Applicability of human rights control mechanisms in algorithmic decision-making cases

AutorDominika Iwan
CargoPhD e Professora assistente da Universidade da Silésia em Katowice, Polônia. Pesquisa se concentra no Direito Internacional Público, Direito Internacional Humanitário e Direito Internacional dos Direitos Humanos em particular.
Páginas269-291
Rev. direitos fundam. democ., v. 26, n. 2, p. 269-291 mai./ago. 2021.
DOI: 10.25192/issn.1982-0496.rdfd.v26i22286
ISSN 1982-0496
Licenciado sob uma Licença Creative Commons
APPLICABILITY OF HUMAN RIGHTS CONTROL MECHANISMS IN
ALGORITHMIC DECISION-MAKING CASES
APLICABILIDADE DOS MECANISMOS DE CONTROLE DOS DIREITOS
HUMANOS EM CASOS DE TOMADA DE DECISÕES POR ALGORITMOS.
Dominika Iwan
PhD e Professora assistente da Universidade da Silésia em Katowice, Polônia. Pesquisa se
concentra no Direito Internacional Público, Direito Internacional Humanitário e Direito
Internacional dos Direitos Humanos em particular.
ABSTRACT
A The purpose of this paper is to address impacts of algorithmic
decision-making (hereinafter: ADM) on human rights by means of
human rights control mechanisms. The fundamental research question
with respect to intersection between ADM and human rights
compliance is whether ADM-related human rights violations can be
addressed by any of the human rights control mechanisms. Existing
human rights treaties were adopted in a pre-digital era but nowadays
human rights exist online even more than offline. In this sphere, there
is a difference in state obligations and business responsibilities while
deploying ADM tools. Whereas states are at the frontline of respecting,
protecting and fulfilling their human rights obligations, private entities
are seemed to be free to develop and use ADM for their commercial
purposes. As a result, ADM-related human rights implications do not
exist in vacuum. International human rights law, both universal and
regional, have resources to address some breaches resulting from
ADM.
270
DOMINIKA IWAN
Revista de Direitos Fundamentais & Democracia, Curitiba, v. 26, n. 2, p.269-291, mai./ago., de 2021.
1. INTRODUCTION
The paper seeks to assess human rights impacts of algorithmic decision-
making (hereinafter: ADM) through human rights control mechanisms. The
fundamental research questionwith respect to intersection between new technologies
and human rights compliance is whether related human rights violations can be
addressed by any of the procedural guarantees of international human rights law.
The methodology used was in-desk research on treaty and resolution bodies
which could proceed with potential ADM-related human rights violations. The
quantitative method was used to examine whether, if any, ADM-related cases have
been held before human rights control mechanisms so far. The qualitative method
allowed to verify a significance of non-discrimination and the right to privacy while using
ADM systems, as well as the meaning of control mechanisms for human rights
compliance.
The paper consists of three parts. Firstly, the definition and examples of ADM,
as well as human rights considerations are presented. Then, it is ana lysed which of
the human rights control mechanisms address ADM. Ideally, the focus should be paid
on individual and inter-state complaints, as being primary expected to address and
further prevent human rights violations. Unfortunately, there has been little, if
any,explicit jurisprudence concerning ADM and AI so far. A significant contribution has
been made within the framework of resolution bodies, particularly before the Human
Rights Council (hereinafter: HRC) and special procedures established therein. Several
special rapporteurs have already examined human rights impacts of increasing
digitization of welfare states and of ADM tools in a private sphere.Eventually, there are
some reactive and decentralised (either regional or domestic) efforts to control or
supervise pre or post development and use of ADM. The paper concludes with final
remarks evaluating control mechanisms that addressADM. In this sphere, there is a
difference in state obligations and business responsibilities while deploying ADM tools.
Whereas states are at the frontline of respecting, protecting and fulfilling their human
rights obligations (collectively, states are further trustees of international human rights
law
1
), private entities seem to be free to develop and use ADM for their commercial

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