The Use of AI in a Pandemic Emergence: A Biolegal Discourse in the International Arena

Introduction

The pandemic has resulted in an emergency situation that has called into question not only health perspectives but also shared values ​and established rules. The critical question being how best to face up to this cultural rather than legal emergency?. The debate is widespread across every scientific field involving jurists, philosophers, politicians. The applications of AI in this situation are manifold and of particular concern is the use of so-called Artificial Intelligence in the pandemic. One of the most interesting aspects, from an ethical and legal point of view is the use of artificial intelligence systems in monitoring social distance, i.e. the ways in which, through cameras, robotic systems and augmented reality, it is possible to calculate the geometric distance between people, triggering alerts whenever violations occur. A perspective that many scientists are engaged with but which is not new in the literature that has evoked sophisticated theories, starting from Game Theory and which is currently being developed to support new products and technologies in the field [1]. On the level of legal theory these systems undermine the most important ideas about individual freedom and its limitation because they concern the basic behavior of people, that is, their physical contact with other people.

This paper proposes a novel approach to understand and manage this complex issue that includes cross-cultural and cross-jurisdictional [2], but primarily addresses cross- legal and cross-ethics perspectives.

A Cross-Legal Perspective: A Necessity

The law often governs emergency situations. Both codified Conceptual Paper

systems and Common Law systems have mechanisms for dealing with unexpected situations in terms of relationships between people, for example those of a contractual nature. Public emergencies are also regulated: for example, in the case of war, in which individual states and the international community apply precise rules, special courts and specific powers. What changes in the war against the pandemic?. The factual conventions and legal perspectives at the level of domestic and international law tend to be modified Fighting the pandemic is different from fighting another state or a coalition of states. The pandemic is a planetary emergency and this makes the approach to it critical in terms of the range of jurist’s instruments both national and supra- national that invariably presuppose a visible counterpart, an identifiable enemy to fight.

This emergency has also highlighted the lack of an effective international organization that can manage an event of this magnitude. The United Nations or the WHO does not have adequate power to impose a general directive on that of a single state. Therefore, the prevailing law must take cognizance of the new matter expeditiously in line with the gravity of the situation domestically and the wider international perspective. This is not a choice; it is a necessity.

International travel being a very good exemplar and the possibility of welcoming a traveler to a country or not: this is a national choice, but one that has international implications. Consider, for example, the civil liability of an airline that does not have appropriate safeguards in place to ensure that no passengeron their airline are positive or asymptomatic carriers. An intertwining of civil liabilities that makes ordinary instruments inadequate. For example, in Italian law the effectiveness of the application of article 2043 of the civil code and of extra-contractual liability in this situation is already difficult, but it becomes extremely difficult to use it in an international context because the international precedents concern cases of contagion liability that do not have the vagueness of Covid-19 infections (for example the Judgment of the European Court of Human Rights of 1 December 2009 -Appeal n.43134/95 -GN v. Italy, in a case of contagion following transfusions).

Therefore, only a cross-legal approach can support the efforts of politics but this approach still has to navigate the many difficulties in implementing a dialogue between autonomous and non-communicating legal systems. It is only with a historical reflection can we try to grasp connections and spaces for dialogue, especially between Civil Law and Common Law legal systems [3, 4].

AI and Law the Core of the Problem

One area where these legal problems become very serious is the use of Artificial Intelligence (AI) in a pandemic to control the population. In this case the problems of civil liability are linked to general and constitutional problems, from personal freedom to human rights, in the context of the use of AI tools in international spaces.

In this context, AI assumed a key role in the fight against the pandemic in 2020 [5, 6]. Control of people on a planetary level in the name of a general interest is simply impossible in the current legal system: there is a lack of adequate international agreements and uniform norms in national legal systems. Even the analogical application of rules used for other scenarios (for example war) becomes difficult because the legal problem, in the case of the pandemic, is intertwined with the protection of human rights and with the fundamental principles accepted in the Constitutions of many countries of the world.

In this emergency, the gap in fundamental values ​ has emerged in all its glory. Several Asian countries have adopted cyber-control measures of the population through geolocation and mass control based on facial recognition. Softer forms of control have been experimented with in other countries and are limited to telephonic controls.

All this teaches us two things. The first is that we need to work to align the international standard on fundamental rights and bridge the legal, but first of all, social and cultural gap among the countries of the world. The second is that the pandemic has changed many things and is also changing the law. The traditional categories of international law of treaties and rules posed by international organizations show its weakness when the international community is faced with a problem of this magnitude. It is necessary to reassess the guiding principles of these organizations to better equip them with more effective and immediate legal intervention tools that override national preferences in exceptional circumstances such as planetary emergency.