Council of Europe creates rules for Artificial Intelligence

Not only the EU but also the Council of Europe – an international organization based in Strasbourg – plans to regulate Artificial Intelligence (AI). To this end, it is currently negotiating a Convention on AI. In this explainer, we show what this is all about, why it is relevant to you and what the next steps are.

Stanford University Libraries via Public Domain Review

Angela Müller
Angela Müller
Head of Policy & Advocacy | Executive Director AlgorithmWatch CH

Algorithmic systems – often referred to by the buzzword Artificial Intelligence (AI) – increasingly pervade our daily lives. They are used to detect social benefits fraud, to surveil people at the workplace, or to predict parolees’ risk of reoffending. Often, these systems do not only rest on shaky scientific grounds but can be used in ways that infringe people’s basic rights – like those to non-discrimination, freedom of expression, privacy, or access to justice –, can undermine foundational democratic principles, and through their non-transparent nature and the lack of accountability mechanisms can be in tension with the rule of law. Against this background and in light of its mandate, the Council of Europe has recognized the need for states to govern the development and use of AI systems: To this end, its member states and selected other interested states – like the US or Japan – are negotiating a Convention in AI. Civil society organizations like AlgorithmWatch, experts, and companies are participating in the negotiations as observers.

The Council of Europe is an international organization founded in 1949 with the task to uphold human rights, democracy, and the rule of law in Europe. It currently has 46 Member States (27 of which are also members of the European Union (EU)) and is based in Strasbourg. It is not to be confused with the European Council and the Council of the EU, which are both EU bodies – in contrast to the Council of Europe. In 1950, it drafted the European Convention on Human Rights (ECHR), the ratification of which still is a condition for new members to join. The Council of Europe hosts the European Court of Human Rights, which oversees the implementation of the ECHR, and promotes human rights through a range of additional measures, including international conventions, such as the Convention on Cybercrime or Convention 108 on data protection.

What would this mean? How will the outcome of the Council of Europe’s work protect our rights, our democracy, and principles of rule of law?

As of today, the Council of Europe’s plan is to create an international ‘Convention’ or a ‘Framework Convention’, both of which would be international treaties that are legally binding under international law upon states that sign on to it. States would thus be free to sign or not to – but if they do, they legally commit themselves to comply with it. Signatures would be open to non-member states, which is why states like the US or Israel are participating in the current negotiations.

Such a Convention would contain a range of obligations for states to make sure that human rights are respected in the development and use of AI systems. It would not be limited to one specific field of application but contain horizontal rules (which could be complemented by additional sectoral regulations in the future). Signatory states would be required to implement the provisions at the domestic level, i.e., through introducing domestic measures and laws. Affected individuals will thus be protected by these domestic safeguards (given their state has signed on) and can seek legal remedies at domestic level. In addition, the Convention would likely require states to create a national supervisory authority to supervise the implementation of the Convention’s obligations.

While a monitoring procedure is typically established at Council of Europe level for (Framework) Conventions, whether there will be such and what it would exactly look like is currently being negotiated. What is already clear: It would certainly not include the possibility for individuals to claim violations of the new AI Convention directly before the European Court of Human Rights, whose mandate is limited to the European Convention on Human Rights (ECHR). However, individuals could still lodge complaints about a violation of their ECHR rights in relation to AI systems (on condition that national courts have rejected their complaint). The Strasbourg Court will then likely consider the principles enshrined in the specific legal instrument on AI.

What has happened so far?

What are the next steps?

A final plenary meeting is planned for March 2024, when the member states are expected to agree on the text of the convention, which would then be adopted by the Committee of Ministers in May 2024.

How is AlgorithmWatch contributing?

AlgorithmWatch is participating as active and official observer organization at CAI negotiations. Before that, we have actively contributed to CAHAI as an official observer in 2020 and 2021. The aim of our contribution is to ensure that the voice of civil society is heard in the negotiations in CAI – and to fight for a legal instrument on AI systems that is truly oriented at the Council of Europe’s mandate: the protection of our most basic rights, of our democracies, and the rule of law.

Read more on our policy & advocacy work on the Council of Europe.

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