Robot Rights, Activism, International Law, Homo Sapien-Human Distinction
Note: As the author is training in England, the specific offences and cases being discussed are those relevant to English and Welsh law. Although the fundamental theories and principles being referred to have force across jurisdictions, the law elsewhere may vary. Nor is this article to be taken as valid legal advice. Those seeking legal counsel on the matter should seek out a qualified legal professional.
Understandably, some of my readers are probably frustrated. I’ve created a blog called 'Artificially Legal,' yet so far, I’ve failed to write too many articles about the law. Apart from my first post on Roman Law, much of my posts have been about philosophy or sociology. Even Metalaw is jurisprudence, not substantive law. A lot of regulations exist to reflect social attitudes, but even still, throwing in the occasional piece on criminal or tort law would be nice. Today, I seek to remedy that flaw. This article will be the first in a series I plan to write on the Universal Declaration of Human Rights. Nobody can argue that writing about a UN treaty is not lawyery enough. For those of you that don’t know, the UDHR is the closest thing we have to a universal baseline for human rights. Almost every country in the world has signed it, and the document has inspired many more recent treaties (I’m looking at you European Convention on Human Rights). Sufficient to say, anything covered by the UDHR can expect a minimal level of rights protection wherever it goes. But what if I was to tell you that the UDHR did more than what most people think. What if I told you it could make robot rights universal.
Yes, I do recognise the irony of supporting robotic rights using a treaty that literally has the word ‘human’ in the title. One way around the problem is to accept my homo sapien-human distinction. ‘Human’ is a term describing a human being rather than being restricted to homo sapiens, meaning that anything which possesses humanity is covered. If a lawyer has no other option, it’s worth them at least trying that interpretation. Chances are it won’t work (I myself take it to be more of a sociological divide than anything) but it’s worth a shot. Seeing as the treaty’s whole point is to protect rights, a broad interpretation isn’t entirely out of the question. Still, the gamble would be too risky for my taste. Instead, I prefer an argument that’s a little more concrete. For that, Article 6 holds the key. Let’s have a look.
Everyone has the right to recognition everywhere as a person before the law.
Article 6, Universal Declaration of Human Rights, 1998
The first thing that’s probably clear is that the word ‘human’ isn’t mentioned anywhere. There’s talk of ‘everyone’ and ‘person’ but nowhere in the UDHR is it stated these terms are restricted to humans. That means the whole problem of interpreting what we mean by ‘human’ goes out the window. Instead, the focus is on personhood, a term much easier to define. To be a person in the legal sense, you simply need to be recognised to have a legal personality. In effect, what Article 6 is doing is ensuring that if one country recognises me as a person, every other country has to do the same. That's what I mean by ‘unilateral personhood’. My rights in say English law force the French, as a matter of international law, to recognise me as a person. Initially, it existed to stop a repeat of the slave trade. Individuals living in one country are recognised by their governments as being people so slavers cannot simply come and kidnap them before taking them to a country with different laws, say laws that see those same individuals as being property.
As commendable as that original purpose is, I’m more interested in the side effects of Article 6. Specifically, the way it's phrased means that only one country needs to recognise somebody as being a person before all other countries have to agree, That means the fight for robot rights has just become a whole lot easier. We don’t have to convince every country on the planet to change their ways— we only have to convince one. Talk about the ultimate domino effect.
An example can best demonstrate what I’m suggesting. Imagine that a country decides to give a robot rights. By providing that robot citizenship, it becomes a person. Excited by the news, journalists in the neighbouring State want to interview the robot— after all, they're the first mechanical person ever to exist. So the journalists have the robot come across the border so they can go on a morning talk show. Whilst there, the local government decide they want to take the robot for themselves, so they pass a law seizing possession of the robot. As they don’t recognise the robot’s rights, it's a simple confiscation order. Except according to Article 6, they can’t do that. As a matter of international law, “Everyone has the right to recognition everywhere as a person before the law.” The robot has personhood somewhere meaning that their rights should be recognised everywhere. So the confiscation order breaches international law because it treats the robot as property, when in fact they are a person.
“But Toby, this hypothetical situation is way too unrealistic. There’s no way that an argument like this would ever have to be made in real life.” That’s a perfectly valid response. Looking at the law in practice is essential. Except your premise is wrong. Nothing in the example is unrealistic at all. My inspiration for the example was a set of events that have already happened. Chances are that if you read this blog, you know about SOPHIA, the robot who was given citizenship by Saudi Arabia. Some of you, specifically British readers, may also know that she (they?) came to the UK to give a series of interviews, going even as far to appear on Good Morning Britain. That means so far I’m two for two. A robot, who had recognised legal rights in one country, went to another country that does not recognise those rights at a domestic level. From there, I did have to invent a small fiction. For my argument to be of any use at international law, the UK government would have had to act inconsistently with SOPHIA’s Article 6 rights whilst she was still on British soil. I say Article 6 rights specifically because whilst I could rely on other rights, like Article 3 right to life, this involves a whole other pile of definitional issues like what counts as ‘life’ that just muddy the water. Seeing as how I aim to keep things simple stupid, sticking with a right we’ve already established is just easier.
