Dual Use: the Same Technology Both Ways

Read paragraphs 6 to 8 together and the structure of the whole subject is visible: extend the benefits, prevent the harms, and do both by law.

The Covenant carries the same idea through its limitation clause rather than in terms. Article 15(1)(b) gives the right to enjoy the benefits. Article 4 permits limitations, and General Comment 25 applies it to science.

The limitation test

General Comment 25 is explicit that limits on this right may be necessary, because science and its applications can in certain contexts affect economic, social and cultural rights. Any limitation must satisfy article 4 of the Covenant:

1. It must be determined by law.
2. It must promote the general welfare in a democratic society.
3. It must be compatible with the nature of the right restricted.

The Committee reads the third requirement as importing two further constraints: limitations must respect the minimum core obligations of the right, and they must be proportionate to the aim pursued. Where several means are reasonably capable of achieving the legitimate aim, the least restrictive must be selected, and the burdens imposed on enjoyment of the right should not outweigh the benefits of the limitation.

Paragraph 22 then distinguishes three kinds of limit, and the distinction is the most useful thing in the chapter:

That last row is the point at which the framework refuses to let dual use become an excuse. A State may regulate what is done with knowledge far more readily than it may forbid the acquisition of knowledge.

Worked example

A university group develops a method for reconstructing a person's approximate facial appearance from a DNA sample. Two applications follow at once. A police force wants it to generate a likeness of an unknown suspect from material at a scene. A humanitarian organisation wants it to help identify the dead after a disaster so families can be informed.

One technology, two uses. There is no separate humanitarian version. The same method, the same reference database, the same laboratory.

Which rights are engaged, on each side? For the humanitarian use: the families' interest in knowing the fate of a relative, and the dignity of the dead. For the police use: the presumption of innocence, privacy, and equality, since the method's error characteristics will not be uniform across populations and a likeness that is systematically wrong for one group produces investigations that fall unequally.

Apply the limitation test to a proposal to permit the police use. Is it determined by law, or is it an operational decision taken inside a police force? Does it pursue a legitimate aim? Is it proportionate: is there a less restrictive means reasonably capable of achieving the same aim, and does the burden on the persons wrongly implicated outweigh the investigative benefit?

Note which limb of paragraph 22 is engaged. A rule restricting the police use limits an application, which is ordinary regulation. A rule forbidding the university from publishing the method limits the content of research, which carries a strict burden of justification. A candidate who treats those two as the same restriction has missed the distinction the Comment draws.

And the other direction. If the technique is dependable for identifying the dead and the State declines to make it available after a disaster, the complaint is not about misuse at all. It is a failure to extend the benefit, contrary to paragraph 6 of the 1975 Declaration and article 15(1)(b).

What it does NOT mean

It does not mean that every technology is neutral. Neutrality is a claim about moral responsibility and it is usually made by people who would rather not accept any. Dual use is a claim about capability: the same capability can serve either end. Where a technology has a single realistic use and that use is the infliction of harm, calling it dual use is an evasion, and the treatment of weapons in [Weapons, Warfare and the Right to Life] proceeds on that footing.

It does not mean the two directions are equally likely. Which use predominates is a question of fact about incentives, cost and who owns the technology, and the answer is often not evenly balanced. Saying "it can be used well or badly" and stopping there is the weakest available answer.

It is not a reason to refuse to regulate. The argument that a rule is pointless because the knowledge is already public confuses knowledge with application, and paragraph 22 keeps them apart precisely so that the first is not used as an excuse about the second.

It is not a reason to suppress research either. The strict burden of justification on limiting the content of research is there to stop dual use becoming a general licence for prohibition.

Limits and criticism

The framework tells you what questions to ask and not what answers to give. Whether a particular surveillance capability is proportionate is not settled by article 4; it is argued under it. That is a fair criticism of the whole limitation structure and it applies here.

The harder criticism is one of timing. Dual use is most easily managed early, when a technology is expensive and few people have it, and that is exactly when its harmful uses are hardest to foresee. By the time the harm is obvious the capability is cheap and widespread and the regulatory moment has passed. The 1975 Declaration's insistence in paragraphs 7 and 8 on legislative measures reads, in that light, as a demand that States act before they are certain, which is the same instinct as the precautionary principle discussed in [The Precautionary Principle].

