Pub Date : 2022-11-09DOI: 10.1017/s0020589322000410
Ryan Abbott
Simon Chesterman has published a bold and ambitious book. It surveys the challenges posed by artificial intelligence (AI) and provides regulators a road map for how best to engage with those challenges to improve public welfare. AI regulation is an important and timely subject. Even in the short time since the book’s publication in 2021, AI has improved significantly in terms of its capabilities and adoption. Consider, for instance, the case of self-driving vehicles which Chesterman uses to illustrate liability issues—in 2022, the company Cruise launched the first commercial self-driving car service in San Francisco. Chesterman also examines AI generating creative works and copyright implications—again in 2022, commercially valuable AI-generated works are now being made at scale thanks to systems like DALL⋅E 2. The view that it is premature to be regulating mindful of AI now appears Luddite. Chesterman makes a good case for why AI is worthy of special regulatory consideration. While AI has been around for decades, and other frontier technologies may also not fit seamlessly into existing governance frameworks, Chesterman argues that modern AI is disruptive due mainly to its speed, autonomy and opacity. For example, historically court filings, while public documents, were kept ‘practically obscure’ due to an overwhelming number of court filings and high search costs. AI now allows just about anyone to search these filings in moments. This has major practical implications for privacy, even though the underlying public nature of court filings has not changed. As another example, facial recognition in public spaces by law enforcement is an ancient practice. But the ability of AI simultaneously to track every person in a public space and use that information to determine someone’s political affiliations (based on the locations they visit and the purchases they make) has similar—and worrying —privacy implications. Chesterman examines how existing laws deal with AI, and how these laws might change. While most of the English literature on AI regulation is rooted in American and European approaches, Chesterman’s book usefully engages with Asian, and particularly Chinese and Singaporean, regulatory efforts. He argues that the primary responsibility for regulating AI must fall to State governments, which can do so by leveraging responsibility, personality and transparency. For instance, States must ensure appropriate responsibility for the acts and omissions of AI, which can involve special product liability rules, insurance schemes and preventing the outsourcing of liability. Chesterman argues against legal personality for AI systems, but notes that it may be necessary in the future depending on how technology evolves. He also engages with the explainability and transparency of AI systems and decision-making, and how these can be supplemented with tools like audits 272 International and Comparative Law Quarterly
{"title":"We, the Robots? Regulating Artificial Intelligence and the Limits of the Law by SIMON CHESTERMAN [Cambridge University Press, Cambridge, 2021, 310pp, ISBN: 978-1-31-651768-0, £29.99 (h/bk)]","authors":"Ryan Abbott","doi":"10.1017/s0020589322000410","DOIUrl":"https://doi.org/10.1017/s0020589322000410","url":null,"abstract":"Simon Chesterman has published a bold and ambitious book. It surveys the challenges posed by artificial intelligence (AI) and provides regulators a road map for how best to engage with those challenges to improve public welfare. AI regulation is an important and timely subject. Even in the short time since the book’s publication in 2021, AI has improved significantly in terms of its capabilities and adoption. Consider, for instance, the case of self-driving vehicles which Chesterman uses to illustrate liability issues—in 2022, the company Cruise launched the first commercial self-driving car service in San Francisco. Chesterman also examines AI generating creative works and copyright implications—again in 2022, commercially valuable AI-generated works are now being made at scale thanks to systems like DALL⋅E 2. The view that it is premature to be regulating mindful of AI now appears Luddite. Chesterman makes a good case for why AI is worthy of special regulatory consideration. While AI has been around for decades, and other frontier technologies may also not fit seamlessly into existing governance frameworks, Chesterman argues that modern AI is disruptive due mainly to its speed, autonomy and opacity. For example, historically court filings, while public documents, were kept ‘practically obscure’ due to an overwhelming number of court filings and high search costs. AI now allows just about anyone to search these filings in moments. This has major practical implications for privacy, even though the underlying public nature of court filings has not changed. As another example, facial recognition in public spaces by law enforcement is an ancient practice. But the ability of AI simultaneously to track every person in a public space and use that information to determine someone’s political affiliations (based on the locations they visit and the purchases they make) has similar—and worrying —privacy implications. Chesterman examines how existing laws deal with AI, and how these laws might change. While most of the English literature on AI regulation is rooted in American and European approaches, Chesterman’s book usefully engages with Asian, and particularly Chinese and Singaporean, regulatory efforts. He argues that the primary responsibility for regulating AI must fall to State governments, which can do so by leveraging responsibility, personality and transparency. For instance, States must ensure appropriate responsibility for the acts and omissions of AI, which can involve special product liability rules, insurance schemes and preventing the outsourcing of liability. Chesterman argues against legal personality for AI systems, but notes that it may be necessary in the future depending on how technology evolves. He also engages with the explainability and transparency of AI systems and decision-making, and how these can be supplemented with tools like audits 272 International and Comparative Law Quarterly","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48561572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-08DOI: 10.1017/s0020589322000434
P. Morris
useful concepts for risk management, addressing the morality of automated decision-making and evaluating delegation of authority to AI. Finally, Chesterman considers where existing rules and regulatory bodies come up short. He focuses on the weaponisation and victimisation of AI. For this, he argues that an international legal approach and harmonisation is needed to adequately regulate technologies like lethal autonomous weapons. He posits a hypothetical International Artificial Intelligence Agency modelled after the post-Second World War agency to promote peaceful uses of nuclear energy. Chesterman also examines AI being used in regulation, including in judicial processes, and even using it as a means to regulate itself. Ultimately, he concludes there should be a procedural guarantee of transparency and a substantive norm of maintaining human control—both to constrain AI activity and ensure appropriate responsibility. Chesterman’s regulatory roadmap is one worth following. Hopefully, human regulators agree, before the artificial regulators arrive.
