Industrial revolution 4.0 and its impact on the protection of constitutional human rights: a reflection from the Vietnamese context

In order to promote opportunities and minimize negative impacts of this development process, countries like Vietnam need to ensure that law and policy are adjusted to protect fundament[r]

274 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

INDUSTRIAL REVOLUTION 4.0 AND ITS IMPACT

ON THE PROTECTION OF CONSTITUTIONAL HUMAN RIGHTS: A REFLECTION FROM THE VIETNAMESE CONTEXT

A/Prof Nguyen Thi Thanh Hai Institute for Human rights, Ho Chi Minh National Academy of Politics Abstract

The fourth industrial revolution has had a profound impact on all areas of social life, including constitutional human rights In order to promote opportunities and minimize negative impacts of this development process, countries like Vietnam need to ensure that law and policy are adjusted to protect fundamental human rights

Keywords: The fourth industrial revolution, constitutional human rights, Vietnam. Introduction

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economy and to ensure sustainable development.1 The rapid development and application of new

technologies is impacting on a wide range of human rights This paper analyses the impact of the Industrial Revolution 4.0 on constitutional human rights by assessing the effects of technological achievement on human rights in both positive and negative ways and identifying legal gaps in current laws on the protection of human rights in Vietnam

1 Protection of human rights in Vietnam’s Constitution

Human rights are inherent standards to which everyone is entitled Today human rights are universal values recognized by all states States have an obligation to respect, protect and fulfil human rights without discrimination based on gender, language, race, nationality, religion, place of residence, occupation, disability, social standing or any other status Human rights are recognized by law through international treaties, customary laws, and incorporated into domestic laws

Vietnam has ratified core human rights treaties and many ILO conventions; therefore, it has obligations to incorporate human rights principles and standards into national legislation.2

Human rights were agreed in the first Constitution in 1946 and further affirmed by later Constitutions in 1959, 1980, 1992 and 2013.3 In the 2013 Constitution, Vietnam established a strong

recognition of all fundamental civil, political, economic, social and cultural human rights in Chapter (from Articles 14 to 49) Compared to the previous version of the Constitution, the 2013 Constitution contains many new developments including affirming that human rights belong to everyone These were originally considered as citizens’ rights in the 1992 Constitution The 2013 Constitution also provides a further recognition of other human rights such as the right to life (Article 19), the right to donate human body parts and the human body (Article 20), the right to privacy (Article 21), the right to social security (Article 34), the right to marry and divorce (Article 36), the right to one’s own culture (Article 41), the right to determine one’s nationality, to use one’s mother language, and to select the language of communication (Article 42), and the right to a clean environment (Article 43)4 More importantly, the 2013 Constitution takes into consideration the nature of human rights by

changing the emphasis from the idea of seeing human rights as a “gift” from the state to that of an inherent right Accordingly, the state has an obligation to recognize, respect, protect and guarantee (Article 3) all fundamental human rights for everyone 5 Such constitutional recognition of human

rights standards has created a legal foundation for further codification of human rights in Vietnam 1 Central Committee of the Comunist Party of Vietnam, Resolution of the Politburo on some viewpoints and policy

to actively participate in the Fourth Industrial Revolution, (No 52-NQ/TW) Available in Vietnamese at: http://

tulieuvankien.dangcongsan.vn/he-thong-van-ban/van-ban-cua-dang/nghi-quyet-so-52-nqtw-ngay-2792019-cua-bo-chinh-tri-ve-mot-so-chu-truong-chinh-sach-chu-dong-tham-gia-cuoc-cach-mang-cong-5715

2 Vietnam has ratified out of core human rights treaties Vietnam has also ratified 23 ILO conventions in which of fundermental conventions; of governance conventions and 15 of 177 technical conventions

3 See: The statistics of Constitutional Provisions on Human Rights in Vietnam in 1946 1959, 1980, 1992 and 2013 Constitution in Giao Cong Vu, Kien Tran, Constitutional Debate and Development on Human Rights in Vietnam, Asian Journal of Comparative Law, 11 (2016), pp 235–262