Quick revision

• Dual use: one body of knowledge or one technique both advances rights and defeats them, so the analysis must be of a use by an actor in a setting, never of the technology in the abstract.
• A State can breach the right in either direction: by allowing harmful use, and by withholding a benefit.
• 1975 Declaration: paragraph 1 the beneficial direction; paragraph 2 prevent use, particularly by State organs, to limit or interfere with rights; paragraph 6 both directions in one sentence, naming privacy and physical and intellectual integrity; paragraphs 7 and 8 require measures including legislative measures.
• ICESCR article 4 governs limitations: determined by law; promoting the general welfare in a democratic society; compatible with the nature of the right. The Committee adds respect for the minimum core and proportionality, with the least restrictive means and a weighing of burdens against benefits.
• General Comment 25, paragraph 22 distinguishes limits on applications (safety and quality, human rights impact assessments), on the research process (dignity, integrity, consent; the State of origin's duty where research is done among other populations), and on the content of research, which carries a strict burden of justification.

Test yourself

1. Define dual use and explain why it prevents a rights analysis being done on a technology in the abstract. Dual use is the property by which a single body of scientific knowledge, or a technique or device derived from it, is capable both of advancing the enjoyment of human rights and of being used to defeat them. It prevents analysis in the abstract because the same capability yields opposite conclusions depending on who exercises it, against whom, for what purpose and with what safeguards. A question framed as whether a technology is compatible with human rights therefore has no answer; the answerable question is whether a particular use by a particular actor, with the safeguards proposed, satisfies the limitation test.

2. Show how the 1975 Declaration contains both directions, citing paragraphs. Paragraph 1 requires States to promote international co-operation so that the results of scientific and technological developments are used for peace and security, for economic and social development and for the realisation of human rights. Paragraph 2 requires appropriate measures to prevent the use of such developments, particularly by State organs, to limit or interfere with the enjoyment of human rights. Paragraph 6 states both together, requiring States to extend the benefits of science and technology to all strata of the population and to protect them from the harmful effects of misuse, with particular regard to privacy and the physical and intellectual integrity of the person. Paragraphs 7 and 8 then require measures, including legislative measures, to secure the beneficial use without discrimination and to prevent detrimental use.

3. Set out the three requirements of article 4 of the Covenant and the two constraints the Committee reads into the third. A limitation must be determined by law; it must promote the general welfare in a democratic society; and it must be compatible with the nature of the right restricted. The Committee reads the third as requiring, first, that limitations respect the minimum core obligations of the right, and second, that they be proportionate to the aim pursued, which means that where several means are reasonably capable of achieving the legitimate aim the least restrictive to economic, social and cultural rights must be chosen, and that the burdens imposed on enjoyment must not outweigh the benefits of the limitation.

4. A government proposes both to prohibit the sale of a genetic testing kit and to prohibit publication of the method by which it works. Are the two proposals assessed alike? No. The first limits an application of science, which paragraph 22 treats as ordinary regulation available to guarantee the safety and quality of products used by persons, and for which human rights impact assessments may be appropriate. The second limits the content of scientific research, which the same paragraph says implies a strict burden of justification by the State in order to avoid infringing freedom of research. Both must satisfy article 4, but the second faces a materially heavier justification, because the framework guards the acquisition of knowledge more jealously than its commercial application.

5. Why is the claim that a technology is "neutral" not the same as the claim that it is dual use, and when does the neutrality claim fail? Dual use is a statement about capability, that the same means can serve opposite ends. Neutrality is a statement about responsibility, that the person who supplies the means bears none for what is done with them, and it does not follow from dual use. The neutrality claim fails wherever a technology has one realistic use and that use is the infliction of harm, since there is then no second direction to point to; it also fails wherever the supplier knows the use to which the capability will in fact be put, because the duty to protect under the 1975 Declaration's paragraphs 2 and 8 is engaged by foreseeable misuse and not only by intended misuse.