{"title":"Fairness and Rights in International Criminal Procedure by Sophie Rigney [Edinburgh University Press, Edinburgh, 2022, 243pp, ISBN: 9781474466301, £85.00 (h/bk)]","authors":"P. Morris","doi":"10.1017/s0020589322000434","DOIUrl":"https://doi.org/10.1017/s0020589322000434","url":null,"abstract":"useful concepts for risk management, addressing the morality of automated decision-making and evaluating delegation of authority to AI. Finally, Chesterman considers where existing rules and regulatory bodies come up short. He focuses on the weaponisation and victimisation of AI. For this, he argues that an international legal approach and harmonisation is needed to adequately regulate technologies like lethal autonomous weapons. He posits a hypothetical International Artificial Intelligence Agency modelled after the post-Second World War agency to promote peaceful uses of nuclear energy. Chesterman also examines AI being used in regulation, including in judicial processes, and even using it as a means to regulate itself. Ultimately, he concludes there should be a procedural guarantee of transparency and a substantive norm of maintaining human control—both to constrain AI activity and ensure appropriate responsibility. Chesterman’s regulatory roadmap is one worth following. Hopefully, human regulators agree, before the artificial regulators arrive.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46939908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-08DOI: 10.1017/S0020589322000458
B. Mayer
Abstract Courts and scholars have interpreted open-ended legal norms as imposing due diligence obligations on States and other entities to mitigate climate change. These obligations can be applied in two alternative ways: through holistic decisions, where courts determine the level of mitigation action required of defendants; or through atomistic decisions, where courts identify some of the measures that the defendant must take. This article shows that, whilst most holistic cases fail on jurisdictional grounds, atomistic cases frequently succeed. Overall, it is argued that atomistic litigation strategies provide more realistic and effective ways for plaintiffs to prompt enhanced mitigation action.
{"title":"PROMPTING CLIMATE CHANGE MITIGATION THROUGH LITIGATION","authors":"B. Mayer","doi":"10.1017/S0020589322000458","DOIUrl":"https://doi.org/10.1017/S0020589322000458","url":null,"abstract":"Abstract Courts and scholars have interpreted open-ended legal norms as imposing due diligence obligations on States and other entities to mitigate climate change. These obligations can be applied in two alternative ways: through holistic decisions, where courts determine the level of mitigation action required of defendants; or through atomistic decisions, where courts identify some of the measures that the defendant must take. This article shows that, whilst most holistic cases fail on jurisdictional grounds, atomistic cases frequently succeed. Overall, it is argued that atomistic litigation strategies provide more realistic and effective ways for plaintiffs to prompt enhanced mitigation action.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43434379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-20DOI: 10.1017/s0020589322000379
Miles Jackson
Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.
{"title":"THE DEFINITION OF APARTHEID IN CUSTOMARY INTERNATIONAL LAW AND THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION","authors":"Miles Jackson","doi":"10.1017/s0020589322000379","DOIUrl":"https://doi.org/10.1017/s0020589322000379","url":null,"abstract":"Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138541194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.
{"title":"THE DEFINITION OF APARTHEID IN CUSTOMARY INTERNATIONAL LAW AND THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION","authors":"M. Jackson","doi":"10.2139/ssrn.4226592","DOIUrl":"https://doi.org/10.2139/ssrn.4226592","url":null,"abstract":"Abstract Despite recent and increasing attention to the wrong of apartheid in international politics, some basic definitional questions remain uncertain. This article seeks to delineate the definition of apartheid in international law. Its focus is on the prohibition of apartheid binding States in custom and the obligation in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. In both cases, the article shows that the Apartheid Convention of 1973 supplies the wrong's definition. Thereafter, the article addresses three key elements that will be central to determining an allegation of apartheid: its wrongful acts, its distinctive purpose requirement, and the issue of what constitutes a ‘racial group’. Finally, the article also draws attention to the wider importance of the prohibition of apartheid in the international legal system. International law marks with particular normative significance a set of practices entailing systematic and structural harms that need not involve violations of life or bodily integrity.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47407241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/s0020589322000380
Lottie Lane
Abstract Taking a law-and-governance approach, this article addresses legal certainty in international human rights law as it applies to artificial intelligence (AI). After introducing key issues concerning legal certainty, a comparative analysis of AI law-and-governance initiatives at the international, regional and national levels is undertaken. The article argues that many initiatives contribute to increased legal certainty and can partially compensate for some of the shortcomings of the international human rights law framework, but that further clarification is badly needed. This is especially true for the responsibilities of private businesses which are developing AI and the corpus of human rights beyond privacy and data protection.
