Shany: The Case for a New Right to a Human Decision Under International Human Rights Law

Yuval Shany (Hebrew Univ. of Jerusalem - Law ) has posted The Case for a New Right to a Human Decision Under International Human Rights Law. Here's the abstract:

This article discusses the problem of quality control for new human rights from one specific perspective – review and analysis of the actual justifications provided by norm entrepreneurs and law makers seeking to advance the recognition of new human rights through normative instruments (laws, treaties, declarations etc.) – and considers the application of this particular form of quality control to one putative digital human right – the right to a human decision. The quality control criteria presented here for evaluating the justifications proffered for new human rights - moral claims and considerations, problem analysis and broad political support - are mostly descriptive. They identify and explain how new human rights have been de facto justified in the past. They do not propose a new normative approach for how candidate human rights should be justified. In the same vein, the discussion of the right to a human decision explores mostly how such a right has actually been justified, up until now, and whether such a justification comports to the existing pattern of justificatory structures used in international human rights law.

Following these introductory remarks, Part One of the article introduces a possible framework for evaluating new candidate human rights, which is based on review of actual justifications offered in the past in connection with the recognition of new human rights. Arguably, this framework can help us to evaluate and predict whether new candidate rights are ready to attain full legal recognition as international human rights. Part Two evaluates against this framework the potential justifications for the new candidate right to a human decision (or the right not be subject to automated decision making). Part Three concludes.