The “Responsibility to and for Progress” in International Law

How do we achieve a responsible approach to progress and its consequences? This old question of humankind has been given new momentum by recent advances in artificial intelligence (AI): Numerous experts have signed an open letter calling for a moratorium on large-scale AI experiments. While the merits of such a moratorium may be debatable, the fundamental need to address and regulate AI and other emerging technologies at the international level is not. In fact, the regulation of progress is not just a matter of necessity, but of responsibility. In the past, states have fulfilled their progress-related responsibilities by acting as catalysts or inhibitors of scientific and technological developments, depending on the states’ assessment of the potential benefits and risks. As I will show, states are also legally bound by a progress-related responsibility, which may be described as “responsibility to and for progress”. This beneficial or healing relationship between progress and responsibility is the key to address the challenges of progress and its consequences.

The Race Between Progress and (International) Law: A Familiar Challenge

Progress in the sense of an improvement in scientific, technical and technological knowledge is a dynamic phenomenon that is accompanied by great uncertainty. No one, not even experts in a specific field, can anticipate all the potential benefits and risks of a respective development. For this reason, and due to the speed of progress, it is challenging for states to decide whether and how to promote or restrict a specific development through regulations.

However, the difficulty of the rather slow possibility of legal regulation to keep up with the almost unbridled progress, the so-called “pacing problem”, is not a new phenomenon. This can be seen by the emergence of railway technology, which was nothing short of a revolution. A revolution that changed not only the political and legal landscape of the world, but also the common and legal meaning of time and space, by enabling cross-border connectivity at a previously unimagined speed (Allenby, p. 3 et seqq.). From a historical point of view, progress had a “speed advantage” in the truest sense of the word. Nevertheless, the legislation was able to keep up, which is why railway technology is now fully regulated. This applies not only to national law and its comprehensive rules on traffic, insurance and liability issues, but also to international law. The global spread of technological progress and the industrialisation it enabled went hand in hand with the emergence of International Unions and Organisations. The associated increase in international cooperation, in particular through rules on standardisation, has both legally constrained and facilitated progress.

Even this simple example shows that confrontation with new technologies is a familiar challenge for state regulation. While states must always strike a balance between promoting and restraining progress, regulation itself is neither an unknown nor an impossible task, even at the international level.

Regulating Progress: A Question of Responsibility

With the increasing use and spread of AI and emerging technologies, the world is facing a new (industrial) revolution. However, unlike in the past, many states seem to have opted for a “wait-and-see approach” in terms of an international coordination and cooperation in progress regulation. Even though there are numerous proposals for addressing the “pacing problem”, like the AI Act of the European Union, there is still no comprehensive international regime for emerging technologies or scientific advances. Against the historical background of the mutual influence of progress and law, it seems surprising and leads to the following question: Have the states in the past only taken responsibility by themselves or were and are they legally bound by a specific progress-related responsibility?

Starting Point: The Nuclear Weapons Advisory Opinion

In accordance with the Lotus principle (The Case of the S.S. “Lotus”, para 44), the ICJ ruled in the Nuclear Weapons Advisory Opinion that, in the absence of explicit restrictions under international law, states are in general free to develop and use even high-risk technologies (paras 21, 51 et seqq. and 97). However, this sovereignty in the (non-)exercise and (non-)regulation of progress is not unlimited. The famous Trail Smelter case together with the fundamental principles of environmental law, such as precaution and prevention, expressed in the Rio Declaration, illustrate that states must take the transboundary consequences of their actions into account. This is crucial to further shape a progress-related responsibility, because technical developments can also have transboundary effects, such as an increase in emissions or radiation.

Nevertheless, existing international treaty law should also be considered to determine the legal basis for the responsible regulation of progress. The analysis will focus on the Charter of the United Nations (UN-Charter) and human rights. While the UN-Charter forms the central source of law for the international community, human rights can be understood as membership rights in this community. Therefore, the UN-Charter and human rights are the two main pillars for a progress-related responsibility.

