Zhu Mingting* Xu Chongli

School of Law, Xiamen University

Artificial intelligence technology can not only quickly empower economic and social development, but may also cause many ethical issues that are highly related to the characteristics and development of artificial intelligence technology itself. Because international soft law has the advantages of being flexible and efficient, low-cost, able to fill the gaps in hard methods, and conveniently distinguishing governance and stratifying response to ethical problems, its prosperity in the field of artificial intelligence ethical governance is almost inevitable. Under the current situation of developed international soft law and backward hard law in this field, facing the governance challenges of unstable cooperation among international soft law subjects and sometimes not being effectively implemented, the governance model has gradually shifted to a combination of soft and hard and "hardened" soft law, and "hardened" soft law , to improve the binding force and execution possibility of soft law. It is recommended to construct a "center-peripheral" model for mixed governance of international soft and hard methods and build an indirect execution mechanism to improve the international soft and law governance measures for artificial intelligence ethics.

Just like steam engines and electricity in the industrial era in the past, with the accumulation of data, the advancement of algorithms, and the improvement of computing power, artificial intelligence (AI) technology is reshaping the human world. The birth of (general pre-training conversion robot) is a phased progress in the development of intelligent robots. However, while replacing traditional search engines as an "encyclopedia" that makes human work and life more convenient, it also causes people to have ethical concerns such as students cheating with AI, data leakage, and value penetration of back-end technology operators.

In the context of the data intelligence society, there is a lack of international hard law for governing artificial intelligence ethics worldwide and international soft law is developed. At the same time, international soft law also faces the governance challenges of unstable cooperation among international soft law subjects and sometimes not effectively implemented. At present, no feasible suggestions have been put forward at home and abroad to address the governance difficulties in this field. Therefore, this article mainly examines the current status and challenges of the current international soft law governance of artificial intelligence ethics, and proposes countermeasures for international soft law governance.

The current situation of the international soft law governing artificial intelligence ethics

Ethical issues involved in artificial intelligence technology

The ethical issues involved in artificial intelligence technology mainly include but are not limited to: rationality issues, which refer to the negative effects on the application of an artificial intelligence technology being close to or exceeding the tolerable range. The problem of controllability refers to the fact that humans cannot control the lasting existence and future development direction of an artificial intelligence, so it is uncontrollable. Major social problems refer to irreversible social problems faced by humans related to the ethical governance of artificial intelligence. In terms of social ethics, changes in the data and information environment make people prone to falling into "information cocoon", "filtering bubbles" and "echo chamber effect". In terms of market economy, machine decision-making may produce "useless classes", and the hierarchical differentiation and solidification caused by platform monopoly will profoundly affect the cooperation model, competition relationship, employment relationship, all relationship (ownership) and related ethical norms in the market.

The necessity of soft law governance in the field of artificial intelligence ethics

As a comprehensive concept, the development of artificial intelligence ethics through governance is mainly manifested in two aspects:

1. Countries (regions) around the world have successively issued corresponding laws and regulations to regulate the ethics of artificial intelligence;

2. Governance agencies related to artificial intelligence ethics have been established to supervise the development of artificial intelligence.

The governments of various countries (regions) and their relevant departments issued legislation on artificial intelligence technology and data privacy that is highly related to artificial intelligence technology, which is legally binding; or international treaties and customary international law jointly formulated by the state, etc., for all The subject of international law has legal coercive power. At this time, the ethical principles of artificial intelligence are embedded in the above traditional legal tools, and will show a "rigid" side (hard method). At the same time, the complexity, uncertainty, unpredictability, and multi-subject characteristics of artificial intelligence jointly determine that when governing its ethics, the governance tools must adapt to the faster development rate and more benefits. Diverse technological uncertainty environment. It is difficult for very "rigid" rules and fixed-mode laws (hard methods) to keep up with the pace of technological development and it is difficult to flexibly regulate the social problems caused by artificial intelligence technology. With the development and maturity of artificial intelligence technology, facing the ethical problems caused by artificial intelligence, it is urgent to develop new methods of ethical governance of artificial intelligence under the guidance of scientific and technological ethical principles and norms.

