The COE Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law. Is the Council of Europe losing its compass ?

This article is written by Emilio De Capitani.

When the Committee of Ministers of the Council of Europe decided at the end of 2021 to establish the Committee on Artificial Intelligence (CAI) with the mandate to elaborate a legally binding instrument of a transversal character in the field of artificial intelligence (AI), such initiative created a lot of hopes and expectations. For the first time, an international convention ‘based on the Council of Europe’s standards on human rights, democracy and the rule of law and other relevant international standards’ would regulate activities developed in the area of AI.  

The mandate of the CAI was supposed to further build upon the work of the Ad Hoc Committee on Artificial Intelligence (CAHAI), which adopted its last report in December 2021, presenting  ‘possible elements of a legal framework on artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law’. In this document, the CAHAI underlined the need for the future instrument to ‘focus on preventing and/or mitigating risks emanating from applications of AI systems with the potential to interfere with the enjoyment of human rights, the functioning of democracy and the observance of the rule of law, all the while promoting socially beneficial AI applications’. In particular, the CAHAI considered that the instrument should be applicable to the development, design and application of artificial intelligence (AI) systems, ‘irrespective of whether these activities are undertaken by public or private actors’, and that it should be underpinned by a risk-based approach. The risk classification should include ‘a number of categories (e.g., “low risk”, “high risk”, “unacceptable risk”), based on a risk assessment in relation to the enjoyment of human rights, the functioning of democracy and the observance of the rule of law’. According to the CAHAI, the instrument should also include ‘a provision aimed at ensuring the necessary level of human oversight over AI systems and their effects, throughout their lifecycles’.

So, a lot of hopes and expectations: some experts expressed the wish to see this new instrument as a way to complement, at least in the European Union, the future AI Act, seen as a regulation for the digital single market, setting aside the rights of the persons affected by the use of AI  systems[1]. In its opinion of 20/2022 on the Recommendation for a Council Decision authorising the opening of negotiations on behalf of the European Union for this Council of Europe convention, the EDPS considered that it represented ‘an important opportunity to complement the proposed AI Act by strengthening the protection of fundamental rights of all persons affected by AI systems’. The EDPS advocated that the convention should provide ‘clear and strong safeguards for the persons affected by the use of AI systems’.

Alas, those hopes and expectations were quickly dampened by the way the negotiations were organised, and, above all, by the content of the future instrument itself.

Please click on this link to read the full article.

Image credit: Wikipedia.