to maneuver when faced with any novel issues related to the use of IBCIs. In short,
existence of the implicit underlying elements and a framework which can be used to instill the
right to human flourishing reveals that Article 8 is sufficient ground norm to regulate IBCIs.
CHAPTER 4: ROLE OF THE STATE TO ENSURE THE RIGHT TO HUMAN FLOURISHING
POSITIVE OBLIGATIONS OF THE STATE
The right to privacy under Article 8 is not an absolute right and includes certain exceptions
where interference maybe permitted in accordance with specified, foreseeable, clear and
precise laws
256
for a legitimate aim
257
which is necessary in a democratic society.
258
Nevertheless, scholars have noted, that the ECtHR ‘has made skillful use’ of Article 8 to
regulate new technologies.
259
The ECtHR has held that although the primary objective of
Article 8 was to protect individuals against arbitrary interferences by public authorities in the
private and family life, home and correspondence of a person, States also have positive
obligations for providing effective protection of the right to privacy under Article 8.
260
Therefore, States have negative duties to not infringe on rights of individuals, as well as positive
duties to effectively enable the possibility of enjoying the right to privacy. However, States
enjoy a wide margin of appreciation for giving effect to the positive obligations.
261
254
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002), para 77
255
Ibid
256
Rotaru v. Romania, App No. 28341/95 (ECtHR 4 May 2000), Para 57; Taylor-Sabori v. the United Kingdom,
App No. 47114/99 (ECtHR 22 October 2002) Para 17; Vukota-Bojić v. Switzerland, No. 61838/10, (ECtHR 18
October 2016), Para. 77; Amann v. Switzerland, App No. 27798/95 (ECtHR 16 February 2000), Para 50, 56;
257
Article 8(2) of the Convention, Legitimate interests include actions taken in the interests of national security,
public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals or protection of the rights and freedoms’ of individuals.
258
Article 8(2) of the Convention
259
de Hert and Serge Gutwirth, (2009), pg. 18
260
Kroon and Others v. the Netherlands, App no. 18535/91 (ECtHR, 27 October 1994), Para 31; Lozovyye v.
Russia, App no. 4587/09 (ECtHR 24 April 2018) Para 36; Bédat v. Switzerland, App no. 56925/08 (ECtHR 29
March 2016) Para 73; X and Y v. Romania, App nos. 2145/16 and 20607/16 (ECtHR 19 January 2021), Para 145
261
Fadeyeva v. Russia, App no. 55723/00 (ECtHR 30 November 2005), Para 96; A, B and C v. Ireland, App no.
25579/05 (ECtHR 16 December 2010), Para 249; Lozovyye v. Russia, App no. 4587/09 (ECtHR 24 April 2018)
Para 36; Hämäläinen v. Finland, App no. 37359/09 (ECtHR 16 July 2014), Para 67
38
The general principles for determining the positive obligations and negative obligations
are similar,
262
since a fair balance must be maintained between the competing interests of the
individual and society.
263
In addition, the ECtHR considers additional factors to determine the
existence of positive obligations of the State which relate to the interests of the aggrieved
individual and impact on the State which include: if the interest of the individual at stake is
important as it relates to fundamental values or essential aspects of private life,
264
or the impact
on the individual is due to the disconnect between social reality, law, administrative and legal
practices within the legal system
265
or when the state of the domestic law conflicts with an
important aspect of personal identity’
266
or if the positive obligation is either narrow and
precise or broad and intermediate without any conceivable link between the measures
sought
267
or the quantum of burden the obligation would impose on the State.
268
Based on these factors, the ECtHR determines the extent of the margin of appreciation
States have regarding the fulfilment of the positive obligations. For instance, if an important
facet of an individual’s existence or identity is at stake, the margin allowed to the State will be
restricted’.
269
While on matters where there is no consensus between Member States regarding
the ‘importance of the interest at stake or as to the best means of protecting it’, especially on
matters which raise moral or ethical issues and the law is in a transitory phase, the margin given
to States will be wider.
270
This is commonly referred to as the consensus approach. As a trend,
the ECtHR has often held that States had a wider margin of appreciation on difficult and ethical
issues where there was no consensus between States and that there was no violation of Article
8.
271
Amongst the aforesaid decisions, a number of dissenting judges showed clear
disagreement with the majority decisions and have been critical of this consensus approach.
