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An appropriate legal framework on AI is being considered
1. This paper contains the outcomes of the work of the Council of Europe Ad hoc Committee on Artificial Intelligence (CAHAI) on the potential elements of a legal framework for the development, design and application of artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law.
2. The paper has been drafted by two Working Groups of the CAHAI, namely the CAHAI Policy Development Group (CAHAI-PDG) and the CAHAI Legal Frameworks Group (CAHAI-LFG) while taking into account the outcomes of the multi-stakeholder consultation conducted in the Spring of 2021 by the third Working Group, the CAHAI Consultations and Outreach Group (CAHAI-COG). It was examined and adopted by the CAHAI at the occasion of its sixth Plenary meeting on 30 November – 2 December 2021, and consequently submitted to the Committee of Ministers for further consideration in line with the terms of reference of the CAHAI. II General remarks
3. The CAHAI observes that the application of artificial intelligence (AI) systems has the potential to promote human prosperity and individual and social well-being by enhancing progress and innovation, yet at the same time certain applications of AI systems give rise to concern, as they potentially pose risks to human rights, democracy and the rule of law.
4. To effectively prevent and/or mitigate these risks, the CAHAI considers that an appropriate legal framework on AI based on the Council of Europe’s standards on human rights, democracy and the rule of law, should take the form of a legally binding transversal instrument. The CAHAI notes that – in addition to the proposed legally binding transversal instrument that sets out general principles and specific legal norms – existing or future legally binding and/or non-legally binding instruments may be needed at sectoral level, to provide more detailed guidance on ensuring that the design, development and application of AI occurs in line with human rights, democracy and the rule of law in specific domains.
5. The legally binding transversal instrument should 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. It should be underpinned by a risk-based approach: the legal requirements to the design, development and use of AI systems should be proportionate to the nature of the risk they pose to human rights, democracy and the rule of law. Basic principles that enable the determination of such risk (e.g. transparency requirements) should be applicable to all AI systems.
6. In accordance with Article 1 d of the Statute of the Council of Europe, matters relating to national defence fall outside the scope of a legal framework of the Council of Europe and are therefore not covered in the scope of a legally binding (or non-legally binding) instrument of the Council of Europe. The CAHAI is of the opinion that the issue of whether that scope could cover “dual use” and national security should be further considered in the context of developing a Council of Europe legal framework on AI, taking into account possible difficulties in this respect.
7. The various legal issues raised by the application of AI systems are not specific to the member States of the Council of Europe, but are, due to the many global actors involved and the global effects they engender, transnational in nature. The CAHAI therefore recommends that a legally binding transversal instrument of the Council of Europe, though obviously based on Council of Europe standards, be drafted in such a way that it facilitates accession by States outside of the region that share the aforementioned standards. Not only will this significantly increase the impact and efficiency of the proposed instrument, but in addition it will provide a much-needed level playing field for relevant actors, including industry and AI researchers which often operate across national borders and regions of the world. The standards of the Council of Europe on human rights, democracy and the rule of law are sufficiently universal in nature to make this a realistic option. There are several precedents of Council of Europe treaties being applied beyond the European region, cf. notably the Budapest Convention (Cybercrime) and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108), which currently have 66 and 55 Parties respectively, many of which are not member States of the Council of Europe.
8. It is further recommended that, to ensure both global and regional legal consistency, a legally binding transversal instrument of the Council of Europe should take into account existing and upcoming legal and regulatory frameworks of other international and regional fora, in particular the United Nations system (including UNESCO), the European Union, and the Organisation for Economic Co-operation and Development – all of which are currently involved in developing various forms of standards related to AI systems.
9. The CAHAI notes that the purpose of an international legal framework should not be to lay down any detailed technical parameters for the design, development and application of AI systems, but to establish certain basic principles and norms governing the development, design and application of AI systems and regulate, in a consistent and deliberate manner, if and on what conditions AI systems potentially posing risks to the enjoyment of human rights, the functioning of democracy and the observance of the rule of law may be developed, designed and applied by all types of organisations, including public and private actors alike.