{"title":"CLARIFYING HUMAN RIGHTS STANDARDS THROUGH ARTIFICIAL INTELLIGENCE INITIATIVES","authors":"Lottie Lane","doi":"10.1017/s0020589322000380","DOIUrl":"https://doi.org/10.1017/s0020589322000380","url":null,"abstract":"Abstract Taking a law-and-governance approach, this article addresses legal certainty in international human rights law as it applies to artificial intelligence (AI). After introducing key issues concerning legal certainty, a comparative analysis of AI law-and-governance initiatives at the international, regional and national levels is undertaken. The article argues that many initiatives contribute to increased legal certainty and can partially compensate for some of the shortcomings of the international human rights law framework, but that further clarification is badly needed. This is especially true for the responsibilities of private businesses which are developing AI and the corpus of human rights beyond privacy and data protection.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48504180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/s0020589322000392
{"title":"ILQ volume 71 issue 4 Cover and Front matter","authors":"","doi":"10.1017/s0020589322000392","DOIUrl":"https://doi.org/10.1017/s0020589322000392","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48331154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/S0020589322000355
Giulia Gentile, O. Lynskey
Abstract Four years following the entry into force of the EU data protection framework (the GDPR) serious questions remain regarding its enforcement, particularly in transnational contexts. While this transnational under-enforcement is often attributed to the role of key national authorities in the GDPR's procedures, this article identifies more systemic flaws. It examines whether the GDPR procedures are deficient-by-design and, if not, how these flaws might be addressed. The conclusions reached inform our understanding of how to secure effective protection of the EU Charter right to data protection. They are also of significance to EU law enforcement more generally given the increasing prevalence of composite decision-making as the mechanism of choice to administer EU law.
{"title":"DEFICIENT BY DESIGN? THE TRANSNATIONAL ENFORCEMENT OF THE GDPR","authors":"Giulia Gentile, O. Lynskey","doi":"10.1017/S0020589322000355","DOIUrl":"https://doi.org/10.1017/S0020589322000355","url":null,"abstract":"Abstract Four years following the entry into force of the EU data protection framework (the GDPR) serious questions remain regarding its enforcement, particularly in transnational contexts. While this transnational under-enforcement is often attributed to the role of key national authorities in the GDPR's procedures, this article identifies more systemic flaws. It examines whether the GDPR procedures are deficient-by-design and, if not, how these flaws might be addressed. The conclusions reached inform our understanding of how to secure effective protection of the EU Charter right to data protection. They are also of significance to EU law enforcement more generally given the increasing prevalence of composite decision-making as the mechanism of choice to administer EU law.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41866875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/S0020589322000331
Yan Xu
Abstract Value-added tax, the most common form of consumption tax in the world, operates on a destination principle to ensure it is levied only in the place of final consumption in cases of cross-border transactions. The international trade in services and intangibles through digital means poses two challenges: finding the place of consumption and collecting the tax when services supplied by businesses in one jurisdiction are instantaneously consumed by customers in another. This article examines these challenges and considers how unilateral action and soft international responses have so far failed to achieve consistent destination basis taxation. An alternative option would be to adopt a hard multilateral response that would overcome the limitations of unilateralism and soft-law approaches and achieve consistent destination basis taxation in the digitalised economy.
{"title":"A MULTILATERAL OPTION FOR VAT IN INTERNATIONAL TRADE?","authors":"Yan Xu","doi":"10.1017/S0020589322000331","DOIUrl":"https://doi.org/10.1017/S0020589322000331","url":null,"abstract":"Abstract Value-added tax, the most common form of consumption tax in the world, operates on a destination principle to ensure it is levied only in the place of final consumption in cases of cross-border transactions. The international trade in services and intangibles through digital means poses two challenges: finding the place of consumption and collecting the tax when services supplied by businesses in one jurisdiction are instantaneously consumed by customers in another. This article examines these challenges and considers how unilateral action and soft international responses have so far failed to achieve consistent destination basis taxation. An alternative option would be to adopt a hard multilateral response that would overcome the limitations of unilateralism and soft-law approaches and achieve consistent destination basis taxation in the digitalised economy.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42745862","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-01DOI: 10.1017/s0020589322000409
{"title":"ILQ volume 71 issue 4 Cover and Back matter","authors":"","doi":"10.1017/s0020589322000409","DOIUrl":"https://doi.org/10.1017/s0020589322000409","url":null,"abstract":"","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49405254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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