272
The dissenting judges have opined that: the extensive reliance on the consensus approach was
not a correct tool for determining the width of the States’ margin of appreciation, since this
tool itself becomes limited when the issue relates to an important fact of the individual’s
262
mäläinen v. Finland, App no. 37359/09 (ECtHR 16 July 2014), Para 65
263
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR 11 July 2002), Para 72; Cossey v. The United
Kingdom, App no. 10843/84 (ECtHR 27 September 1990), Para 37;
264
X and Y v. the Netherlands, App no. 8978/80, (ECtHR 26 March 1985), Para 27; Gaskin v. the United Kingdom,
App no. 10454/83, (ECtHR 7 July 1989), Para 49
265
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR 11 July 2002), Para 77
266
Dudgeon v. The United Kingdom, App No. 7525/76 (ECtHR 22 October 1981), Para 41
267
Botta v. Italy, App No. 153/1996/772/973 (ECtHR 24 February 1988), Para 35
268
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR 11 July 2002), Para 87, 88
269
Hämäläinen v. Finland, App no. 37359/09 (ECtHR 16 July 2014), Para 67; Evans v. the United Kingdom, App
no. 6339/05 (ECtHR 10 April 2007), Para 77; X and Y v. the Netherlands, App no. 8978/80, (ECtHR 26 March
1985), Para 24; Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR 11 July 2002), Para 90; Pretty v. the
United Kingdom, App no. 2346/02 (ECtHR 29 April 2002), Para 71; S.V. v. Italy, App no. 55216/08 (ECtHR 11
October 2018) Para 62; A.P., Garçon and Nicot V. France, App nos. 79885/12, 52471/13 and 52596/13 (ECtHR
6 April 2017), Para 123
270
X, Y and Z v. the United Kingdom, App no. 21830/93 (ECtHR 22 April 1997), Para 44; Fretté v. France, App
no. 36515/97, (ECtHR 26 May 2002), Para 4; Hämäläinen v. Finland, App no. 37359/09 (ECtHR 16 July 2014),
Para 67; Evans v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 81. 82
271
Evans v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 92; S.H. And Others v. Austria,
App no. 57813/00 (ECtHR 3 November 2011), Para 115, 116;
272
Judges Sajó, Keller, Lemmens, Türmen, Tsatsa-Nikolovska, Spielmann, Ziemele, Tulkens, Hirvelä, Lazarova
Trajkovska and Tsotsoria
39
existence or identity. Instead, as the general rule, when particularly important aspects of a
Convention right is concerned, the Court should examine individual cases with strict scrutiny,
even if many States are concerned.
273
Furthermore, this consensus approach has been
considered as an instrument of retrogression for allowing the lowest common denominator
among the States to prevailand the Court’s deference to this approach must have its limits,
and find that the absence of a consensus cannot serve to widen the State’s narrowed margin of
appreciation.
274
Although this bright-line test does provide an advantage of legal certainty,
but the major disadvantage is that the absolute nature of the rule provides too much certainty
and no flexibility
275
especially when there is dynamic development in science.
276
This inability
of legal frameworks and State policies to adapt to changing technologies has been famously
referred to as Pacing Problem.
277
For instance, even with innovation and technological advancements in invitro
treatments, due to the Court’s reliance on this consensus approach a person was made incapable
of having a genetically related child at any point of time thereafter.
278
This approach was
heavily critiqued by the dissenting judges on the case and opined that sensitive cases cannot be
decided on a simplistic, mechanical basis, namely there is not consensus in Europe, therefore
the Government has a wide margin of appreciation’.
279
Therefore the ECtHR should not use
the margin of appreciation principle as a merely pragmatic substitute for a thought-out
approach to the proper scope of review.’
280
This approach of relying on the European
consensus has in the past led to acts of gross injustice both in Europe and beyond’.
281
In another case, the dissenting judges observed that the ECtHR did not consider the
time factorand relied on the consensus between States on erstwhile ethical and moral issues
from decades earlier, to arrive at a decision after years of scientific development and societal
change had taken place.
282
By ignoring the time factor and continuing to use this approach in
this manner is an ‘unprecedented step of conferring a new dimension on the European
consensus which applies a particularly low threshold, potentially extending the States’ margin
of appreciation beyond limits and consequently the Court maybe departing from the real
European consensus.
