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A Distinct Right to Freedom of Thought in South America

The Jurisprudence of the Inter-American Court of Human Rights, Neurotechnology and the Application of Bioethics Principles

In: European Journal of Comparative Law and Governance
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  • 1 PhD Fundamental Rights and Warranties, Faculdade de Direito de Vitoria (FDV), Santa Lucia, Vitória, Brazil, claudio@bergi.adv.br
  • | 2 Lecturer in Law, School of Law, Middlesex University London and Dphil candidate, University of Oxford, Oxford, UK, b.shiner@mdx.ac.uk
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Abstract

The right to freedom of thought is guaranteed by Article 13 of the American Convention on Human Rights, yet current jurisprudence interprets the right as a mere dimension of freedom of expression, also protected by Article 13. Contemporary neurotechnology research presents the possibility for human thoughts to be tracked, recorded, analysed and predicted. This applies pressure upon the Inter-American Court of Human Rights’ current understanding of the right to freedom of thought. Firstly, this paper will examine how Article 13 has been interpreted by the Inter-American Court of Human Rights at different stages of its jurisprudence. Secondly, by considering both technological advances and the other rights guaranteed by the Convention, this paper argues for an evolution in the interpretation of Article 13 whereby the right to freedom of thought is understood as a distinct right, separate from freedom of expression. Finally, this paper proposes that the positive duty to secure Convention rights requires States to enact preventative legislation and regulations. Existing bioethics principles should be drawn upon to inform human rights-compliant laws and regulations that require the architectural design of technologies to limit the potential to infringe upon freedom of thought.

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