3.1. The Concept of a Legal Entity and the Problem of the International Legal Personality of Legal Entities
The international legal personality of artificial intelligence can be solved by considering the doctrine and practice related to the issues of international legal personality of legal entities. A legal entity is a historically established legal fiction with its legal personality, which differs from the legal personality of the participants of the legal entity. Solving the problem of the international legal personality of artificial intelligence using established approaches to the international legal personality of legal entities is more optimal than the development of completely new approaches. It should also be taken into account that there are very significant scientific developments on the international legal personality of legal entities.
At present, the trend for the participation of legal entities in international relations of a public nature has manifested itself. For example, legal entities apply to the European Court of Human Rights, mainly on property protection issues. The participation of legal persons is not limited exclusively to international relations of a powerless nature; they participate in international relations, which are understood in a broad sense as relations between states, relations with the participation of states and non-state actors, and relations between non-state actors in the international arena. The discussion of the international legal personality of legal entities, which will be considered below, has already started in the legal doctrine.
It should be noted that there is no unified concept of legal entities (juridical persons) in private international law. Numerous international treaties operate with the concept of a legal entity without disclosing its meaning.
An exception is the provisions of the Inter-American Convention on Personality and Capacity of Juridical Persons in Private International Law of 24 May 1984 (from now on referred to as the 1984 Inter-American Convention). According to Article 1 of the 1984 Inter-American Convention (Department of International Law 1984
), “juridical person being understood to mean any entity having its existence and being responsible for its actions, separately and distinctly from those of its members or organizers, and classified as a juridical person following the law of the place of its organization.” Thus, the Convention named two vital signs of a juridical person, which are: (1) operation in business independently and on its behalf; (2) independent responsibility for its obligations.
It can be seen that in the adoption of the 1984 Inter-American Convention, states could not unify the concept of juridical persons completely without reference to national law for defining this category.
It is no coincidence that states often avoid any definitions of legal entities in international treaties. The issue of the concept of a legal entity and of attributing certain entities to this category is at the discretion of national law because differences in the understanding of a legal entity and the definition of the circle of legal entities make it impossible at this stage to develop a unified concept of a legal entity at the international level.
In Great Britain, the theory of the legal entity began to take shape in the 19th century. A classic example is the Salomon v. Salomon case in 1897 (Dine and Koutsias 2007
). The essence of the case is that an entrepreneur named Salomon transferred his family business to a limited liability company. When the company was liquidated, the question arose whether Salomon was liable to creditors. In connection with this case, the point of view of Lord Macnaghten is cited, according to which the company has a separate legal personality, and the founders should not be liable for its debts unless otherwise provided by law.
The variety of legislative approaches to the concept of a legal entity has created significant difficulties in unifying this concept in international law. Each state defines the circle of legal entities in its way. In some states, legal entities include certain sets of property, i.e., objects of law.
What are the features of this domestic institution? Considering the content of the 1984 Inter-American Convention, the CIS MCC, and national legislation, there is no doubt that legal entities have an independent legal personality, i.e., they enter into legal relations on their behalf. A legal entity is an independent participant in both domestic and international relations. Their legal personality is separated from the legal person’s founders, members, and employees; the above legal entity acts as an independent law subject.
Therefore, a legal entity should be understood as a domestic institution that enters into legal relations on its behalf and is independently liable for its obligations. As a domestic institution with the above-mentioned signs, a legal entity comprises various entities, including business companies, public organizations, foundations, and institutions. In certain cases, state bodies may be vested with the rights of a legal entity. For this paper, the category of a legal entity also considers the delimitation from other subjects of international law, as it is determined that a legal entity is an exclusively domestic institution.
The legal status of legal entities in international private law is not a subject of discussion. Legal entities are traditionally recognized as the main subjects of private international law, and their legal personality is not questioned.
However, currently, a trend has appeared to recognize the legal personality of legal entities in public international law. This issue is already being discussed intensively in the legal doctrine. In particular, V. Lowe argued that, along with states, legal entities are subjects of public international law (Lowe 2004
). In support of his thought, he named four areas where legal entities are regulated in the framework of public international law, namely, human rights, state liability, diplomatic protection, and jurisdiction.
It should be noted that this position is not devoid of some justification. As international public law develops, it is not limited to the regulation of the activities of states. However, it contains provisions aimed at regulating relations with the participation of other actors. For legal entities, the situation has developed in the same way as for individuals. There are separate provisions in certain sectors and institutions of public international law that grant certain rights to legal entities in international relations. These provisions are developed and implemented by states.
It should be noted that concerning legal entities, there is a trend of granting certain rights to them and a trend of imposing duties on them. As regards, for example, the institution of human rights protection in public international law, legal entities are not just users of certain rights, but the effort has been made to impose legal obligations on them in the field of human rights. An example is the Global Compact.
At the World Economic Forum in Davos, UN Secretary-General Kofi A. Annan called on world business leaders to adopt and implement the Global Compact (United Nations 1999
The Global Compact is not a legally binding document. It is based on the voluntary implementation of its provisions.
If the Global Compact were a binding document, the supporters’ position of recognizing the legal personality of legal entities in international public law would become much stronger.
