The Confluence of Human Rights, Technology and National Security in the Light of the Case-Law of the European Court of Human Rights
mohammad behnam, mohammad Hossein zarei
During its activity, the Strasbourg court has tried to take care in the decisions issued while protecting human rights, in order to play an intermediary role in critical situations when the national security of the member countries of the convention is in danger, so as to be on the side of " human rights " and do not ignore the "national security" of governments. However, what makes the care of human rights a challenge is the complex and advanced "communication technologies" that, on the one hand, allow dangerous criminals (domestic and international) to communicate, coordinate, avoid detection, etc.; and on the other hand, such a possibility deems as a threat to countries security and causes to expand their "discretion" and result in marginalize human rights. The question is, how has the Strasbourg court been able to protect human rights while paying attention to the national security concerns of countries in the challenging issue of the intersection of human rights, technology and security In response, It can be said that The court through the submitted cases, on the one hand, has taken care of, so that governments do not abuse advanced technologies to control people's communications and information or violate their privacy, and on the other hand, according to the possibility Abusing the capacity of technology by law-breaking groups, especially cyber attackers and terrorists, the Court has rushed to the aid of the governments and given them Certain Margin of appreciation to interception to protect their national security.1. Introduction
It is obvious that the protection of human rights is the most important application of the European Court of Human Rights, known as the Strasbourg Court, and the Court has tried to protect European human rights with its brilliant performance in numerous cases. Despite this, one of the issues that leads to the functional limitation of the court is the issue of the security of the member states, which in articles (6, 8 to 11) allow them to take necessary measures when "national security" is endangered. and has given them a degree of "discretion" or "margin of Appreciation" to detect the threat and necessary measures to deal with it. One of the important issues facing the Court is the efforts of member states to deal with threats related to their security interests and possible violations of human rights, and the Court has tried to protect human rights against the excesses of countries in various cases. However, in recent years, due to the growth and development of communication technologies, the security threats facing countries have expanded, and the same issue has had an impact on the Court's approach.
Maybe in the past it was obvious that the threat to a country's security is understood in the context of foreign military threats; But the passage of time and the developments that have taken place have changed this mentality and the scope of the threat to the security of a country has become much wider; In such a way that even the United Nations Security Council approved such a development. In Resolution 1308, the Security Council considers the AIDS virus as a possible threat to stability and security if the necessary care is not taken; or in Resolution 2177 considers the unprecedented spread of the Ebola virus in Africa as a threat to international peace and security; And in Resolution 2565, it declares that the unprecedented spread of the COVID-19 virus may endanger the maintenance of international peace and security. However, according to some, such resolutions are more based on desirable rights than existing rights and their recommendatory nature prevails over their mandatory nature. However, with the emergence of new technologies, the scope of fundamental security interests should be expanded to include cyber, communication and information threats, and as the International Court of Justice has also acknowledged, the concept of fundamental security interests is definitely not limited to armed attack but it is beyond that.
Communication technologies is a word that should not be limited to the Internet and its main role should be to facilitate the reception, transmission, storage, processing and collection of information, which means radio, television, satellite transmitters, e-mail, network Social... can also be considered as an example that such characteristics include positive and negative effects. Among the positive effects of technology, we can mention the provision of suitable solutions for various issues, informing people of their rights, guaranteeing human rights claims, informing about human rights violations, etc., and on the other hand, the negative effects of communication technologies; can count the direction of people's ideas and information or the misuse of its capacities by dangerous groups for subversive actions. Therefore, countries have tried to expand their surveillance-interception field so that the misuse of technological capacities does not harm their national security interests.
In this article, we are looking for an answer to the question of how the Court of Strasbourg can protect human rights in the challenging issue of the intersection of human rights, technology and national security. And what effect has technology had on the court's approach? For this purpose, first (in the second paragraph) we will have a reflection on the narrow and strict approach of the Court; In the following (third paragraph) we will examine the modification of the court's procedure under the influence of the development of communication technologies and after that (fourth paragraph) we will evaluate and analyze the court's procedure.