4 Vu Cong Giao, Nguyen Son Dong, Những điểm tiến quyền người, quyền công dân Hiến pháp

2013 việc thực thi, (The advancement and process in human rights, citizen’s rights in the 2013 Constitution and

276 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Industrial Revolution 4.0 and its impact on constitutional human rights

Industrial Revolution 4.0 can be associated with human rights in several ways On the one hand, applications of this industrial revolution provide tools that help expand the recognition, promotion and protection of human rights and create new opportunities for human rights promotion in diverse contexts and settings For example, new technologies can contribute to improving availability and accessibility to the right to education The right to access information is executed more quickly and comprehensively with the support of the internet, big data, the development of online information systems, social networks, etc Big data makes it easier to collect and analyse data, so that there can be a basis to support and monitor discrimination against vulnerable groups Information on human rights violations can also be shared more quickly, so governments, NGOs and responsible parties can obtain access and provide timely support measures New technologies, especially those related to health and education, can help increase service access and improve socio-economic development indicators, thereby improving the people’s ability to exercise their rights to health and education, the right to food, the right to entertainment, and the right to benefit from the development of science and technology Digital technology also makes the exercise of freedom of expression more effective Media and social networks are increasingly becoming an important channel for people to exercise their right to freedom of expression and freedom of speech around the world New technology can enable better service delivery for vulnerable groups Artificial intelligence can be used as a tool to promote the right to equality and non-discrimination on grounds such as race, gender or disability1

Artificial intelligence technology, for example, contributes to increased access to services and reduced support costs for people with disabilities and enabling them to have the opportunity to use more advanced devices to support themselves The development of gene technology also makes it easier to investigate crimes, especially against women and children

On the other hand, new applications of Industry 4.0 present a number of new challenges for the promotion and protection of human rights in many fields The development and widespread usage of the internet and social media platforms serve as an important channel to promote rights to information, promote human rights education, and to exercise freedom of expression, but also pose new challenges for online violence, aggression, discrimination and fake news Easy access to personal information and data has even led to the infringement of democratic rights in the political system, for example, the use of big data technological applications to interfere with national elections Most recently, there have been allegations against Facebook that 50 million records were harvested without explicit consent of users and were used by the data corporation Cambridge Analytica to influence the outcome of the US Presidential election, giving Donald Trump an advantage during his run for US president in 2016.2 Artificial intelligence

technologies such as facial recognition can have serious impacts on the right to privacy

The right to privacy can be violated when personal data can flow easily and quickly across borders The development of algorithms and artificial intelligence has, in many cases, gone beyond 1 Australian Human Rights Commission, Human Rights and Technology: Discussion Paper (2019) Available at: https://

www.humanrights.gov.au/our-work/rights-and-freedoms/publications/human-rights-and-technology-discussion-paper-2019 Accessed Feburuary 15 2020

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the capacity to protect rights in the legal system such as online privacy as well as the right to protection of data and personal information For example, the rapid dissemination and spread of information on social networks can lead to privacy breaches because information once shared will be difficult to correct or delete if necessary Currently, many countries around the world have passed laws on the protection of personal data in the context of technological development, in which special emphasis is placed on the responsibilities of businesses, on protecting privacy rights and personal information.1

The negative impact of technology on human rights can also be seen in many other ways Unequal access to artificial intelligence technology may lead to increases in inequality and discrimination AI also creates paradoxes in its potential applications Self-driving aircraft technology can provide rapid help in emergency relief situations (such as transporting blood and flood relief) but can also be used as a weapon against humanity

The development of automated or robot technology, on the one hand, helps to free up labour for people and increase labour productivity but on the other hand also threatens millions of people who face the risk of losing their jobs Many traditional industries and businesses will continue to disappear in the future For example, in 1998, the Kodak camera company employed 170,000 workers, accounting for 85% of the market for photographic paper in the world, but subsequently this business field completely disappeared as digital technology replaced paper-based photography Craft industries may also disappear and may be replaced with the emergence of new occupations that require highly developed skills According to estimates in research by the McKinsey Global Institute, by 2030 there will be 400-800 million current jobs in the world that will be replaced by automated technology.2 The birth of “smart factories”, in which machines are connected to the internet and

linked together through a system that can visualize the entire production process to make decisions, will gradually replace previous production line structures and systems Industrial Revolution 4.0 will also lead to the trend for countries with technological advantages and capital investment to take back production to their countries based on the application of “smart factory” technology rather than investing in countries which have advantages in low-cost labour resources This is a big challenge, especially for countries with a large low-skilled labour force such as Vietnam, requiring the country to have a strategic vision to carry out the transformation of the mindset regarding skills, careers, contractual systems and industrial relations for employees

