US obtains exclusion of NGOs from drafting AI treaty

Civil society organisations have been excluded from the drafting process of the first international treaty on Artificial Intelligence based on a request of the US to avoid countries’ positions becoming public.

The Council of Europe’s (CoE) Committee on Artificial Intelligence has been charged with developing a Convention on Artificial Intelligence, focusing on human rights, democracy and the rule of law.

The Strasbourg-based body is an international organisation counting 46 members, including the EU27, the United Kingdom, Turkey and Ukraine – Russia was recently expelled. The United States, Canada, Mexico and Israel are observer countries, not bound by the body but that can decide to sign specific treaties like the one on AI.

At the Committee’s last plenary session in November, the United States proposed to delegate the work to a drafting group formed by all the countries that might sign the treaty, essentially a plenary without the civil society groups.

The American representative explicitly mentioned that it did not want to disclose its negotiating positions publicly to non-country representatives, referring to the Second Additional Protocol to the Cybercrime Convention as a precedent.

One point Washington might not have an interest in publicising is that it has been pushing for limiting the scope of the AI treaty only to public bodies, carving out the private sector in which American companies play a world-leading role.

Following the US proposal, the UK and Canada expressed support for the drafting group. Still, since during the plenary there was no formal approval of the motion via consensus as is usual practice, delegates assumed it was one among the many put forth during the discussion.

However, the Council of Europe secretariat included the US proposal in the minutes as if the decision had been taken. According to sources informed on the matter that spoke to EURACTIV under the condition of anonymity, the secretariat was pressured by the United States, as the institution has a diplomatic interest in getting its treaty signed by the US.

The United States Mission to the European Union declined EURACTIV’s request for comment.

The US unofficial position on upcoming EU Artificial Intelligence rules

The United States is pushing for a narrower Artificial Intelligence definition, a broader exemption for general purpose AI and an individualised risk assessment in the AI Act, according to a document obtained by EURACTIV.

This attempt to sneak in a decision without a proper discussion did not go unnoticed. Several NGOs, such as AlgorithmWatch, Fair Trials, Homo Digitalis and the Conference of International Non-Governmental Organisations (CINGO), mobilised against being excluded from the drafting process.

“This decision goes against the examples of good practice from the Council of Europe, the prior practice of the drafting of Convention 108+, and the CoE’s own standards on civil participation in political decision-making,” reads an email, seen by EURACTIV, these organisations sent to the participating countries.

At the plenary session on Tuesday 10 January, several countries, including Turkey, Poland, Slovenia, Austria, and Japan, took the floor asking for the participation of NGOs to be raised during the discussion on the working methods.

Consequently, on Wednesday, EU countries met behind closed doors with the European Commission, where national representatives were split on the matter. At that point, the Commission proposed to ask for a postponement until a common position was reached.

The move was interpreted as an attempt to delay the discussion further. As EURACTIV reported in October, the EU mandate corresponds to the upcoming AI Act. Hence, the Commission is interested in postponing the negotiations until the co-legislators have finalised a deal on the AI regulation.

EU Commission postponed AI treaty negotiations with further delays in sight

The European Commission has managed to postpone discussions on the Council of Europe’s treaty on Artificial Intelligence, with a view to obtaining a mandate to negotiate on behalf of the EU. Further delays might still follow as the bloc tries to get its act together.

As a result, on the following day’s plenary session, there was a consensus that only potential parties to the Convention would be admitted to the drafting group, excluding even the CoE’s bodies with a participatory status.

In the future, the drafting process and initial discussion will take place behind closed doors to avoid the specific position of countries becoming known. Then, the text will be shared with the NGOs, which will have the chance to comment in writing or orally at the next plenary.

However, civil society organisations fear their input would be easily disregarded at that stage. These concerns are nourished by the fact that these inputs would be discussed behind closed doors before moving to the next chapter.

The lack of transparency is another concern, as there will be no mention of which country proposed which changes. Moreover, the NGOs will not be able to see the final draft before it goes to the Council of Europe’s plenary assembly and Council of Ministers.

The drafting group started its work with the conclusions chapter, a rather odd part of the text but less controversial than other parts, where the participating countries are divided on whether to exclude AI systems developed for national defence and on the access to remedy.

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[Edited by Alice Taylor]

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