283
Although in 2002, the ECtHR refrained from applying the consensus
approach and diluted the margin of appreciation on difficult ethical issues,
284
subsequently the
273
Dissenting opinion of Judges Sajó, Keller and Lemmens, Hämäläinen v. Finland, App no. 37359/09 (ECtHR
16 July 2014), Para 5
274
Ibid, Para 5
275
Dissenting opinion of Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele, Evans v. the United
Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 6(i)
276
S.H. And Others v. Austria, App no. 57813/00 (ECtHR 3 November 2011), Para 118
277
Supra 58
278
Dissenting opinion of Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele, Evans v. the United
Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 7
279
Ibid, Para 12
280
Ibid
281
Concurring separate opinion of Judge De Gaetano, S.H. And Others v. Austria, App no. 57813/00 (ECtHR 3
November 2011), Para 4
282
Dissenting opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, S.H. And Others v. Austria,
App no. 57813/00 (ECtHR 3 November 2011), Para 4, 8
283
Dissenting opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria, S.H. And Others v. Austria,
App no. 57813/00 (ECtHR 3 November 2011), Para 8, 10
284
Goodwin v. the United Kingdom, App no. 28957/95 (ECtHR, 11 July 2002)
40
ECtHR has often relied on this approach. Furthermore, in 2003, while acknowledging that the
robotic arm would provide a ‘very real improvement’ to the personal autonomy and the ability
to establish and develop relationships with other individuals, the ECtHR granted a wide margin
of appreciation and refused the person to receive a robotic arm, since the State was better able
to understand the financial impact of such a demand.
STATE CONSENSUS ON THE USE OF IBCIS FOR PERSONAL DEVELOPMENT &
HUMAN FLOURISHING
States have positive obligations to ensure protection of the right to personal development and
consequently the ability for human flourishing. Since the ECtHR continues to rely on the
consensus approach on difficult ethical issues, with minor divergences, it is important to
determine the current consensus of States on the use of IBCIs as capability enhancing
technologies.
The ECtHR has relied on policy documents of relevant States to determine the status
of consensus on ethical and moral issues.
285
Therefore, we can refer to policy documents and
BCI project frameworks funded by the Commission to determine the current consensus IBCIs
can have to promote wellbeing and human flourishing protected under Article 8. In 2006, the
Commission adopted the Seventh Framework Programme for Research under which a Euro
50,521 million grant was established for technological development for economic growth and
social well-being.
286
The objective of the framework was to ensure trans-national cooperation
in various scientific fields, including research on brain and human development, robotic
systems, implants
287
to reduce the digital divide and social exclusion.
288
Under this framework, the Future Brain Neuronal Computer Interaction Initiative
(BNCI) received funding to foster collaboration and communication among relevant
stakeholders. Between 2008 and 2013, thirteen BCI projects
289
were funded under BCNI which
285
Evans v. the United Kingdom, App no. 6339/05 (ECtHR 10 April 2007), Para 86, 87; Hatton and Others v. the
United Kingdom, App No. 36022/97 (ECtHR 8 July 2003) Para 128
286
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning
the Seventh Framework Programme of the European Community for research, technological development and
demonstration activities (2007-2013), Para 5, 8
287
Ibid, Annex 1
288
Ibid, Article 2, Annex 1, Para 1
289
Tools for Brain-Computer Interaction (TOBI) Project <https://cordis.europa.eu/project/id/224631> accessed
25 July 2021; An ambulatory BCI-driven tremor suppression system based on functional electrical stimulation
(TREMOR) Project <https://cordis.europa.eu/project/id/224051> accessed 25 July 2021; BCIs with Rapid
Automated Interfaces for Nonexperts (BRAIN) Project < https://cordis.europa.eu/project/id/224156> accessed 25
July 2021; Deployment of Brain-Computer Interfaces for the Detection of Consciousness in Non-Responsive
Patients (DECODER) Project; <https://cordis.europa.eu/project/id/247919> accessed 25 July 2021; BNCI-driven
Robotic Physical Therapies in Stroke Rehabilitation of Gait Disorders (BETTER) Project
<https://cordis.europa.eu/project/id/247935> accessed 25 July 2021; Autonomy and social inclusion through
mixed reality Brain-Computer Interfaces: Connecting the disabled to their physical and social world
(BRAINABLE) Project <https://cordis.europa.eu/project/id/247447> accessed 25 July 2021; Future Directions in
Brain/Neuronal Computer Interaction (BNCI) Research (Future BNCI)