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Law and the Inner Self: The Right to Freedom of Thought

The importance of freedom of thought is regularly emphasized in political discourse. Yet, the right to freedom of thought remains one of the least explored rights in international human rights law. In 2021, however, the then United Nations Special Rapporteur on Freedom of Religion or Belief produced the first significant UN-level report on the right. This ground-breaking report has attracted scholarly interest (see, for example, Ligthart et al (2022)) and will likely play a pivotal role in shaping policy-makers' and practitioners' understanding of this 'forgotten freedom', especially in the context of socio-technological developments.

In 2022, Simon McCarthy-Jones (Trinity College Dublin) and Patrick O'Callaghan (LAWINSEL Project PI) coordinated an interdisciplinary review of the Special Rapporteur's report in work that was funded by the Irish Research Council. Collaborating with Olga Cronin (Irish Council for Civil Liberties), Brendan Kelly (Trinity College Dublin), Bethany Shiner (Middlesex University London) and Joel Walmsley (University College Cork), we examined the Special Rapporteur's report, organising our analysis under four broad headings: (1) neglect of the right, (2) attributes of the right, (3) violations of the right and (4) recommendations. To help us develop our analysis, we used discussion prompts under each heading as follows:

1. Neglect: The Special Rapporteur states that the right to freedom of thought has received ‘scant attention in jurisprudence, legislation and scholarship, international and otherwise.’

Discussion Prompts: If the right is so important, why has it received such scant attention? Has the right not been perceived as being threatened to date? Do other rights such as the right to freedom of expression or privacy safeguard the interests at stake? Are there other explanations?

2. Attributes: The Special Rapporteur proposes four attributes of the right: (a) freedom not to disclose one’s thoughts; (b) freedom from punishment for one’s thoughts; (c) freedom from impermissible alteration of one’s thoughts; and (d) an enabling environment for freedom of thought.

Discussion Prompts: Is this convincing and sufficiently comprehensive? Or can freedom of thought be conceptualised in other ways? Do we even have a rigorous shared understanding of what we mean by ‘thought’?

3. Violations: The Special Rapporteur examines potential violations of freedom of thought in seven ‘diverse fields’: (a) torture or cruel, inhuman or degrading treatment or punishment; (b) surveillance; (c) coercive proselytism; (d) anti-conversion and anti-blasphemy efforts; (e) intellectual freedom and education; (f) existing and emerging technologies; (g) mental health; (h) conversion practices.

Discussion Prompts: Is the Special Rapporteur correct to identify these fields as warranting special attention? To what extent is freedom of thought currently threatened in these fields?

4. Recommendations: The Special Rapporteur makes several recommendations to multilateral, State and non-State actors on how to ‘respect, protect and fulfil freedom of thought’.

Discussion Prompts: Are these recommendations worthwhile? Are there any other practical ways to ensure better protection of freedom of thought?

Our reflections have recently been published in a paper in The International Journal of Human Rights. On the the reasons for the neglect of the right to freedom of thought, we discuss whether the right has traditionally been viewed as more symbolic than practical. In addition, we query whether there is a conventional view that the interests in question are adequately protected by other rights.

On the attributes of the right, we question whether a bright line can be drawn between the so-called forum externum and the forum internum. We follow with a discussion of violations of the right, focusing on the mental health context. Finally, we assess the report's recommendations and conclude that there is real potential that at least some recommendations can be realised in the context of human rights-informed legislative developments in the EU, namely the Digital Services Act and the proposal for an AI Act.

You can read the paper in full here.

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