IEEE Technology and Society Magazine - March 2023 - 58

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[35].2 Forming also part of this discourse are several
thematic reports of the Council's special procedures
where the human rights impact of new and emerging
technologies is considered in specific contexts.
After the adoption of the first HR Council resolution,
the Special Rapporteur on Contemporary Forms of
Racism, for instance, presented reports to the Council
and the UNGA on issues at the intersection of
emerging technologies and racial discrimination
[36], [37]. Another example is a report of the Special
Rapporteur on Extreme Poverty and Human Rights
that examines the impact of growing digitalization
on welfare and social protection systems [38]. More
thematic reports by the Advisory Committee and
respective special rapporteurs are expected in the
years ahead as the discourse unfolds.
Despite being in a state of flux, the discourse generally
exhibits two salient features. One is that the
discourse, particularly the resolutions adopted thus
far, is a result of cross-fertilization of norms. The resolutions
evidently are based on preceding reports of
the Council's Advisory Committee as well as reports
of special rapporteurs-alluded to above-the drafting
of which often involves drawing upon inputs provided
by stakeholders. Such room for contributions
from stakeholder groups opens the door for the use
of exogenous jurisprudence. One sees, in this regard,
clear marks of European jurisprudence in the content
of the resolution. Further shaping the normative
contours of the resolutions are nonlegal soft laws
launched as part of a longstanding movement called
Internet Bills of Rights (IBRs). Put simply, IBRs are
initiatives driven largely by civil society groups that
seek to reimagine human rights standards in light of
new threats in the digital age [39]. In the past decade,
several IBRs that propose progressive rights,
principles, and governance norms for new and
emerging technologies have proliferated. But the
net effect of the normative cross-influence of such
initiatives on the progressive development of international
human rights law has been, by and large,
negligible. An inherently slow process at the UN
means progressive norms brought forward with such
complex processes of cross-influence do not often
go far enough to chart the methodological and normative
direction of international human rights law.
A second notable feature of the HR Council resolutions
on human rights and technologies is their
2On 8 July 2020, the Council had convened a panel on the topic at its 44th session.
See details at https://bit.ly/2Zwahw9.
abbreviated nature. Resolutions are structurally far
more truncated than other types of soft law such
as declarations, guidelines, or general comments
of treaty bodies. This means that there are few
substantive rights and principles that a resolution
could carry. Of course, resolutions are known to
be a way station to the development of hard international
legal instruments like treaties. But the road
toward hard legalization is known to be long, hard,
and hence uncertain. That makes the resolutions
adopted by the HR Council with limited normative
reach even more precarious. Within the bounds of
the structural limitations of resolutions, the ongoing
discourse stresses the importance of putting human
rights front and center vis-à-vis new and emerging
technologies. This may be considered at three levels.
First, it emphasizes the need to embed human
rights at the conception and design level of such
technologies [40]. Nothing is new about this point.
The past decade has seen a strong case for baking
human rights safeguards in the technical design of
technologies as one way of upholding human rights
in the digital age. This has found sound normative
expression, for instance, in European data protection
law under the principle of " data protection by
design " [41]. By highlighting the virtue of making
human rights part of the early stages of technological
conception and design, what the resolutions usefully
do is make the matter an international concern.
Second, the resolutions call for thorough impact
assessments to be carried out before new technologies
are rolled out [42]. This principle too now
forms part of binding rules in several jurisdictions,
including in European data protection law as well
as emergent AI legislation such as the EU's AI Act
where it is referred to as " conformity assessment "
[43]. What the resolutions tend to do is " internationalize "
this principle. That resolutions are inherently
abbreviated means the scope of this principle is not
spelt out: who would be required or expected to
undertake impact assessment and how would it be
overseen, and by who? Questions of such sort find
no answer in the resolutions. An alternative is that
future international legislation, be it a declaration or
treaty, may elaborate on such principles. If the fragmentary
nature of the discourse thus far is any indication,
the prospect of such a future international
legislation is unlikely.
Third, the resolutions call for adequate safeguards,
including human oversight, once new
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