Along with the development of technology is the emergence of the gig economy and new business models in the form of self-employment and freelance labour The current gig economy gives employees more opportunities to find jobs and increase their income more flexibly, for example through sharing services when using Uber, Grab, or freelance employment services on technology platforms such as Taskrabbit However, the situation of “temporary labor”, “free labor” without labour contracts also poses a big challenge in terms of how to ensure the rights of workers, including the right to adequate working conditions, the right to bargain collectively and the right to association 1 See: Open Global Rights, Addressing the Potential Human Rights Risks of the Fourth Industrial Revolution Available at: https://www.openglobalrights.org/addressing-the-potential-human-rights-risks-of-the-fourth-industrial-revolution Accessed November 15 2019

278 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Industrial Revolution 4.0 specifically affects vulnerable groups such as women, people with disabilities, children and the elderly These are the groups that need special assistance in accessing and protecting the implementation of their human rights The advent of digital technology with online platforms can contribute to promoting gender equality by supporting women to access information and education and to connect with development opportunities However, there is also increased risk that they will be attacked, harassed or sexually assaulted online For example, a study conducted in 2016 showed that 76% of women under the age of 30 have been harassed online.4 New technology can

provide learning and information opportunities for children, but also raises new risks for children’s rights, including increasing opportunities for modern slavery and exploitation of child labor, violent abuse, online child abuse such as children trafficking, child pornography and many other violations of children’s privacy

It can be said that the effects of Industry 4.0 on promoting and protecting human rights are quite clear Therefore, governments need to have specific strategic vision and action plans to ensure human rights in the development context of the 4.0 revolution to promote advantages and minimize risks of human rights violations, especially the risks caused by the private sector (enterprises)

The table below provides some examples of the positive and negative impacts of Industrial Revolution 4.0 on specific human rights that have been recognized in the 2013 Constitution of Vietnam.1

Human rights Impact of Industry 4.0

The right to equality and freedom from discrimination

New technologies, especially those related to health and education, can improve access to services and improve socio-economic development indicators

Big data makes it easier to collect and analyze data, so that there can be a basis to support and reduce discrimination against vulnerable groups

New technology may limit access to the rights of certain vulnerable groups in society.

The right to freedom of expression

New technology opens up many options and opportunities for exercising the right to freedom of expression for different groups in society

An increase of expression in the form of aggression, provoking violence

The right to work Open up many job opportunities in new technology fields

Workers without education and skills will find it very difficult to gain employment The risk of losing jobs in handicraft occupations is low

The right to benefit from scientific and technical advances

Applying new science and technology to improve the quality of life, improve the capacity to exercise human rights in health, education, food and entertainment

Some target groups may lose / have restricted access to their rights

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Right to privacy Technology applications can help keep personal information data better Easy access to personal information and data makes it difficult to implement the laws on privacy protection

The rapid dissemination and spread of information on social networks can lead to privacy breaches because information once shared will be difficult to correct or delete.

There is a risk that ‘surveillance states will infringe on all aspects of personal privacy

Right to education New technology helps diversify types of education, increase access to education for everyone

The application of new forms of education and training may hinder access to some target groups: the elderly, people with disabilities, etc.

Right to a fair trial Artificial intelligence can be used as a tool in procedural support and legal analysis to ensure impartial adjudication

New technology can help support victims of violence or violate their right to justice

The application of technology in the legal system may discriminate against some vulnerable groups.

Rights of persons with disabilities

New technology will increase access to services for people with disabilities New technology helps reduce the costs of supporting people with disabilities

New technologies can increase barriers for people with disabilities if they not include people with disabilities in the process of design and programming.