Progress as Central Part of the UN Long-Term Strategy

The first pillar of a progress-related responsibility is formed by the UN-Charter. The latter takes a two-pronged approach to securing peace: While itfocuses on “negative peace” in the short term by prohibiting the use of force, “positive peace”, i.e. securing economic and social stability, forms the UN’s long-term strategy. Although scientific-technical progress is not explicitly mentioned, its promotion and regulation are an indispensable part of the UN’s long-term strategy. This is particularly emphasised by the General Assembly (GA) in the Friendly Relations Declaration as well as in the Declaration of the Use of Science and Technological Progress in the Interests of Peace and for the Benefit of Mankind. Moreover, there are resolutions, such as the Declaration on Social Progress and Development (Articles 3, 8, 13 and 24) and the Charter of Economic Rights and Duties of States (Articles 7, 9 and 11), which refer to the regulation of progress not only as a task, but as a responsibility of the states. Additionally, this responsibility is also visible in the UN-Charter itself. In there, the Preamble, Article 13 and Article 55 are important. Especially Article 55 establishes an inseparable link between “positive peace” and the promotion of progress. According to Article 56 this progress-related responsibility applies not only to the UN or its GA, but also to individual Member States.

Progress and Human Rights

Progress is a human-made phenomenon primarily driven by researchers or technicians, with consequences for the general population and the environment. Since individual rights can be affected on both sides, human rights are the second important pillar of the progress-related responsibility. This is also pointed out in Article 55(c) of the UN-Charter, which emphasises the importance of human rights for the UN’s long-term strategy. Human rights are both the basis and the limit of progress. States must protect the freedom of science while recognising that progress can have positive and negative impacts on other human rights, such as the right to life or health. Moreover, numerous human rights [e. g. Articles 9, 11 and 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)] make it clear that there is a close link between an adequate standard of living and scientific progress. However, particular attention must be paid to the “right to science” under Art. 15(1)(b) of the ICESCR. According to this, states must not only maintain the basis of and access to science, but also ensure that science is a benefit to people and does not harm them. In other words, states must not only ensure that progress “happens”, but also that it is implemented responsibly.

The “Responsibility to and for Progress”: Two Sides of the Same Coin

The regulation of progress is a central concern of the international community and its law. It is an ambivalent task that includes elements of promotion and restriction. This ambivalence may be described with the term “responsibility to and for progress”. The “responsibility to and for progress” concerns not only the area of AI development but all aspects of the anthropogenically modified world. This may be perfectly illustrated by the example of climate change, which is closely linked to progress. Responsibility concerning climate change does not only cover questions of liability for the consequences of progress and its emissions (“responsibility for progress”), but also the promotion of climate-friendly technologies or science in general (“responsibility to progress”). As contributing to progress in turn raises the question of how to deal with the consequences, both forms of responsibility are interdependent or two sides of the same coin.

The Beneficial or Healing Relationship of Progress and Responsibility

Altogether, states are bound by the “responsibility to and for progress” under international law. The responsibility-based approach emphasises the importance of human rights on the one hand, and the organisational link to the UN on the other hand. In this respect, it is positive that the UN Security Council recently held its first official meeting to discuss steps for a responsible approach to AI and similar technologies. Current progress in AI or other fields may represent a change in the economic and political landscape that is tantamount to a revolution. However, it should not be forgotten that, unlike in previous (industrial) revolutions, there is already an international legal framework to deal with this challenge: The “responsibility to and for progress”. In order to meet this responsibility, states must improve the exchange of information and the coordination of progress-related regulation within the framework of the United Nations. Ultimately, states must actively participate in the long-term goal of a comprehensive international regime for responsible progress. For this reason, the human rights and UN-Charter based “responsibility to and for progress” is the key to a sustainable and peaceful regulation of progress and its consequences.