Relationship between human rights and technical standards explored in report by Office of UN High Commissioner for Human Rights

The Office of the United Nations High Commissioner for Human Rights (OHCHR) has released an advanced version of its report on the relationship between human rights and technical standard-setting processes for new and emerging digital technologies. The report was prepared in response to a request made by the Human Rights Council in its resolution 47/23 and it reflects the outcomes of an expert consultation hosted in Geneva in February 2023 and responses received to a call for inputs issued by the OHCHR.

The report, which is included on the agenda of the 53th session of the Human Rights Council (19 June–14 July 2023), notes that ‘many of the decisions made in the [standard] development process have crucial ramifications for human rights. Design decisions can lead to technical solutions that facilitate human rights violations and abuses, but they can also lay the foundations for widespread adoption of technologies that effectively enhance and enable the exercise of human rights’. It further outlines human rights obligations that states and other relevant actors have when it comes to their participation in the development of technical standards. For instance, ‘when contributing to standard-setting processes, states should take necessary steps, in good faith and meaningful fashion, to actively promote human rights and ensure that their proposals be in compliance with international human rights law.’ Moreover, ‘businesses should carefully consider how proposed standards to which they are contributing would cause or contribute to adverse human rights impacts’.

The report includes a section dedicated to exploring challenges to integrating human rights considerations in technical standard-setting processes. Some of these challenges include: no clear commitment from most standard-setting organisations (SSOs) to put human rights at the core of their activities; a lack of systematic monitoring of the human rights impacts of standards, once they are adopted; an apparent opposition by some stakeholders and SSOs to the integration of human rights considerations into standard-setting processes for different reasons; little diversity among participants in standard-setting processes in terms of thematic expertise, cultural, professional, institutional, socio-economic background, geographical representation, and gender; and challenges related to the costs of participation in standard-development and access to working documents, proposed and adopted standards, meeting minutes, etc.

Building on these and other findings, the report outlines a series of recommendations for member states, SSOs, businesses, and civil society, as follows:

• Member states are invited to:
  • Refrain from and prevent the development of standards that could foreseeably facilitate human rights violations and abuses.
  • Conduct meaningful consultations with all stakeholders to gain a comprehensive picture of the issues at stake, and include human rights experts in their delegations.
  • Ensure that national SSOs are open, transparent, and inclusive.
  • When delegating regulatory functions to SSOs, ensure that this is done in compliance with states’ human rights obligations.
  • Support civil society to develop the capacity to meaningfully participate in standard-setting processes.
• SSOs are invited to:
  • Assess how their operations affect the enjoyment of human rights, identify possible shortcomings, and take action to improve the integration of human rights considerations into their practices.
  • Adopt policy commitments to respect human rights in their operations.
  • Put in place human rights due diligence processes to identify, prevent, mitigate, and account for adverse human rights impacts.
  • Make standard-setting processes as transparent, open, and inclusive as possible.
  • Take proactive steps to facilitate and increase participation by women, experts, and stakeholders from underrepresented backgrounds.
  • Carry out effective public consultations and reach out to experts, groups, and individuals who may be affected by the standards they develop.
  • Collect and publish data about participation patterns in their standard-setting processes.
• Businesses are invited to:
  • Fully meet their responsibility to respect human rights and strive for coherence of their engagement in standard-setting processes and their commitment to human rights.
  • Conduct human rights due diligence regarding their participation in standard-setting processes and the resulting standards.
  • When implementing technical standards, do so in the most rights-respecting way possible.
• Civil society is encouraged to:
  • Expand understanding and capacity necessary to enhance participation in standard-setting processes.
  • Establish mechanisms for information sharing about ongoing and forthcoming standard-setting processes of relevance for human rights.