Women’s Rights The development of DNA technology will make the process of identifying and prosecuting sex offenders easier

An increase in the threat of online violence, trolling and human trafficking

Children’s Rights The opportunity to access more information and enhance education

Vulnerability to misleading or false information that is not mediated by teachers The emergence of forms of violence and child abuse online: child trafficking, child pornography

2 Impact of Industrial Revolution 4.0 on human rights in Vietnam

The requirement for Vietnam, in the context of the rapid development of the current 4.0 industrial revolution is to have strategic vision and clear action plans to seize opportunities, protect against vulnerabilities and solve resulting challenges When considering the impact of the 4.0 Industrial Revolution, all countries need to pay attention to the multifaceted impact not only on the economy, production technology, management model but also on social and legal impacts and human rights The 4.0 revolution will give countries the opportunity to prosper, connect and integrate more quickly and easily, potentially ensuring better human rights, but also posing to them the challenges of labour rights and employment rights, inequality, increasing vulnerability for certain social groups and issues of increased state surveillance and control

280 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS Minister’s Cabinet in Thailand approved the human rights platform and program to be incorporated into that country’s 4.0 strategy This platform includes the following specific content:

• Raising awareness about respect for human rights;

• Developing a monitoring system for human rights violations; • Building a rights-based culture;

• Establishing a network to monitor rights implementation; • Improving data on rights violations;

• Revising laws to respond to change;

• Raising awareness for state officials on human rights; • Reducing violations and abuse of human rights; • Building typical models of human rights and;

• Taking measures to implement human rights proposals.1

The Australian Government has taken a range of initiatives in relation to Industrial Revolution 4.0 In 2016, the Prime Minister of Australia established a government task force on the 4.0 revolution to cooperate with the German government to implement industry 4.0 in the fields of: architecture, setting standards, support for small and medium enterprises, an industry 4.0 test station, network security system, employment and education and training.2 The National Committee for Human

Rights of Australia has implemented a major research project on technology and human rights with extensive consultation and seminars to understand current issues; conduct research and organize public consultations on the best way to address opportunities and tackle human rights challenges in the context of new technology; and, finally to develop a roadmap of appropriate reforms.3

Industrial Revolution 4.0 presents inherently paradoxical opportunities and threats to all countries and their citizens and this is particularly the case with respect to Vietnam Vietnam belongs to a group of countries that are in the transitional phase of the 4.0 technology revolution with many development opportunities in the fields of production, services, agriculture, banking, finance and related areas The development and application of new technological opportunities will bring about economic growth for Vietnam, contributing directly to improving the exercise of human rights for people in many fields For example, the application of digital technology has helped to create jobs for a number of new business sectors in Vietnam such as transportation, Airbnb rental services and other similar online business, thereby making a positive contribution to ensuring the right to employment and the right to a satisfactory standard of living for the people Technological breakthroughs will also help create applications in medicine to positively support access to health services and ensure health rights – for

1 Ministry of Foreign Affairs of Thailand, Announcement of National Program “Human rights are fundamental elements of Thailand 4.0, towards sustainable development.” Available at: http://www.mfa.go.th/main/en/news3/6885/86767-Announcement-of-the-National-Agenda-chantHuman-Rights.html Accessed November 10 2019

2 Ministry of Industry, Innovation and Science, Industry Task Force 4.0 Available at:https://archive.industry.gov.au/ industry/Industry-4-0/Pages/PMs-Industry-4-0-Taskforce.aspx Accessed November 15 2019

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example, online diagnosis services will enable doctors and paramedical professionals to treat patients in remote regions of the country, thus enhancing the right to quality health care for minority and other rural communities The rapid development of internet and online services is also a great opportunity to promote and exercise the right to access to information and freedom of expression provided that the country invests in high speed broadband services that are universally accessible across the country

However, at present, Vietnam’s access to the 4.0 Industrial Revolution is still at a low level According to a review of the Ministry of Science and Technology published in April 2017, Vietnam’s access to the Industrial Revolution 4.0 is only at 4.9 / 10 points in terms of its readiness for the 4.0 revolution Therefore, Vietnam needs to have guidelines, policies and programs to approach the Industrial Revolution 4.0 with a long-term vision and taking into account impacts and risks in the fields of economy, society, laws and human rights There is also a need to invest in the technological infrastructure that will enable access to Industrial Revolution 4.0 for all businesses, communities and citizens