In domestic law, despite the fact that there are a number of articles and books on human rights, technology and national security separately, there is no work that specifically looks at all three categories together, and it has been the same in foreign research. with the difference that in some articles, human rights and national security have been considered in the procedure of the European Court of Human Rights.
2. Methodology
In this research, we tried to collect and gather information from the primary sources (including laws, regulations, directives, bylaws, judicial decisions, etc.) and secondary sources (such as books and articles, theses, research reports, etc.) in scientific research data centers, official and reputable websites, libraries, and similar resources. At first, we will have a reflection on the narrow and strict approach of the Court; In the following, we will examine the modification of the court's procedure under the influence of the development of communication technologies, and after that (Finally) we will evaluate and analyze the court's procedure.
3. Results and Discussion
Communication technology is not limited to information transfer and one of its important applications is to introduce and guide different topics. If we measure such features in the age of technology, along with issues such as the spread of dangerous people and organizations domestically and internationally, we conclude that strengthening the precautionary approach to technology is a necessity for living in today's world.
In the cases where technology, national security and human rights conflict, the court has not forgotten its position to create a balance. In other words, the court takes care of the passing of the cases so that governments do not abuse advanced technologies to control people's communications and information or violate their privacy or their freedom and other human rights, and on the other hand, in the decisions has shown that the court is not indifferent to the sovereignty of countries, and in cases where law-breaking groups, especially the most dangerous ones, i.e. cyber attackers and terrorist groups, may threaten the security of countries by using technology, it rushes to help the governments. And it did not let them use the capacity of technology to achieve sinister goals and hide themselves under the protection of human rights.
In addition, in all cases, the court has maintained its legal-supervisory role regarding the whole case and has carefully evaluated the challenging actions of the government and has repeatedly stated that it is necessary to provide sufficient guarantees by the governments in order for the court to It should be noted that they have used all their efforts to prevent arbitrary behavior as well as abuse of their supervisory capacity through technology. Also, their actions to reach a legitimate goal and within the framework of the convention were necessary for a democratic society.
Therefore, by considering the public interests and interests of the society on the one hand and individual interests and freedoms on the other hand, the court tries to create a balance between the two and issue a decision depending on the case and according to the facts and circumstances of each case; which has provided the protection of human rights and assured the governments of their national security.
4. Conclusions and Future Research
In general, it seems that the Court, unlike some international courts, has tried to adopt a balanced approach and does not have a strict and one-sided view of the protection of human rights and does not forget its duty to fully comply with the provisions of the Convention, which in some articles, care has considered national security as one of the important duties of the member states.
Regulation of industry, trade, and commerce. Occupational law, Islamic law
The Bioethics-CSR Divide
Caio Caesar Dib
Photo by Sean Pollock on Unsplash
ABSTRACT
Bioethics and Corporate Social Responsibility (CSR) were born out of similar concerns, such as the reaction to scandal and the restraint of irresponsible actions by individuals and organizations. However, these fields of knowledge are seldom explored together. This article attempts to explain the motives behind the gap between bioethics and CSR, while arguing that their shared agenda – combined with their contrasting principles and goals – suggests there is potential for fruitful dialogue that enables the actualization of bioethical agendas and provides a direction for CSR in health-related organizations.
INTRODUCTION
Bioethics and Corporate Social Responsibility (CSR) seem to be cut from the same cloth: the concern for human rights and the response to scandal. Both are tools for the governance of organizations, shaping how power flows and decisions are made. They have taken the shape of specialized committees, means of stakeholder inclusion at deliberative forums, compliance programs, and internal processes. It should be surprising, then, that these two fields of study and practice have developed separately, only recently re-approaching one another.