The origins of international soft law in the field of artificial intelligence ethics

This article discusses the governance of artificial intelligence ethics in the field of international law, and does not involve the arguments and explanations in the field of comparative law. Therefore, this article adopts the general definition of international soft law - although it lacks the legal binding force of international law, it can produce practical effects in international practice. , international legal documents containing standards, norms, principles or other rules of conduct in the content. The origins of international soft law in the ethics of artificial intelligence in practice mainly come from international soft law documents issued by UNESCO () (Intergovernmental International Organizations) and formulated by other international organizations (non-intergovernmental International Organizations).

In order to promote all parties to abide by the ethical principles of artificial intelligence, UNESCO has actively formulated international soft law documents since 2017. The documents formulated in just four years have guided artificial intelligence technology to move towards "responsible"; while other international The international soft law document formulated by the organization can be traced back to 2005 (Table 1). Overall, concerns about human well-being (“benefiting mankind”), transparency and accountability are essential ethical elements for most international soft law documents at present. These documents focus on human dignity, as an important value of artificial intelligence ethics, and the human rights concept of concern for human well-being (“benefiting mankind”) runs throughout the documents.

Table 1 Specific provisions on the ethical principles of artificial intelligence in international soft law documents

The advantages of current international soft law governance

Compared with international hard law, the current international soft law has the governance advantages over artificial intelligence ethics:

International soft law has important advantages, is more flexible and efficient, and has low application cost.

Since most national governments (such as the United States, France, and Japan) are reluctant to hinder emerging technological innovation through preemptive supervision, governments will pass many suggestions, guidelines, codes of conduct, best practices, professional standards and other domestic soft laws, Try to solve the ethical problems of artificial intelligence at the realistic level. This is especially true at the international level. NGOs (such as the International Organization for Standardization) can flexibly and efficiently issue international soft law documents because they do not involve law enforcement mechanisms. The overall operating costs of these documents (international soft law) are lower than those of International hard method.

International soft law can supplement or improve hard law by filling formal legal gaps as a primary alternative or governance tool.

International soft law is not subject to the authorization of limited institutions and therefore can solve any problems arising from technology. And since it is not adopted by a formal legal body, it is not limited to a specific legal jurisdiction, but may have international applicability. For example, the Data Charter (Data) issued by the Institute of International Finance (IIF) will help supplement (rather than replace) national and regional legislation and regulations (domestic level) and international standards (international level).

International soft law is conducive to the distinction and governance of artificial intelligence ethics and layered response.

At present, the development of artificial intelligence technology is still in the stage of weak artificial intelligence, and most uses do not pose high risks, and we do not need to face similar ethical problems such as the "tram problem" of autonomous vehicles. For low-risk AI applications, soft laws developed under the opinions of companies, civil society groups, academic experts and governments will be a key approach to promoting innovation in line with ethical frameworks and principles. If soft methods can hierarchically regulate artificial intelligence ethics, they can also become an important supplement to hard methods for high-risk applications of artificial intelligence.

Challenges of the International Rule of Soft Law in the Ethics of Artificial Intelligence

Cooperation among international soft law subjects is unstable

Given the widespread use of artificial intelligence and its uncertainty caused by rapid future development, non-state actors only The credibility of commitments made by countries cannot be guaranteed with the help of international soft law. Transnational digital trade in digital products is a "prisoner's dilemma" game: when implementing digital trade measures at home, countries are citing the "security exception" clauses in the World Trade Organization (WTO) or Free Trade Agreement (FTA) rules, which is very likely to satisfy them. Domestic data ethics require; but at the international level, this means of safeguarding the interests of various countries is not conducive to the development of the global digital economic order. In fact, for each country, the optimal strategy is still to open up digital trade markets to other countries, while the country implements disguised trade protectionism for other countries. When individual rationality is contrary to collective rationality, it is easy for countries to violate relevant digital trade policy commitments in WTO or FTA rules, even if this is very likely to meet the domestic data ethics (including artificial intelligence ethics) requirements of various countries, so international hard methods are urgently needed to suppress it. Possible strategies for debauchery among countries. Although international hard law with compulsory effect was needed in the past, in the current mutual game of digital economy development among countries, how to give full play to the unique advantages of international soft law and complement the possible international hard law in the future and promote stable cooperation together in the face of mutual game of digital economy development among countries. , is a challenge facing the international soft law governance of artificial intelligence ethics.