As with other countries, the impact of the Industrial Revolution 4.0 on human rights is quite clear both in terms of formulating human rights laws and in ensuring their enforcement in practice Some human rights challenges in Vietnam in the context of Industrial Revolution 4.0 are now elaborated

The development of the Internet and social platforms poses many legal and wider challenges to recognizing and ensuring human rights in Vietnam Regarding privacy, some of the new issues that need to be codified need to be legalized with regards to the right to protect personal data, the right to be forgotten on the internet, etc Vietnam also needs to recognise, in its human rights architecture, issues that relate to the emerging surveillance society Surveillance societies are societies which function, in part, because of the extensive collection, recording, storage, analysis and application of information on individuals and groups in those societies as they go about their lives Retail loyalty programmes, website cookies, national identity schemes, routine health screening and traffic monitoring cameras all qualify as components within a surveillance society Each feature, in different measures, the routine collection of data about individuals with the specific purpose of governing, regulating, managing or influencing what they in the future Emerging big data management systems enable governments and other agencies to link data from each together in order to create a comprehensive profile of individual and community behaviour Although stipulated in the 2013 Constitution, Vietnam has not yet passed a separate privacy law to regulate these new legal issues

282 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS continuous training serves to protect citizens’ rights to education and employment in the rapidly changing context of Industrial Revolution 4.0, but it requires major state investment

At the same time, the emergence of a gig economy with new business models and labour relations forms a new workforce, such as online businesses, drivers for ride-sharing services like Uber, Grab While providing ease in the delivery of needed services and offering flexible economic opportunities especially to those who are unable to commit to the rigidity of regular employment (such as mothers and students), the gig economy also presents serious challenges to upholding labour rights in Vietnam by being linked with precarious work, enforced casualisation, uncertain hours, poor pay and involuntary overtime These business models are outliers in terms of the regulation of Vietnamese labour laws and social insurance laws The current Vietnamese constitution and labour law does not recognize some newly formed rights in the context of 4.0 Industrial Revolution such as the right to disconnect and labour protections for people working in the gig economy.1

In the future, the Party, National Assembly and Government of Vietnam need to have breakthrough policies that are comprehensive, stronger and backed by public investment so that Vietnam can seize opportunities and overcome challenges, proactively participating in this revolution More specifically, when formulating policies, laws, strategies, and programs on the 4.0 revolution, Vietnam needs to take into account the responsibility to ensure that the human rights obligations of the State are met, by limiting the risks of human rights violations under the influence of the 4.0 Industrial Revolution Vietnam needs to apply a rights-based approach when implementing socio-economic development programs and there is little doubt that this will require extensive investment of both financial and moral capital

Conclusion

This paper uses a human rights approach to identify and analyze the challenges and opportunities for human rights protection and promotion in the context of new and emerging technologies It considers the implications on human rights, and how Vietnam should respond to address the legal gaps on human rights

There is little doubt that Industrial Revolution 4.0 presents major opportunities for an emerging economy such as that of Vietnam It has the potential to place the country and its economy at the heart of the global economy and enhance its standing across a wide range of primary, manufacturing and service sectors At the same time, Industrial Revolution 4.0 presents real challenges with respect to the existing economy in Vietnam and some of the country’s main sources of wealth and employment will be severely threatened by the likely changes

In the area of human rights, there are opportunities to enhance human rights in Vietnam regarding education, employment, health, information and individual safety for all citizens, especially those groups that are currently disadvantaged such as women, youth, the disabled and minorities At the same time, there are potential threats to rights in all these areas unless careful consideration is given to up-dating and monitoring human rights by the State in line with technological and economic changes Human rights considerations must not be neglected in the rush to capitalise on Industrial Revolution 4.0 in Vietnam 1 Recently a number of countries such as France and the Philippines have revised labor laws to recognize the right to

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and commitments in the 2013 Constitution need to be updated as the wider technological, economic and social changes are better understood Balancing technological progress, economic development and respect for individual rights will be the biggest challenge of all for the country

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