Abstract
This chapter focuses on the relationship between human rights and the different forms of AI. Its goal is to start specifying the framework for AI governance, in line with the fundamental goals of the international community. Human rights are approached here from the perspective of the area of international law, which guarantees the prevalence of human-centrism in the international legal order. This role necessitates thorough monitoring and careful but still effective interventions in the evolution of AI, in the sense of imposing regulatory mechanisms, of slowing down or even of prohibiting certain AI advantages.
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Notes
- 1.
Cassese (1986), pp. 377–379.
- 2.
- 3.
- 4.
Weston (2008), pp. 324–325.
- 5.
Buchanan (2004), pp. 121–123.
- 6.
Provost (2004), p. 25.
- 7.
- 8.
UN Charter, Preamble; Universal Declaration of Human Rights-UNDA-Preamble; International Covenant on Civil and Political Rights-ICCPR-Preamble; International Covenant on Economic, Social and Cultural Rights-ICESCR-Preamble.
- 9.
Apart from the UN Charter one may indicatively refer to UNDA, ICCPR, ICESR, European Convention of Human Rights-ECHR-African Charter on Human and Peoples’ Rights-ACHPR-American Convention on Human Rights-ACHR.
- 10.
Stamatopoulou (1999), pp. 284–285.
- 11.
Anderson (2010), pp. 183, 186, 194–197.
- 12.
U.N. GA RES/48/134(1993), Principles Relating to the Status of National Institutions; UN Human Rights Office of the High Commissioner for Human Rights, World Conference on Human Rights, (June 14–25, 1993), (www.ohchr.org/EN/ABOUTUS/Pages/ViennaWC.aspx access. 30-06-2020). Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (July 12, 1993).
- 13.
Conklin (2012), p. 838; Crawford (2002), pp. 148–150, 158–160; Byers (1999), p. 194; ICJ statute, Article 38 (www.icj-cij.org/documents/?p1=4&p2=2&p3=0#CHAPTER_II, access. 28-1-2015).
- 14.
Committee of United States Citizens in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988). Rozakis (1976), p. 1.
- 15.
ICJ, Armed Activities on the Territory of the Congo, Separate Opinion Of Judge Ad Hoc Dugard, (New Application, 2002), 85.
- 16.
Spagnoli (2008), pp. 325–326; Petsche (2010), p. 255; Ogilvy (2009), p. 176; Criddle and Decent (2009), p. 334; Orakhelashvili (2005), pp. 79, 85; Cassese (2012), p. 166.
Regarding when it can be objectively identified that there is a jus cogens violation, judge Lauterpacht, in the case “Bosnia v Serbia II”, argued that: “The duty to “prevent” genocide is a duty that rests upon all parties and is a duty owed by each party to every other… First, there is the duty of the Respondent [and thus of any state party] both to prevent genocide and to refrain from conduct that inhibits the ability of the Applicant itself to prevent genocide or to resist it… Third, there is the question of access by the Applicant to the means to prevent the commission of acts of genocide. The Applicant obviously has here in mind… the embargo placed by Security Council resolution 713 (1991)… [I]t is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule of jus cogens or requiring a violation of human rights. But the possibility that a Security Council resolution might inadvertently or in an unforeseen manner lead to such a situation cannot be excluded… On this basis, the inability of Bosnia-Herzegovina sufficiently strongly to fight back against the Serbs and effectively to prevent the implementation of the Serbian policy of ethnic cleansing is at least in part directly attributable to the fact that BosniaHerzegovina’s access to weapons and equipment has been severely limited by the embargo. Viewed in this light, the Security Council resolution can be seen as having in effect called on Members of the United Nations, albeit unknowingly and assuredly unwillingly, to become in some degree supporters of the genocidal activity of the Serbs and in this manner and to that extent to act contrary to a rule of jus cogens.”
ICJ, Bosnia v. Serbia II, (2007), (separate opinion of Judge Lauterpacht) 436-41.
Also see:
ICJ, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), (1998) Dissenting Opinion Of President Schwebel, 60.
Reference should also be made to article 38 of the ICJ.
For a contradictory argument: Weisburd (1995), pp. 38–39.
The origins of jus cogens in the post-World War II era can also be traced in the Nuremberg trial while at a later phase, in the “Barcelona Traction (Belgium v. Spain)” case, the similar term of “erga omnes” obligations was introduced.
Charter of the International Military Tribunal, in force August 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, ICJ, Barcelona Traction, 4, 32.