So how could the UK government have breached the A6 rights of SOPHIA or our hypothetical robot? The answer is simple—court standing. Now, the Rule of Law is a fundamental feature of the British constitution. Section 1(a) Constitutional Reform Act 2005 explicitly refers to “the existing constitutional principle of the rule of law”. Moreover, at paragraph 66 in Unison Lord Reed affirmed “the constitutional right of access to the courts is inherent in the rule of law.” Why does this matter. Because court standing, that is the ability to bring legal proceedings in a court of law is essential in recognising a person before the law. One of the quirks in British law is that many of our institutions don’t have legal personalities. In the UK, for example, we have a Cabinet. That Cabinet runs our Executive branch, being made up of the PM and senior Ministers. However, the Cabinet does not exist as an independent entity at law. Instead, English law views the Cabinet as an extension of ‘the Crown’. Therefore, in the unlikely event that the Cabinet specifically wanted to bring a legal claim, they would not have legal standing; the claim would have to be brought by ‘The Crown’ itself.
SOPHIA could well have been in the same position in English law. Seeing as I have no knowledge of immigration or visa laws in the UK, I cannot be entirely sure. Still, it seems likely that there is no provision which conferred legal personification on SOPHIA whilst she was in the country. The matter would really depend on the wording of the provision. Saying that “all foreign nationals judicial standing within the UK” would probably be sufficient to cover a robot with citizenship. If on the other hand, the subject is a matter of Common-Law, then the issue is slightly more complicated.
For current purposes, I’ll presume SOPHIA wouldn’t have standing in English courts. That means that if a car hit her whilst she was walking to the television studio, she wouldn’t be able to claim under the tort of battery even if all the required elements were present. Because she has no standing, no legal personification, the courts won’t even recognise she exists. That means whoever hit her would get away scot-free.
The UDHR would not alter the result as a matter of domestic law. International law concerns obligations into by States— it has no bearing on the domestic laws of a State. It's like the way British citizens have to claim under the Human Rights Act rather European Convention on Human Right. If you want to know more about the difference, comparing horizontal and vertical effect in EU law is a good place to start, something I won’t go into here. Sufficient to say, even though Article 6 means SOPHIA should be able to bring a claim, domestic law means she can’t because English domestic law doesn’t recognise the UDHR as a source of domestic rights. So the treaty’s pointless? Well no. SOPHIA cannot bring a claim against whoever hit her. What she can do is bring a claim against the UK government for infringing her A6 right to legal recognition. As SOPHIA is a citizen of Saudi Arabia, with legal personhood in that jurisdiction, Article 6 requires that all other signatories of the UDHR recognise her as a matter of law. “Everyone has the right to recognition everywhere as a person before the law.”
Taking that point to its logical conclusion, that means securing robotic rights should be fairly straightforward. Saudi Arabia recognises SOPHIA as a person. That means all SOPHIA needs is some type of dispute in the courts of another country. When that country denies her claim due to a lack of standing, she then argues a breach of Article 6 UDHR. On the literal meaning of the text, the courts should have recognised her as a person meaning that to fulfil their international obligations, the country would have to change their domestic law. Bish-bash-bosh and at the very least you have one robot with guaranteed rights. It could be as simple as having SOPHIA enter into a mass of defective but pointless contracts, all governed by the laws of a different contract. So long as there was some dispute she could seek standing for, and the courts won’t recognise her claim, Article 6 will have been infringed.
Slight problem. Saudi Arabia never signed the UDHR. Seriously. The one country where a robot has citizenship, the one place that could make this work hasn’t signed the necessary treaty. As far as international law is concerned, that means that SOPHIA is not included in the ‘everybody’ category. Who Saudi Arabia considers having legal personhood is irrelevant unless the law of a signatory State corroborates it. Usually, that’s not a problem because human beings have rights at least somewhere, but when you’re a robot who’s personhood is recognised by only that one nation, you’re just pot out of luck. We’ve hit a roadblock. For all my attempts at creative logic, I can’t think of a way out of this one. The pieces are entirely out of my control.
There are two solutions. Another country could give a robot citizenship. So long as they’ve also signed the UDHR, then we’re golden. Bring on the domino effect. Otherwise, Saudi Arabia, a country that has previously sat on the UN Human Rights Council, could sign the damn treaty already. Either way, it really is one country to decide it all.