IEEE Technology and Society Magazine - March 2023 - 62

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operate, on a part-time basis, with limited resources
and frequent reshuffles. What this would mean, in
effect, is that the influence of HR Council resolutions
is bound to be gradual, if not minimal. This thus calls
for measures that are more appropriate to attend
to the exigencies of laying out a universal, human
rights-based framework on the governance of new
and emerging technologies.
That takes us to the second measure needed to
make the discourse more focused. An international
soft law that comprehensively codifies international
best practices on the subject is, perhaps, an apropos
way forward. Resolutions are soft laws too, but what
is being proposed here are soft laws that are structurally
best placed to carry as much normative content
while at the same time enjoying the benefits of legal
softness. A declaration of the UNGA is a good case in
point. At one level, UNGA declarations offer-unlike
resolutions-the space to envisage substantive rights,
principles, and governance norms on human rights
and new technologies. With such rights, principles,
and norms now widely launched at various levels,
perhaps a UNGA is the most pertinent soft law to
project them to a wider global audience. A UNGA
declaration would also sit at a higher normative hierarchy
than a resolution of the HR Council. UN practice
suggests that declarations are instruments that
contain important legal and political principles. An
earlier memo of the UN Office of Legal Affairs issued
in response to a request for clarification by the former
Commission on Human Rights regarding the distinction
between " declaration " and " recommendation "
(i.e., resolution) states as follows [60]:
" In United Nations practice, a declaration' is a
formal and solemn instrument, suitable for rare
occasions when principles of great and lasting
importance are being enunciated, such as the
Declaration of Human Rights. A recommendation
is less formal. ... However, in view of the
greater solemnity of a 'declaration', it may be
considered to impart, on behalf of the organ
adopting it, a strong expectation that members
of the international community will be abide
by it. ... A declaration may by custom become
recognized as laying down rules binding upon
States. " [Emphasis added]
The memo suggests that the underlying distinction
between a declaration and a resolution is that
of value in normative terms. Resolutions generally
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tend to be exhortations while declarations " codify " a
subject matter. A great deal of UNGA resolutions are
mere exhortations rather than articulation of legal
norms. Perhaps, an exception could be made for certain
types of resolutions what Bleicher calls " law-giving
resolutions " [61], which move slightly beyond
mere exhortatory statements on a given event,
action, or inaction. The HR Council resolutions highlighted
above appear to be resolutions of the latter
type. But while these resolutions appear to flag some
principles, and paved the way for further discussion
in the area, they still fall short in adequately addressing
the matter in a comprehensive manner. In part,
this is for the obvious reason that resolutions are not
structurally best placed to be instruments that articulate
legal rights and principles, not to mention institutional
norms. A declaration would, therefore, be a
pertinent instrument to carry forward the aims of the
HR Council resolutions but in a more holistic manner,
and higher normativity. That the declaration
would be adopted by the UNGA further adds to the
normative strength of a UNGA declaration.
But a more particular virtue of the proposed
declaration is that it would provide a universal
framework of reference on digital human rights. As
alluded to at the outset, much of the regulatory initiatives
currently are in the Global North. With the
growing uptake of new and emerging technologies
in the Global South, the need for a human rightsbased
response will inevitably arise. By providing a
universal framework or " model law, " the proposed
declaration would provide the baseline for legislative
and regulatory initiatives for jurisdictions in
the Global South. And, in this respect, the UN and
its bodies should take seriously their unique norm
universalization potential. The ongoing discourse
at the HR Council offers an opportune moment
to tap into this potential and develops an international
soft law that envisages a human rights-based
universal framework on the governance of new and
emerging technologies.

 References
[1] Proposal for a Regulation of the European Parliament
and of the Council Laying Down Harmonized Rules
on Artificial Intelligence (Artificial Intelligence Act)
and Amending Certain Union Legislative Acts, Eur.
Commission, Brussels, Belgium, SEC (2021) 167 Final-
SWD (2021) 84 Final-SWD (2021) 85 Final, 2021.
IEEE Technology and Society Magazine
IEEE Technology and Society Magazine - March 2023

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