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Overview of Existing Rules
Existing international law on digital data is still at a burgeoning stage. With the
exception of EU law, there are few binding rules of international law
specifically dedicated to digital data. Indeed, most of the universal, regional or
bilateral instruments addressing digital data do so either through
interpretation or by subsuming digital data within a larger material scope, for
example within the right to privacy enshrined in human rights instruments.
Although international data protection frameworks exist since the ’70s through
the work of the OECD and the Council of Europe, most rules specifically
dedicated to digital data have been adopted in narrow contexts, mainly in the
fields of data protection, cybercrime and trade law (e.g., through the General
Agreement on Trade in Services, or the Agreement on Trade-Related Aspects
of Intellectual Property Rights). Contrary to the field of digital security, there is
a progressive shift from early non-binding (e.g., the OECD privacy guidelines)
toward biding instruments (e.g., the GDPR), even though most rules can still
be found in national law. At the international level, there are very few
instruments specifically dedicated to digital data. Most of the existing
international rules on digital data can be found in the regional law of the EU,
the African Union (e.g., the Malabo Convention, even though it has not yet
come into force), the Council of Europe (Convention 108 on data protection;
Cybercrime Convention), the OECD, ECOWAS and other regional or sub-
regional international organizations in Africa and Asia. Bilateral executive
agreements and treaties are also an important source of existing rules.
Overview of Existing Rules
There are few bindings international rules specifically dedicated to digital
security except in the field of cybercrime and in EU law. However, many
binding instruments not specifically dedicated to digital security are also
applicable. Non-specific rules on digital security can be found both at the
universal (e.g., prohibition on the use of force, international humanitarian law,
international human rights law, international space law, international
telecommunications law) and the regional level. Cybercrime and international
security are the two main domains in which we find provisions dedicated to
digital security. Relevant provisions can also be found in the instruments
dealing with terrorist activities. Trade law may also be increasingly concerned
with digital security, especially since the imposition of security requirements in
the field of ICTs may impose barriers to trade and violate existing trade rules.
Unlike the field of cyber security, information operations have not yet been
addressed by most normative initiatives, except from the perspective of
countering terrorist propaganda, and perhaps also from the perspective of
human rights law (especially the rights to free and fair elections and freedom
of information/access to information) and sovereignty (destabilization of
political regimes).
Overview of Existing Rules
AI may be one of the few digital subject areas where most States are willing
to adopt new instruments, as evidenced by the Recommendation on the
Ethics of AI adopted by UNESCO in November 2021. Attempts to regulate AI
are highly fragmented and vary depending on which of its technologies or
uses is taken into account. Existing international law on AI is at a very early
stage of development, even though there are multiple initiatives and
processes currently taking place with sometimes a certain degree of overlap
regarding their content. The limited number of specific international rules on
AI does not suggest, however, that AI is not regulated by international law.
Indeed, existing rules and principles of international law are relevant to
regulate AI technologies and their different uses. Yet, there is still a level of
uncertainty as to how exactly these rules could be applied to AI. There is no
binding rule of international law specifically dedicated to AI; there is, however,
an increasing number of non-binding norms adopted on AI in general or on
certain specific applications (e.g., on AI in health, labor markets and
education, on autonomous vehicles, on the use of AI in the criminal justice
sector, etc.).