Despite pressure from some EU states, the European Commission is still trying to prevent private companies from being excluded from the first international artificial intelligence treaty.
The Council of Europe, an international human rights body with 46 member states, is close to finalizing the Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law.
From the beginning, the United States, home to the world's leading AI companies, pushed to exclude the private sector from the contract. Once ratified, this would be binding on the country that signed it.
The United States is not a member of the Council of Europe, but participates in the process with observer status. In other words, Washington has no vote, but it can influence the discussion by threatening not to sign the agreement.
The pressure on the United States and other countries in favor of a narrower scope of the treaty was so great that the entire drafting process was kept confidential. NGOs were excluded from the process, although this contradicts the Council of Europe's internal guidelines on stakeholder engagement.
Agreement on AI: US excludes NGOs from negotiations
Civil society organizations were excluded from drafting the first international agreement on artificial intelligence at the request of the US to prevent countries' positions from becoming public.
Broad scope or involvement
On the other hand, the European Commission, which represents the EU in the negotiations, spoke out against the exclusion of the private sector. Two weeks ago, Euractiv revealed an internal note saying that “the Union should not agree to alternative proposals that limit the scope of the Convention”.
At a subsequent meeting of the Working Group on Telecommunications and the Information Society, the EU Council's technical body responsible for digital policy, several Member States called on the Commission to show more flexibility regarding the scope of the agreement.
In particular, countries such as Germany, France, Spain, the Czech Republic, Estonia, Ireland, Hungary and Romania believe that the treaty aims to achieve a global agreement. For this reason, attracting more signatories must take precedence over a broad convention with a smaller number of international supporters.
Since the 27 EU Member States are among the 46 members of the Council of Europe, the Union's position can decisively influence the balance of power within the human rights body, where decisions are taken by consensus.
International agreement on AI: point of contention regarding scope
The US calls for the exclusion of companies from the world's first international treaty on artificial intelligence. In return, the EU Commission is now preparing to reject this proposal and is pushing for the highest possible level of compliance with EU law on AI.
The EU's global ambitions
Narrowing the scope of the Convention would be a serious blow to the Commission's global ambitions. This sees the contract as a means of establishing European law on AI, the world's first comprehensive law on artificial intelligence, as a global benchmark in this area.
In fact, the Commission's negotiating mandate on behalf of the Union is based on the AI Law. The Commission has shown little willingness to go beyond Regulation IA, even in areas where there is no direct conflict, although the two initiatives differ significantly in their nature.
As part of alignment with the AI Act, the Commission is pushing for far-reaching exceptions for AI applications in the areas of national security, defense, and law enforcement. If the Treaty were limited to public institutions only, there would be very little left with these exceptions.
Such dilution of the AI treaty, after several years of commitment from the countries involved, could also discourage future initiatives in this area.
However, the last word on this matter has not yet been said. The Commission's original note was distributed in preparation for a plenary meeting of the Council of Europe's Artificial Intelligence Committee, which began on Tuesday (23 January) and will last until the end of the week.
Participating States are expected to reach consensus on the scope during this plenary session, with a view to the formal adoption of the Convention at ministerial level in May. Discussions, including informal ones that took place last week, have so far been inconclusive. A final decision is not expected until Friday.
Cancellation option
Before the plenary session, the Commission shared an updated note with EU national delegates stating that “the Union must continue to seek to ensure a comprehensive scope of application of the Convention, covering both public and private actors”.
Notably, an added paragraph highlights that “in order to preserve the international nature of the Agreement, the EU may, however, be willing to consider the possibility of a Party making a reservation and exempting itself from the obligation, subject to certain conditions and limitations : apply the Convention to private actors who do not act on behalf of public authorities or purchase AI systems for them.”
The Commission's proposal appears aimed at undermining Washington's argument that the US cannot commit to anything beyond its domestic legal framework.
In October, US President Joe Biden signed an executive order that provides a framework for federal agencies to acquire and use AI tools safely and responsibly. The Commission's proposal therefore also applies to companies that do not work in the public sector.
More specifically, the Commission proposes a time-limited “opt-out” option that can be revoked at any time and offers some assurances that there will be no abuse. This approach would be exactly the opposite of what the US government has proposed. It aims to fundamentally exclude the private sector from the regulation and give signatories an opt-in option.
However, the original “opt-in” option was intended to spare the US government the embarrassment of having to exclude private companies from a human rights treaty. It is also understood that Israel and Japan would not sign the agreement if the opt-out option was included in the final text. On the other hand, the United Kingdom and Canada would follow the US decision.
[Bearbeitet von Nathalie Weatherald]