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20 Mar 2024

Draft Convention on AI, Human Rights, Democracy and Rule of Law finalised: ENNHRI raises concerns

On 14 March 2024, the draft Council of Europe Convention on Artificial Intelligence (AI), Human Rights, Democracy and the Rule of Law was finalised at the last plenary of the Council of Europe’s Committee on Artificial Intelligence (CAI). The Convention constitutes a milestone: it is the world’s first legally binding instrument on AI and human rights, democracy and the rule of law. While welcoming its finalisation, ENNHRI has concerns about the final text’s lack of essential human rights safeguards. It raised these in a Statement of Concern during final Convention negotiations.

The content of the Convention – the positives and negatives

From a human rights perspective, ENNHRI is pleased to see that the draft Convention includes some possibility to lodge a complaint; pays attention to human dignity and individual autonomy; and refers to public consultation processes. These formulations demonstrate a commitment to protect human rights, democracy and the rule of law.

Despite these limited successes, ENNHRI raised concerns at the last plenary about the final text’s lack of essential human rights safeguards. The four main concerns detailed in the Statement of Concern are the following:

  1. The Convention should have covered both the public and the private sector equally. Many AI systems are developed and deployed by private entities, making the private sector a central actor in this field, with critical impacts on how AI affects human rights, democracy, and the rule of law. By introducing a different approach for the private sector, including non-binding regulation, the Convention creates an important protection gap.
  2. The Convention should have included AI systems used for national security in its scope. AI systems used for surveillance, data collection, and decision-making processes aimed at countering perceived threats to national security could present significant risks to human rights, democracy and the rule of law. Their exclusion from the scope of the Convention therefore creates a gap in human rights protection.
  3. ENNHRI is concerned that other essential elements of a human rights-based approach are missing in the draft Convention. These include ensuring human oversight of AI systems, and clear and unambiguous criteria and examples of prohibited uses of AI which pose too high a risk for human rights, democracy and the rule of law. The absence of sufficiently robust and independent oversight mechanisms at the Council of Europe and domestic levels exacerbates these concerns.
  4. Imprecise language, such as ‘seek to ensure’, ‘where practicable’ or ‘in accordance with domestic law’, will make enforcing the obligations in the draft Convention difficult. They also go against the Convention’s task to ensure common international legal standards.

ENNHRI has repeatedly urged the CAI to take these concerns into account in order for the Convention to effectively protect human rights, democracy and the rule of law in the context of AI.

Read ENNHRI’s full Statement of Concern delivered to the CAI last week here.

The next steps for the Convention

The draft text will now be referred to the Council of Europe’s Committee of Ministers for adoption. ENNHRI calls on the Committee of Ministers to ensure effective human rights protection in the Convention, thereby addressing the concerns it outlines. Such concerns have been echoed by others, including the Council of Europe’s Commissioner for Human Rights, the EDPS – European Data Protection Supervisor, Equinet, the European Network of Equality Bodies, and in an open letter from civil society organisations.

In any case, ENNHRI will continue its efforts to use NHRIs’ human rights expertise to support the implementation of the Convention and maximise its positive human rights impacts for all.

ENNHRI’s engagement in the negotiation process

From the outset, ENNHRI welcomed the Council of Europe’s initiative to negotiate a Convention on AI, Human Rights, Democracy and Rule of Law. Based on its common position, it actively participated throughout negotiations as an observer. ENNHRI has asked for meaningful opportunities to engage in the negotiation process, consistently contributing to efforts to create a Convention that incorporates a human rights-based approach to AI.

Learn more about ENNHRI’s work on artificial intelligence.