There have been displays of this reconnection both in academic and corporate spaces, with bioethics surfacing as part of the discourse of CSR and compliance initiatives. However, this is still a relatively timid effort. Even though the bioethics-CSR divide presents mostly reasonable explanations for this difficult relationship between the disciplines, current proposals suggest there is much to be gained from a stronger relationship between them.
This article explores the common history of bioethics and corporate social responsibility and identifies their common features and differences. It then explores the dispute of jurisdictions due to professional and academic “pedigree” and incompatibilities in the ideological and teleological spheres as possible causes for the divide. The discussion turns to paths for improving the reflexivity of both disciplines and, therefore, their openness to mutual contributions.
I. Cut Out of the Same Cloth
The earliest record of the word “bioethics” dates back to 1927 as a term that designates one’s ethical responsibility toward not only human beings but other lifeforms as well, such as animals and plants.[1] Based on Kantian ethics, the term was coined as a response to the great prestige science held at its time. It remained largely forgotten until the 1970s, when it resurfaced in the United States[2] as the body of knowledge that can be employed to ensure the responsible pursuit and application of science. The resurgence was prompted by a response to widespread irresponsible attitudes toward science and grounded in a pluralistic perspective of morality.[3] In the second half of the twentieth century, states and the international community assumed the duty to protect human rights, and bioethics became a venue for discussing rights.[4] There is both a semantic gap and a contextual gap between these two iterations, with some of them already being established.
Corporate social responsibility is often attributed to the Berle-Dodd debate. The discussion was characterized by diverging views on the extent of the responsibility of managers.[5] It was later settled as positioning the company, especially the large firm, as an entity whose existence is fomented by the law due to its service to the community. The concept has evolved with time, departing from a largely philanthropic meaning to being ingrained in nearly every aspect of a company’s operations. This includes investments, entrepreneurship models, and its relationship to stakeholders, leading to an increasing operationalization and globalization of the concept.[6]
At first sight, these two movements seem to stem from different contexts. Despite the difference, it is also possible to tell a joint history of bioethics and CSR, with their point of contact being a generalized concern with technological and social changes that surfaced in the sixties. The publishing of Silent Spring in 1962 by Rachel Carson exemplifies this growing concern over the sustainability of the ruling economic growth model of its time by commenting on the effects of large-scale agriculture and the use of pesticides in the population of bees, one of the most relevant pollinators of crops consumed by humans. The book influenced both the author responsible for the coining bioethics in the 1971[7] and early CSR literature.[8] By initiating a debate over the sustainability of economic models, the environmentalist discourse became a precursor to vigorous social movements for civil rights. Bioethics was part of the trend as it would be carried forward by movements such as feminism and the patients’ rights movement.[9]
Bioethics would gradually move from a public discourse centered around the responsible use of science and technology to academic and government spaces.[10] This evolution led to an increasing emphasis on intellectual rigor and governance. The transformation would unravel the effort to take effective action against scandal and turn bioethical discourse into governance practices,[11] such as bioethics and research ethics committees. The publication of the Belmont Report[12] in the aftermath of the Tuskegee Syphilis Experiment, as well as the creation of committees such as the “God Committee,”[13] which aimed to develop and enforce criteria for allocating scarce dialysis machines, exemplify this shift. On the side of CSR, this period represents, at first, a stronger pact between businesses and society due to more stringent environmental and consumer regulations. But afterward, a joint trend emerged: on one side, the deregulation within the context of neoliberalism, and on the other, the operationalization of corporate social responsibility as a response to societal concerns.[14]
The 1990s saw both opportunities and crises that derived from globalization. In the political arena, the end of the Cold War led to an impasse in the discourse concerning human rights,[15] which previously had been split between the defense of civil and political rights on one side and social rights on the other. But at the same time, agendas that were previously restricted territorially became institutionalized on a global scale.[16] Events such as the European Environment Agency (1990), ECO92 in Rio de Janeiro (1992), and the UN Global Compact (2000) are some examples of the globalization of CSR. This process of institutionalization would also mirror a crisis in CSR, given that its voluntarist core would be deemed lackluster due to the lack of corporate accountability. The business and human rights movement sought to produce new binding instruments – usually state-based – that could ensure that businesses would comply with their duties to respect human rights.[17] This rule-creation process has been called legalization: a shift from business standards to norms of varying degrees of obligation, precision, and delegation.[18]