International soft law sometimes cannot be effectively implemented

Even though accountability has been stipulated and described in the transnational ethical normative model, these soft laws lack formal and specific responsibility division systems and may not be effectively implemented in reality. For example, as the leading body for formulating the strategic guidelines and roadmap of the United Nations system-wide artificial intelligence governance body, the International Telecommunication Union (ITU) coordinates the participation of various United Nations agencies. Although it works closely with all relevant United Nations entities and, as appropriate, with external partners, it can only serve as an institutional coordination center for “promoting” coordinated implementation, with limited implementation capacity. In addition, Article 42 of the Recommendation on the Ethical Issues of Artificial Intelligence Regarding “Responsibility and Accountability”, “appropriate supervision, impact assessment, audit and due diligence mechanisms should be established”; among which the wording of “appropriate” itself does not have The implementation of compulsory enforcement is mainly guaranteed by the attractiveness of the provisions themselves and the commonality of the member states in terms of value and interest orientations. Relying solely on the above recommended and recommended soft measures, it is inevitable that soft laws sometimes fail to achieve effective implementation results.

Countermeasures of the international soft law governing the ethics of artificial intelligence

Constructing the "center-peripheral" model of international mixed governance of soft and hard methods

Proposed of the "center-peripheral" model

In the transnational legal system, international hard law ranks at the center of the system structure and together with international soft law defined as peripheral, forming a "center-peripheral" relationship at the international level. In the field of artificial intelligence ethics where international soft law is developed and hard law is backward, when establishing mechanisms for the expression, compensation and coordination of interests of all parties, international soft law has the advantages of governance functions and de facto effect, but this does not mean that it is a cause It is necessary and should be at a central position. Because soft law in the form of international norms and professional standards can exert influence without causing extraterritorial legal issues, and is not subject to government jurisdictions that promulgate laws and regulations. Market-oriented incentives to enterprises to formulate professional standards, which can enable global market consumers to to test the "good or bad" of the standard (Figure 1).

Figure 1 "Central-Operipheral" model of international soft and hard-to-hard governance

In most cases, the advantageous areas of international soft law are limited to transactional international relations, rather than basic international relations. This is determined by the strong technical and complex and changeable characteristics of global governance in artificial intelligence ethics. Compared with international hard law (traditional international law), international soft law is more flexible and convenient to be implemented. Because traditional international law regulates the "coexistence" relationship between countries such as diplomacy, territory, and recognition, the basic part of the "cooperation" relationship between countries related to artificial intelligence ethics that emerged later still relies on strong stability and reliable international hard law support. .

Therefore, international soft law sometimes only reflects transitional forms. Once the time is ripe, international hard law can still be put on the agenda for the regulation of artificial intelligence ethics. For example, the ethics of autonomous driving cars in artificial intelligence applications need to clarify the responsibility according to the different risk levels of traffic accidents that occur, and finally determine the damage caused by the decision-making and selection of autonomous driving cars, so that vehicle developers and producers can be used to determine the damage caused by the decision-making and decision-making of autonomous driving cars. , sellers and owners abide by the provisions of international hard laws with ethical principles. Because the time for self-driving vehicle products is similar or longer than the time for international hard-process rules, it is suitable for the hard-process fields of specific technologies where environmental changes are not too fast.

The essence of the "center-peripheral" model

In the field of governance of artificial intelligence ethics, the essence of the "center-peripheral" model composed of international hard law and international soft law includes four aspects.

1. The penetration of international soft law into domestic hard law, especially the transformation of technical standards through domestic law, is binding.

2. Governments that usually intend to develop artificial intelligence technology will encourage enterprises, user groups, non-governmental organizations, scientific research institutions and other diversified regulatory entities to actively participate in the discussion of artificial intelligence ethics by relevant industry associations, and promote the mutual influence and mutual influence of domestic soft and hard methods. Conversion.

3. Domestic enterprises, academic circles and intergovernmental international organizations in various countries can issue various documents on specific uses of artificial intelligence, in order to penetrate domestic technology governance preferences in various countries into international soft law and strive for the right to speak in the formulation of international standards.

4. Even if the influence of international soft law is evenly matched with international hard law, it will not affect the "center-peripheral" model of mixed governance of international soft and hard law from the overall perspective.