William Thomas Worster proposed a concept of functional international legal personality of non-state actors. (Worster 2016
Wladyslaw Czapliiski does not recognize the international legal personality of groups of individuals (Czaplinski 2016
The issue of the legal personality of legal persons is discussed intensively in the Polish legal doctrine. The essence of this discussion is outlined in the monograph by Karol Karski
). Karol Karski pointed out that in Poland, W. Góralczyk was a firm supporter of recognizing individuals and legal persons of domestic law as subjects of international law. Other authors, including Z. Czachur, S. Sawicki, and J. Tyranowsky, shared the same views. W. Góralczyk and S. Sawicki relied on the definition. The subject of international law is the one who has the rights and obligations arising directly from international law. K. Karski also adopted this definition. At the same time, he pointed out that legal persons as subjects of international law are secondary to the will of states. The states establish them or give them a certain status (Karski 2009
It should be noted that researchers who support the concept of the international legal personality of legal entities do so with certain reservations. Namely, they recognize either a partial legal personality (for certain branches of international law) or a secondary legal personality (legal persons are vested with international rights and obligations at the will of states).
The international legal personality of transnational corporations is considered separately (Nowrot 2006
; Muhvic 2017
In our opinion, recognizing the legal personality of a legal entity in international public law is not essential. Regardless of whether legal entities are subjects of international public law, their existence has already created some problems for international public law. The status of a legal entity in public international law can be explained from the standpoint of the theory of indigénat. According to this theory, individuals do not have rights in international cooperation but may only enjoy the state’s benefits.
The same is also true for legal entities. They act as users of the rights that are granted under international public law. In any case, the rules addressed to legal persons are developed by states. In particular, states have imposed certain environmental liability for legal persons, established rules on appeals to some international courts, exercised their diplomatic protection, settled the status of private security companies in international humanitarian law, etc. Thus, states establish the rules of conduct for legal persons in the system of international relations. Based on the above, one may assert that a legal entity is not subject to public international law but is indigénat to certain provisions of public international law.
3.2. The Prospects for the Application of the Concept of International Legal Personality of Legal Entities to the Legal Personality of Artificial Intelligence
It should be noted that artificial intelligence is not an autonomous information and communication system, and machine learning is impossible without human involvement. The issue of the international legal personality can only be considered concerning the autonomous ‘general’ artificial intelligence.
The absence of an autonomous ‘general’ artificial intelligence explains why international law experts scarcely address the problem of artificial intelligence. Researchers in the field of international law mainly consider public-legal aspects related to artificial intelligence: the use of artificial intelligence for military purposes and the problems of international law that arise in this regard; the impact of artificial intelligence on the global world order; and the protection of human rights when using artificial intelligence.
At the same time, the problem of the legal personality of artificial intelligence may arise in the activities of UNESCO, which has started work on an international document on the ethical aspects of the use of artificial intelligence.
Prospects for the recognition of the international legal personality of artificial intelligence can be determined, taking into account the establishment of the subject responsible for actions committed using artificial intelligence. UNESCO offers a definite solution to the issue of responsibility.
The first draft of the Recommendation on the Ethics of Artificial Intelligence (outcome document) contains a provision that the ethical component is characteristic of all stages of AI system life cycle, from research, design, and development to deployment and use, including maintenance, operation, trade, financing, monitoring and evaluation, validation, end-of-use, disassembly, and termination. The concept of actors in the AI system life cycle is introduced as follows: “any actor involved in at least one stage of the AI life cycle, and can refer both to natural and legal persons, such as researchers, programmers, engineers, data scientists, end-users, large technology companies, small and medium enterprises, startups, universities, public entities, among others.” Thus, the responsibility extends to all subjects related to the development and use of artificial intelligence.
The content of the responsibility of actors in the AI system life cycle differs in certain specifics. The First draft of the Recommendation on the Ethics of Artificial Intelligence (outcome document) covers two categories: values and principles. The values are close to the goals of legal regulation. The draft recommendation formulation of the principles that must be observed when using artificial intelligence is directly related to such regulation.
Some principles play a key role in forming the mechanism of the responsibility of actors in the AI system life cycle. For example, the content of the safety and security principle includes the following provision: “Unwanted harms (safety risks) and vulnerabilities to attacks (security risks) should be avoided throughout the life cycle of AI systems to ensure human and environmental and ecosystem safety and security. Safe and secure AI will be enabled by the development of sustainable, privacy-protective data access frameworks that foster better training of AI models utilizing quality data.”
In general, the First draft of the Recommendation on the Ethics of Artificial Intelligence (outcome document) imposes responsibility on each actor involved in any stage of the AI system life cycle, depending on the nature of the violation committed by a certain actor. Actors in the AI system life cycle are understood as legal entities and individuals. This document does not offer a legal fiction regarding artificial intelligence, the conditional subject of law.
If the international legal personality of artificial intelligence is brought up for discussion in the future, there will be two possible options for its solution.
The first option is that states that grant the rights of legal entities to certain objects of civil rights in their civil law may grant the rights of a legal entity to artificial intelligence. In this case, the legal personality of artificial intelligence will be recognized in private international law. The international legal personality of artificial intelligence can be recognized only at the level of international public law and only by states through an international treaty or an international custom. At the same time, the practice of states that is a generally recognized norm of international law makes it possible to establish a certain international custom.
Following the second option, states may conclude that artificial intelligence will be granted the rights of a legal entity or rights sui generis, a new legal fiction, by participating in discussions organized by various international organizations. Given the difficulties in developing and agreeing on an international treaty, the consensus of states can be stated in a UNESCO or UN act. In the future, states may implement the resolution of an international organization into their legal systems.