- 17.
- 18.
Parker and Neylon (1989), p. 414.
- 19.
Article 53 of the Vienna Convention “.”
- 20.
Rozakis (1976), p. 14.
- 21.
- 22.
ICJ, Congo v. Rwanda Judgment, (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, (1996) 64. Spijkers (2009–2010), pp. 87–88. ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, (2006) 64. Fitzmaurice (1973), p. 323. ICJ, The South West Africa Cases, (Ethiopia v. S. Afr.; Liberia v. S. Afr.) (1966) (Tanaka, J., dissenting) 6, 298 (Tanaka, J., dissenting). ICJ, Barcelona Traction, Light and Power Company (Belg. v. Spain), (1970) 3, 301. Adams (2005), pp. 364–369. ICTY, Prosecutor v Furundz ija, No IT-95-17/1-T, (1998), 153–154. H. Gros Espiell, Implementation Of United Nations Resolutions Relating To The Right Of Peoples Under Colonial And Alien Domination To Self-Determination, UN,E/CN.4/Sub.2/405(vol. I) (1978), (unispal.un.org/UNISPAL.NSF/0/BE1DDCB608178D7685256DE100727E8F, access. 29-1-2015). Kamminga (1992), p. 163. ICJ, Barcelona Traction Case, (1962), (Separate opinion of judge Ammoun), 301, 304–312; I.C.J., South West Africa cases, (1966), (Dissenting opinion of Judge Tanaka), 289–290, 298.
- 23.
Report of the International Law Commission on the Work of its Twenty-Eighth Session, State Responsibility, (1976) 2(2), Y.B. Int’l L. Comm’n 69, 99, U.N. Doc. A/CN.4/SER.4/1976/Add.1 (Part 2).
- 24.
R. Nieto-Navia, International Peremptory Norms (Jus Cogens) And International Humanitarian Law, in the (www.iccnow.org/documents/WritingColombiaEng.pdf access. 01-07-2020); Janis (2003), pp. 62–63.
- 25.
Verdross (1966), p. 58.
Sir Hirsch Lauterpacht in 1953 argued that: “It would thus appear that the test whether the -object of the treaty is illegal and whether the treaty is void for that reason is not inconsistency with customary international law pure and simple, but inconsistency with such overriding principles of international law which may be regarded as constituting principles of international public policy (ordre international public). These principles need not necessarily have crystallized in a clearly accepted rule of law such as prohibition of piracy or of aggressive war. They may be expressive of rules of international morality so cogent that an international tribunal would consider them as forming part of those principles of law generally recognized by civilized nations which the International Court of Justice is bound to apply by virtue of Article 38 (3) of its Statute.”
H. Lauterpacht, Document:- A/CN.4/63, Report on the Law of Treaties Special Rapporteur Topic: Law of Treaties, (1953), II, Yearbook of the International Law Commission:, 106, at p. 155.
Fitzmaurice also, held that: “The rules of international law in this context fall broadly into two classes—those which are mandatory and imperative in .any circumstances (jus cogens) and those (jus dispositivum) which merely furnish a rule for application in the absence of any other agreed regime, or, more correctly, those the variation or modification of which under an .agreed regime is permissible, provided the position and rights of their States are not affected.”
G. G. Fitzmaurice, Third Report on the Law of Treaties, Document A/CN//4/115, (1958) II, Yearbook of. International Law Commission, 20, on p. 40.
- 26.
International Law Commission, Report of the on the Work of Its Fifty-third Session, Draft Articles on Responsibility of States for Internationally Wrongful Acts, RUN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), (www.un.org/il,c access. 29-1-2015); Brownlie (1979), p. 512.
- 27.
- 28.
Trnavci (2005), pp. 251–252.
- 29.
Cf. Bassiouni (2001), p. 104.
- 30.
European Court of Justice, Case T-315/01, Kadi v. Council (2005), 224, 226.
- 31.
European Court of Human Rights, Case Of Al-Adsani V. The United Kingdom, (2001), 61.
- 32.