Bioethics has also experienced its own renewed identity in the developed world, perhaps because of its reconnection to public and global health. Global health has been the object of study for centuries under other labels (e.g., the use of tropical medicine to assist colonial expeditions) but it resurfaced in the political agenda recently after the pandemics of AIDS and respiratory diseases.[19] Bioethics has been accused from the inside of ignoring matters beyond the patient-provider relationship,[20] including those related to public health and/or governance. Meanwhile, scholars claimed the need to expand the discourse to global health.[21] In some countries, bioethics developed a tight relationship with public health, such as Brazil,[22] due to its connections to the sanitary reform movement. The United Kingdom has also followed a different path, prioritizing governance practices and the use of pre-established institutions in a more community-oriented approach.[23] The Universal Declaration on Bioethics and Rights followed this shift toward a social dimension of bioethics despite being subject to criticism due to its human rights-based approach in a field characterized by ethical pluralism.[24]
This scenario suggests bioethics and CSR have developed out of similar concerns: the protection of human rights and concerns over responsible development – be it economic, scientific, or technological. However, the interaction between these two fields (as well as business and human rights) is fairly recent both in academic and business settings. There might be a divide between these fields and their practitioners.
II. A Tale of Jurisdictions
It can be argued that CSR and business and human rights did not face jurisdictional disputes. These fields owe much of their longevity to their roots in institutional economics, whose debates, such as the Berle-Dodd debate, were based on interdisciplinary dialogue and the abandonment of sectorial divisions and public-private dichotomies.[25] There was opposition to this approach to the role of companies in society that could have implications for CSR’s interdisciplinarity, such as the understanding that corporate activities should be restricted to profit maximization.[26] Yet, those were often oppositions to CSR or business and human rights themselves.
The birth of bioethics in the USA can be traced back to jurisdictional disputes over the realm of medicine and life sciences.[27] The dispute unfolded between representatives of science and those of “society’s conscience,” whether through bioethics as a form of applied ethics or other areas of knowledge such as theology.[28] Amid the civil rights movements, outsiders would gain access to the social sphere of medicine, simultaneously bringing it to the public debate and emphasizing the decision-making process as the center of the medical practice.[29] This led to the emergence of the bioethicist as a professional whose background in philosophy, theology, or social sciences deemed the bioethicist qualified to speak on behalf of the social consciousness. In other locations this interaction would play out differently: whether as an investigation of philosophically implied issues, a communal effort with professional institutions to enhance decision-making capability, or a concern with access to healthcare.[30] In these situations, the emergence and regulation of bioethics would be way less rooted in disputes over jurisdictions.
This contentious birth of bioethics would have several implications, most related to where the bioethicist belongs. After the civil rights movements subsided, bioethics moved from the public sphere into an ivory tower: intellectual, secular, and isolated. The scope of the bioethicist would be increasingly limited to the spaces of academia and hospitals, where it would be narrowed to the clinical environment.[31] This would become the comfort zone of professionals, much to the detriment of social concerns. This scenario was convenient to social groups that sought to affirm their protagonism in the public arena, with conservative and progressive movements alike questioning the legitimacy of bioethics in the political discourse.[32]
Even within the walls of hospitals and clinics, bioethics would not be excused from criticism. Afterall, the work of bioethicists is often unregulated and lacks the same kind of accountability that doctors and lawyers have. Then, is there a role to be played by the bioethicist?
This trend of isolation leads to a plausible explanation for why bioethics did not develop an extensive collaboration with corporate social responsibility nor with business and human rights. Despite stemming from similar agendas, bioethics’ orientation towards the private sphere resulted in a limited perspective on the broader implications of its decisions.