In summary, when enterprises and industry associations propose artificial intelligence ethical standards, we can refer to the specifications of technical standards on the same topics, especially universal technical issues such as transparency, accountability, and concern about human welfare. For example, the establishment of transparency principles in artificial intelligence ethics can adopt the "center-peripheral" model of mixed governance of international soft and hard methods: using hard method (law jointly formulated by the state) to solve higher-level and universality Strong data/algorithm/computing power/knowledge issues, and strong bottom-line constraints can improve the reliability of artificial intelligence; at the same time, using soft law (rules formulated by non-state actors) to solve the personalization of specific application scenarios Problem, allowing experts closer to technology than the legislature to develop a soft law framework, providing resilience specifications with certain fault tolerance space to guide the development of technology.

Build an indirect execution mechanism

Establish an international governance coordination committee

The Inter-Agency Working Group on Artificial Intelligence (IAWG-AI) is jointly led by UNESCO and the International Telecommunications Union to seek to address AI-related issues with Cooperation between relevant inter-agency and multi-stakeholder mechanisms. The working group focuses on the ethical field and can establish an international governance coordination committee on it, which can not only reduce the cost of establishing supervisory bodies but also increase international influence (Figure 2). If an international governance coordination committee is established in the field of artificial intelligence ethics, it will not only have the expert resources to maintain "technologically neutral" in the inter-AI working group, but also improve the affairs under the CEB and the High-level Committee on Programme issues. Governance efficiency.

Figure 2 United Nations artificial intelligence governance working mechanism and the idea of ​​building an indirect implementation mechanism

Informal and decentralized indirect implementation mechanisms

According to game theory, usually relying on the "self-implementation" of various soft law subjects does not require a third-party mandatory force to guarantee and centralized authority, supplemented by informal and decentralized execution mechanisms, such as benefits. The punishment, social pressure and market forces of the relationship can promote the de facto effect of international soft law.

Punishment from stakeholders increases the cost of violations

Generally, only those who are interested will follow the soft law by deterrent based on the deterrence of hard method tools. However, non-state actors punish those who do not comply with soft laws, increasing the potential cost of violating soft laws, and can also form positive deterrence in advance and achieve the purpose of prevention.

Suggestion: The International Governance Coordination Committee sets up penalties to increase the cost of violating soft law, and indirectly improves the enforcement of international soft law.

Social pressure to promote reputation mechanism

Subjects that violate international soft law are extremely vulnerable to pressure from the international community, and condemnation by multiple stakeholders such as states, transnational non-governmental organizations, intergovernmental organizations will discredit the violators. Some international soft laws are nominal soft laws and substantial hard laws, which greatly damage the economic or commercial interests of the offenders. Their punishment and sanctions are no less effective than international arbitration awards or judicial judgments that are unfavorable to them.

Recommendation: Reputation mechanisms revolve around the implementation of initiatives or rules by non-state actors, requiring punishment for countries that undermine the initiatives or rules, and commend countries that maintain the initiatives or rules, so that countries are forced to maintain the good reputation of the international community. Take on international community responsibilities by pressure.

Market forces give birth to "network effect"

When countries that accept uniform norms or standards aggregation and countries that use that norms or standards increase, the value of the norms or standards to them increases accordingly, thereby attracting more countries to spontaneously aggregate to form a "snowball effect". suggestion:

1. Establish a diversified participation path, promote multi-level international dialogues such as enterprises, industry associations, experts and scholars, and use scientific journals to share best practices to support standardization work;

2. The coordinated interaction, communication and collision of the ethical rules of artificial intelligence in different countries under different cultural backgrounds gradually form unwritten norms or standards (i.e., international practices) in international exchanges, thereby prompting countries to abide by the conventional artificial intelligence in international practice. Intelligent ethical norms.

Zhu Mingting is a PhD student in the 2020 degree in International Law School of Law, Xiamen University, and a research assistant at the Center for International Law Research, Cyberspace, Xiamen University. Main research areas: international law in cyberspace, data ethics, financial technology, etc.

Xu Chongli is a professor and doctoral supervisor at the School of Law of Xiamen University, and one of the academic leaders of the national key disciplines of international law at Xiamen University. Main research areas: international economic law, international private law and basic theories of international law.

Article originated from:

Zhu Mingting, Xu Chongli. International soft law rule of artificial intelligence ethics: status quo, challenges and countermeasures. Proceedings of the Chinese Academy of Sciences, 2023, 38(7): 1037-1049. DOI: 10.16418/j.issn.1000-3045.

Director-General Producer: Yang Liuchun