Draft framework convention on artificial intelligence, human rights, democracy and the rule of law
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 18 April 2024
(13th sitting) (see Doc.
15951 and Doc.
15971, report of Committee on Legal Affairs and Human Rights,
rapporteur: Ms Thórhildur Sunna Ævarsdóttir). Text
adopted by the Assembly on 18 April 2024 (13th sitting).
1. The Parliamentary
Assembly considers that artificial intelligence (AI) brings both
opportunities and challenges. The position of the Assembly in this
field has always highlighted the importance of striking the right balance
between mitigating the risks and making full use of the advantages
that AI can offer in promoting a better life for all.
2. The Assembly recalls its previous work on AI. In 2020, it
adopted a set of resolutions and recommendations examining the opportunities
and risks of AI for democracy, human rights and the rule of law. These
included
Resolutions
2341 (2020) “Need for democratic governance of artificial intelligence”,
2342 (2020) “Justice by algorithm – The role of artificial intelligence
in policing and criminal justice systems”,
2343 (2020) “Preventing discrimination caused by the use of artificial
intelligence”,
2344 (2020) “The brain-computer interface: new rights or new threats
to fundamental freedoms?”,
2345 (2020) “Artificial intelligence and labour markets: friend
or foe?”,
2346 (2020) “Legal aspects of ‘autonomous’ vehicles” and its related recommendations,
as well as
Recommendation
2185 (2020) “Artificial intelligence in health care: medical, legal and
ethical challenges ahead”. The Assembly endorsed a set of key ethical
principles that should be respected when developing and implementing
AI applications. These principles, which were further elaborated
in a common appendix to all these reports, are:
2.1 transparency, including accessibility
and explicability;
2.2 justice and fairness, including non-discrimination;
2.3 human responsibility for decisions, including liability
and the availability of remedies;
2.4 safety and security;
2.5 privacy and data protection.
3. The Assembly strongly believes that legal regulation is necessary
in order to avoid or mitigate the potential risks to democracy,
human rights and the rule of law arising from the use of AI. In
this context, the Council of Europe, as a leading international
standard-setting organisation in the field of democracy, human rights
and the rule of law, should play a pioneering role. While supporting
the work of the Council of Europe Ad hoc Committee on Artificial
Intelligence (CAHAI) at the time, the Assembly called on the Committee
of Ministers to decide upon the preparation of a legally binding
instrument governing artificial intelligence, possibly in the form
of a convention open also to non-member States, which should be
based on a comprehensive approach, deal with the whole lifecycle
of AI-based systems, be addressed to all stakeholders and include
mechanisms to ensure its implementation. The Assembly therefore
warmly welcomes the finalisation of the draft framework convention
on artificial intelligence, human rights, democracy and the rule
of law by the Council of Europe Committee on Artificial Intelligence
(CAI).
4. The Assembly has always considered that private actors should
fall within the scope of such a legally binding instrument. In its
Resolution 2341 (2020), it expressed the view that the instrument should contain provisions
to limit the risks of the use of AI-based technologies by State
and private actors to exercise control over people, and that the
activity of private actors should be subject to democratic oversight.
5. The framework convention, once adopted, will become the first
ever international treaty on AI. It is based on the Council of Europe’s
standards on human rights, democracy and the rule of law, which
are also shared by the non-member States that participated in the
negotiations. This is an example of the Council of Europe’s leadership
in developing standards in emerging areas, including the digital
sphere, in line with the Reykjavik Declaration adopted by the Heads
of State and Government in May 2023. The framework convention’s
added value will partly lie in its global reach, since it will bring
together States from all over the world wishing to address the global
challenges posed by AI using a human rights-based approach. The
Assembly therefore understands that the drafting process has had
to accommodate diverse legal and political traditions and systems,
with the result that the draft text often contains very general
and abstract provisions, allowing for a certain level of flexibility
in its implementation. Its “framework” nature also means that it
will need to be supplemented by other binding or non-binding instruments
concerning the use of AI in specific sectors or further developing
certain provisions of the convention. The Assembly is ready to contribute
to the preparation of such instruments.
6. The Assembly is satisfied that most of the key ethical principles
endorsed in its 2020 reports are reflected in different provisions
of the draft framework convention, although some of these principles
could have been formulated as positive individual rights rather
than general principles (for instance, privacy, equality and non-discrimination).
Furthermore, it could have been made even clearer that each individual
government should be obliged to inform its citizens of the use of
AI systems in administrative procedures leading to binding legal decisions.
Another significant added value of this draft framework convention
is that it is intended to protect not only human rights but also
democratic processes and the rule of law in the context of AI. AI
technologies have the potential to disrupt the functioning of democratic
institutions and processes, for instance through interference in
electoral processes, disinformation and manipulation of public opinion.