This existential crisis of the discipline led to a re-evaluation of its nature and purpose. Its relevance has been reaffirmed due to the epistemic advantage of philosophy when engaging normative issues. Proper training enables the bioethicist to avoid falling into traps of subjectivism or moralism, which are unable to address the complexity of decision-making. It also prevents the naïve seduction of “scientifying” ethics.[33] This is the starting point of a multitude of roles that can be attributed to the bioethicists.
There are three main responsibilities that fall under bioethics: (i) activism in biopolicy, through the engagement in the creation of laws, jurisprudence, and public policies; (ii) the exercise of bioethics expertise, be it through the specialized knowledge in philosophical thought, its ability to juggle multiple languages related to various disciplines related to bioethics, or its capacity to combat and avoid misinformation and epistemic distortion; (iii) and, intellectual exchange, by exercising awareness that it is necessary to work with specialists from different backgrounds to achieve its goals.[34]
All of those suggest the need for bioethics to improve its dialogue with CSR and business and human rights. Both CSR and business and human rights have been the arena of political disputes over the role of regulations and corporations themselves, and the absence of strong stances by bioethicists risks deepening their exclusion from the public arena. Furthermore, CSR and business and human rights are at the forefront of contemporary issues, such as the limits to sustainable development and appropriate governance structures, which may lead to the acceptance of values and accomplishment of goals cherished by bioethics. However, a gap in identifying the role and nature of bioethics and CSR may also be an obstacle for bridging the chasm between bioethics and CSR.
III. From Substance to Form: Philosophical Groundings of CSR and Bioethics
As mentioned earlier, CSR is, to some extent, a byproduct of institutionalism. Institutional economics has a philosophical footprint in the pragmatic tradition[35], which has implications for the purpose of the movement and the typical course of the debate. The effectiveness of regulatory measures is often at the center of CSR and business and human rights debates: whatever the regulatory proposal may be, compliance, feasibility, and effectiveness are the kernel of the discussion. The axiological foundation is often the protection of human rights. But discussions over the prioritization of some human rights over others or the specific characteristics of the community to be protected are often neglected.[36] It is worth reinforcing that adopting human rights as an ethical standard presents problems to bioethics, given its grounding in the recognition of ethical pluralism.
Pragmatism adopts an anti-essentialist view, arguing that concepts derive from their practical consequences instead of aprioristic elements.[37] Therefore, truth is transitory and context dependent. Pragmatism embraces a form of moral relativism and may find itself in an impasse in the context of political economy and policymaking due to its tendency to be stuck between the preservation of the status quo and the defense of a technocratic perspective, which sees technical and scientific progress as the solution to many of society’s issues.[38]
These characteristics mean that bioethics has a complicated relationship with pragmatism. Indeed, there are connections between pragmatism and the bioethics discourse. Both can be traced back to American naturalism.[39] The early effort in bioethics to make it ecumenical, thus building on a common but transitory morality,[40] sounds pragmatic. Therefore, scholars suggest that bioethics should rely on pragmatism's perks and characteristics to develop solutions to new ethical challenges that emerge from scientific and technological progress.
Nonetheless, ethical relativism is a problem for bioethics when it bleeds from a metaethical level into the subject matters themselves. After all, the whole point of bioethics is either descriptive, where it seeks to understand social values and conditions that pertain to its scope, or normative, where it investigates what should be done in matters related to medicine, life sciences, and social and technological change. It is a “knowledge of how to use knowledge.”