“By accepting that the rule on prohibition of torture is a rule of jus cogens, the majority recognise that it is hierarchically higher than any other rule of international law, be it general or particular, customary or conventional, with the exception, of course, of other jus cogens norms. For the basic characteristic of a jus cogens rule is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule. 2. The Court’s majority do not seem, on the other hand, to deny that the rules on State immunity; customary or conventional, do not belong to the category of jus cogens; and rightly so, because it is clear that the rules of State immunity, deriving from both customary and conventional international law, have never been considered by the international community as rules with a hierarchically higher status. It is common knowledge that, in many instances, States have, through their own initiative, waived their rights of immunity; that in many instances they have contracted out of them, or have renounced them. These instances clearly demonstrate that the rules on State immunity do not enjoy a higher status, since jus cogens rules, protecting as they do the “ordre public”, that is the basic values of the international community, cannot be subject to unilateral or contractual forms of derogation from their imperative contents. 3.The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions.”
European Court of Human Rights, Case Of Al-Adsani V. The United Kingdom, (2005, Joint Dissenting Opinion Of Judges Rozakis And Caflisch Joined By Judges Wildhaber, Costa, Cabral Barreto And Vajić), 1–3.
- 33.
UDHR, Articles 22–28.
- 34.
Jason Pielemeier, AI & Global Governance: The Advantages of Applying the International Human Rights Framework to Artificial Intelligence, United Nations University Centre for Policy Research, (2019, February 26), (https://cpr.unu.edu/publications/articles/ai-global-governance-the-advantages-of-applying-the-international-human-rights-framework-to-artificial-intelligence.html).
- 35.
Alston (1984), p. 607 et seq.
- 36.
Carozza (2008), p. 932.
- 37.
Human dignity as a universal value interacts with each one, specific legal framework, remaining “informal, flexible and pluralistic in its relationship to local law and culture”. Carozza (2003), p. 1043.
- 38.
Diane Desierto, Human Rights in the Era of Automation and Artificial Intelligence, EJILTalk, (2020, February 26), (https://www.ejiltalk.org/human-rights-in-the-era-of-automation-and-artificial-intelligence/).
- 39.
Kate Saslow and Philippe Lorenz, Artificial Intelligence Needs Human Rights September 2019, (https://www.stiftung-nv.de/sites/default/files/ai_needs_human_rights.pdf), p. 18.
- 40.
UN Human Rights Committee, Expert Seminar on Artificial Intelligence and the Right to Privacy, 27–28 May 2020, https://www.ohchr.org/EN/Issues/DigitalAge/Pages/SeminarArtificialIntelligence.aspx.
- 41.
The UN working group on business and human rights, the UN guiding principles on business and human rights an introduction, (https://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf).
- 42.
UN Committee on Economic, Social and Cultural Rights (CESCR), E/C.12/GC/24, General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, (2017, August 10), at paras. 1–12, 35, https://www.refworld.org/docid/5beaecba4.html.
- 43.
Council of Europe Commissioner for Human Rights, Unboxing Artificial Intelligence: 10 steps to protect Human Rights, pp. 7–8.
- 44.
EDRi, UN Special Rapporteur analyses AI’s impact on human rights, (2018, November 7), https://edri.org/our-work/un-special-rapporteur-report-artificial-intelligence-impact-human-rights/.
- 45.
UN GA, Promotion and protection of the right to freedom of opinion and expression, Note by the Secretary-General, A/73/348, (2018, August 29), at paras. 47–51.
- 46.
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report on Artificial Intelligence technologies and implications for freedom of expression and the information environment.
- 47.
Waser, Discovering The Foundations Of A Universal System of Ethics As A Road To Safe Artificial Intelligence.
- 48.
- 49.
Chen (2019). Forthcoming. <https://ssrn.com/abstract=3302507>. A. Liptak, Sent to Prison by a Software Program’s Secret Algorithms, The New York Times (2017).
- 50.
Tegmark (2017).
- 51.
E. Yudkowsky, Creating Friendly AI 1.0: The Analysis and Design of Benevolent Goal Architectures, (2001), <singinst.org/CFAI.html>. H. de Garis, The Artilect War: Cosmists Vs. Terrans (2005).
- 52.
M. Anderson & S. L. Anderson, Machine Ethics (2011), pp. 7–13.
- 53.
Scherer (2016), p. 367.
- 54.
UDHR Preamble: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” ICCPR, Preamble, “The States Parties to the present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
- 55.
The issue is further mentioned in the concluding remarks of the book.
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Tzimas, T. (2021). AI and Human Rights. In: Legal and Ethical Challenges of Artificial Intelligence from an International Law Perspective. Law, Governance and Technology Series(), vol 46. Springer, Cham. https://doi.org/10.1007/978-3-030-78585-7_6
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