IEEE Technology and Society Magazine - March 2023 - 57

continues with the latest resolution of the HR Council
adopted in October 2021 [27]. This discourse
is mainly made up of a series of resolutions of the
UNGA and HR Council and several reports of the UN
Special Rapporteur on the Right to Privacy (SRP)
[28]. Aside from an attempt to launch a treaty process
on government surveillance and a set of soft
laws proposed by the SRP [29], no tangible standards
have emerged out of the discourse thus far.
An emerging trend, however, is that recent iterations
of the free speech and privacy resolutions
exhibit remarkable convergence of substance. For
instance, the latest free speech resolution reiterates
the importance of encryption and anonymity
technologies for the enjoyment of human rights in
the digital age [30]. This tendency of convergence
is also increasingly visible between the privacy resolutions
and HR Council resolutions on new and
emerging technologies. But the cross-influence is
more significant between the privacy resolutions
and the resolutions on new and emerging technologies.
The latest privacy resolution of the HR Council
likewise highlights the need to embed human
rights safeguards in the conception and design of
emerging technologies, to put in place oversight and
redress mechanisms [31]. This propensity of cohesion
in substance may be taken to signal the gradual
development of a coherent discursive approach to
emergent technologies.
But this apparently random cross-influence of
norms can be problematic. At one level, it may gradually
undermine the potential of each discourse
developing into a freestanding international legislative
response. The fervor of the Snowden debacle
had the effect of leading to the incorporation of progressive
norms in the privacy resolutions. But with
the recent cross-fertilization of norms, the prospect
of the privacy discourse culminating in an international
law response on privacy and data protection
is diminishing. A slightly similar setback afflicts the
resolutions on new and emerging technologies.
Moving past generic resolutions, the HR Council-as
hinted above and considered further in this article-
has recently begun to adopt resolutions focusing on
specific technologies such as neurotechnology. By
fragmenting the discourse and hence resources, this
approach may undermine the prospect of timely,
robust, and comprehensive international standards.
What emerges from the above brief survey is that
the UN effort in the field of digital human rights has
March 2023
been largely momentary. UN processes aimed at
understanding and responding to modern technologies
often followed certain major developments or
political events. True to tradition, the most recent initiative
at the HR Council appears to be prompted by
the palpable global discussions around the increasing
role of new and emerging technologies such as AI in
society. Whether the latest discourse breaks away
from this tradition is considered in what follows.
Making sense of the discourse
The HR Council's new initiative on human rights
and digital technologies consists mainly of a series
of resolutions. Resolutions are types of soft law that
carry no legally binding force [32]. But they might
have a legal effect in that norms embodied in resolutions
might find application in practice regardless
of the lack of binding legal force. Addressed often to
States-but also at times to nonstate actors such as
corporations-resolutions call upon specific measures
to be taken by the respective addressees. And
this might, in some cases, be heeded to by States and
nonstate actors. For instance, a state may volitionally
enact legislation or align its regulatory practices
based on " calls " made in resolutions. Resolutions are
also known to be incipient steps toward the ultimate
adoption of hard law such as international treaties
which, in contrast, carry legally binding force. Other
forms of hard law in international law such as customary
international law might also gradually evolve
from soft law such as resolutions. In that sense, the
fact that the ongoing discourse at the UN on digital
human rights relies on resolutions should not be a
reason to discount its potential of evolving into an
international human rights response to new and
emerging technologies.
As part of this evolving discourse, the Council had
commissioned its Advisory Committee to prepare a
report on the subject [33]. Drawn up largely based
on inputs from various stakeholders including civil
society groups and States, the Advisory Committee's
first report maps the possible impacts, opportunities,
and challenges of new technologies with regard to
the promotion and protection of human rights [34].
This is in addition to consultative multistakeholder
workshops and panels that the Council requested
the Office of the High Commissioner for Human
Rights (OHCHR) to hold in the effort to better understand
the cross-cutting impacts of new and emerging
technologies on the enjoyment of human rights
57
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