Therefore, bioethics is a product of disillusionment regarding science and technology's capacity to produce exclusively good consequences. It was built around an opposition to ethical relativism—even though the field is aware of the particularity of its answers. This is true not only for the scholarly arena, where the objective is to produce ethically sound answers but also for bioethics governance, where relativism may induce decision paralysis or open the way to points of view disconnected from facts.[41]
But there might be a point for more pragmatic bioethics. Bioethics has become an increasingly public enterprise which seeks political persuasion and impact in the regulatory sphere. When bioethics is seen as an enterprise, achieving social transformation is its main goal. In this sense, pragmatism can provide critical tools to identify idiosyncrasies in regulation that prove change is needed. An example of how this may play out is the abortion rights movement in the global south.[42] Despite barriers to accessing safe abortion, this movement came up with creative solutions and a public discourse focused on the consequences of its criminalization rather than its moral aspects.
IV. Bridging the Divide: Connections Between Bioethics and CSR
There have been attempts to bring bioethics and CSR closer to each other. Corporate responsibility can be a supplementary strategy for achieving the goals of bioethics. The International Bioethics Committee (IBC), an institution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), highlights the concept that social responsibility regarding health falls under the provisions of the Universal Declaration on Bioethics and Human Rights (UDBHR). It is a means of achieving good health (complete physical, mental, and social well-being) through social development.[43] Thus, it plays out as a condition for actualizing the goals dear to bioethics and general ethical standards,[44] such as autonomy and awareness of the social consequences of an organization’s governance. On this same note, CSR is a complementary resource for healthcare organizations that already have embedded bioethics into their operations[45] as a way of looking at the social impact of their practices.
And bioethics is also an asset of CSR. Bioethics can inform the necessary conditions for healthcare institutions achieving a positive social impact. When taken at face value, bioethics may offer guidelines for ethical and socially responsible behavior in the industry, instructing how these should play out in a particular context such as in research, and access to health.[46] When considering the relevance of rewarding mechanisms,[47] bioethics can guide the establishment of certification measures to restore lost trust in the pharmaceutical sector.[48] Furthermore, recognizing that the choice is a more complex matter than the maximization of utility can offer a nuanced perspective on how organizations dealing with existentially relevant choices understand their stakeholders.[49] However, all of those proposals might come with the challenge of proving that something can be gained from its addition to self-regulatory practices[50] within the scope of a dominant rights-based approach to CSR and global and corporate law.
It is evident that there is room for further collaboration between bioethics and CSR. Embedding either into the corporate governance practices of an organization tends to be connected to promoting the other.[51] While there are some incompatibilities, organizations should try to overcome them and take advantage of the synergies and similarities.
CONCLUSION
Despite their common interests and shared history, bioethics and corporate social responsibility have not produced a mature exchange. Jurisdictional issues and foundational incompatibilities have prevented a joint effort to establish a model of social responsibility that addresses issues particular to the healthcare sector.
Both bioethics and CSR should acknowledge that they hold two different pieces of a cognitive competence necessary for that task: CSR offers experience on how to turn corporate ethical obligations operational, while bioethics provides access to the prevailing practical and philosophical problem-solving tools in healthcare that were born out of social movements. Reconciling bioethics and CSR calls for greater efforts to comprehend and incorporate the social knowledge developed by each field reflexively[52] while understanding their insights are relevant to achieving some common goals.
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[46]The Biopharmaceutical Bioethics Working Group et al., “Considerations for Applying Bioethics Norms to a Biopharmaceutical Industry Setting,” BMC Medical Ethics 22, no. 1 (December 2021): 31–41, https://doi.org/10.1186/s12910-021-00600-y.
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[52] Teubner argues that social spheres tend to develop solutions autonomously, but one sphere interfering in the way other spheres govern themselves tends to result in ineffective regulation and demobilization of their autonomous rule-making capabilities. These spheres should develop “reflexion mechanisms” that enable the exchange of their social knowledge and provide effective, non-damaging solutions to social issues. See Gunther Teubner, “Substantive and Reflexive Elements in Modern Law,” Law & Society Review 17, no. 2 (1983): 239–85, https://doi.org/10.2307/3053348.
Medical philosophy. Medical ethics, Ethics