They can also have an impact on the functioning of the rule of law,
including the independence and impartiality of the judiciary and access
to justice. In this regard, the Assembly considers that the interpretation
of “democratic institutions and processes” and “the rule of law”
within the meaning of the draft framework convention should be guided
by the relevant standards developed over the years by Council of
Europe bodies such as the European Court of Human Rights and the
European Commission for Democracy through Law (Venice Commission),
as well as by the Reykjavik Principles for Democracy. However, the
drafters missed the opportunity to cover more specifically the positive
uses of AI for democratic processes, for instance improving government
accountability and facilitating democratic action and participation.
7. The Assembly regrets that the draft framework convention does
not cover public and private actors to an equal extent. Rather,
it introduces a system whereby each party will be able to determine
in a declaration how it intends to address the risks and impacts
arising from the use of AI by private actors. This is far from ideal for
legal certainty and the predictability of the obligations imposed
by the framework convention, and is not in line with the positions
previously expressed by the Assembly, the Council of Europe Commissioner
for Human Rights and the CAHAI. It also goes against the principle
that States have positive obligations to protect individuals against
human rights abuses by private actors, in accordance with the case
law of the European Court of Human Rights, the United Nations Guiding
Principles on Business and Human Rights and relevant recommendations
of the Committee of Ministers of the Council of Europe. Many AI
systems are developed and deployed by private entities, and introducing
a differentiated approach for the private sector creates a significant
loophole.
8. The Assembly therefore strongly calls on all member States
of the Council of Europe, when ratifying the framework convention
and submitting their declarations under Article 3.1.b, to recognise the full applicability
of the principles and obligations set forth therein (Chapters II
to VI) to activities of private actors, and to report accordingly
to the future Conference of the Parties under Article 24. It further
invites the Conference of the Parties to fully use its powers and
conduct a proper review of how all parties comply with Article 3.1.b. The Assembly believes that a
dynamic interpretation of this provision by the follow-up mechanism
set up by the framework convention will foster progress over time,
through reporting requirements and peer pressure, including with
respect to non-member States which may choose not to apply the framework
convention obligations to private actors.
9. Having considered some of the proposals by different stakeholders,
and taking due account of the overall structure and the transversal
character of the agreed text, the Assembly proposes the following amendments
to the draft framework convention:
9.1 replace Article 3.2 with the following text: “Each Party
may restrict the application of the provisions of this Convention
if activities within the lifecycle of artificial intelligence systems
are necessary to protect its national security or national defence
interests and if such activities are conducted in a manner consistent
with applicable international law, including international human
rights law obligations, and with respect for its democratic institutions
and processes.”;
9.2 delete Article 3.4;
9.3 in Article 5.1, after “effectiveness of democratic institutions
and processes, including”, add the following words: “free and fair
elections,”;
9.4 in Chapter III, add the following article: “Every Party
shall adopt or maintain measures to preserve health and the environment
in the context of activities within the lifecycle of artificial
intelligence systems, in line with applicable international and
domestic law.”;
9.5 in Article 14.2.c or
in the explanatory report, add a reference to “judicial authorities”
or “judicial review”;
9.6 in Article 15.1, add a reference to “human review”;
9.7 in Articles 16.1, 16.2.a and e and 16.3, after the words “the
rule of law”, add the following words: “and the preservation of
the environment”;
9.8 replace Article 16.4 with the following text: “Each Party
shall take such legislative or other measures as may be required
to put in place mechanisms for a moratorium, a ban or limitations
in respect of certain uses of artificial intelligence systems where
such uses are considered incompatible with the respect for human
rights, the functioning of democracy or the rule of law.”;
9.9 in Chapter VI, add the following article: “Each Party
shall take appropriate measures to ensure protection of whistle-blowers
in relation to the activities within the lifecycle of artificial
intelligence systems which could adversely impact human rights,
democracy and the rule of law.”;
9.10 at the end of Article 26.2, add the following sentence:
“The functions and powers of such mechanisms shall include investigative
powers, the power to act upon complaints, periodic reporting, promotion,
public awareness and consultation on the effective implementation
of this Convention.”;
9.11 in Chapter VII, after Article 26, add the following article:
“Parliamentary involvement”: “1. National parliaments shall be invited
to participate in the follow-up and review of the measures taken
for the implementation of this Convention. 2. The Parliamentary
Assembly of the Council of Europe shall be invited to regularly
take stock of the implementation of this Convention.”
10. The Assembly wishes to participate in the future Conference
of the Parties set up by the framework convention and engage in
the co-operation and exchange of information envisaged under Article
25.
11. The Assembly invites its Sub-Committee on Artificial Intelligence
and Human Rights to raise awareness of the framework convention,
once adopted, including by promoting its ratification or accession
by member States, observer States and States whose parliaments enjoy
observer or partner for democracy status with the Assembly.
12. Finally, the Assembly will continue to work on AI-related
issues, through new reports on emerging topics and by following
closely and contributing where necessary to the standard-setting
activities of the CAI and other relevant Council of Europe intergovernmental
bodies.
