By Ashley Deeks
It is a given that China is deeply committed to becoming the world leader in artificial intelligence (AI). News reports highlight a range of ways that China is deploying AI for purposes of domestic social control, including in ways that liberal democracies should find disturbing. As I—and a number of other Lawfare contributors—have discussed (here, here, here and here), this includes the use of AI-powered facial recognition software in omnipresent video cameras on city streets, in apartment entrances and in malls. China is also committed to developing AI technologies for use by its military.
But not all of China’s focus on AI is centered on developing tools that overtly advance its national or domestic security goals. Like some U.S. companies and law firms, China is also seeking to build what’s called “law tech” or “legal tech.” Law tech generally refers to technologies such as AI and machine learning that legal actors—mostly big law firms, but also courts and judges—deploy in a way that either facilitates or supplants traditional human-based legal work. I discussed these issues and how they implicate U.S. interests in my recently published paper, “High-Tech International Law.”
China is aggressively building and deploying law tech: In 2018, 51 percent of all legal technology patents were filed in China. Its motivations for actively pursuing law tech include compensating for the relatively small number of lawyers relative to its population and encouraging judges to decide similar cases similarly. In December 2019, the Supreme People’s Court issued a policy paper stating that “China is encouraging digitization to streamline case-handling within its sprawling court system using cyberspace and technologies like blockchain and cloud computing.” Courts have developed a system to “push” similar cases to the deciding judge for reference (although judges have complained that the system is not yet precise enough) and a system that reviews draft judicial opinions and warns judges of “abnormal judgments.” In April 2020, courts in Shanghai began to use AI systems to perform work formerly assigned to courtroom clerks, including transcribing case notes and presenting digitized evidence. China even established “internet courts” in which AI-powered “judges” decide internet trade and copyright cases, while a human judge supervises.
Of course, the Chinese government is not the only actor interested in law tech. The United States hosts a range of law firms and tech companies that are developing and employing AI-powered tools for tasks such as drafting and reviewing contracts, resolving low-value disputes, and predicting which arguments will be persuasive to particular judges. For example, companies such as LawGeex use machine learning to facilitate contract review; the company claims that its algorithms are both faster and more accurate than human lawyers. A Stanford student famously created DoNotPay, an AI system that helps you contest your parking tickets and sue robocallers. And a company called Casetext has developed an AI tool that uses information contained in litigation documents to suggest relevant cases. As the website Artificial Lawyer notes, however, “what sets China apart from Western countries is that the advancement of Chinese legal tech is largely state-backed, as can be seen from the founding of internet courts and the progressive integration of legal tech into judicial processes.”
So, what will happen when China’s interest in law tech turns outward and expands to international law? It is possible to envision a wide range of ways that China—and other states, including the U.S.—could start to deploy law tech to help negotiate international agreements, adjudicate international disputes and unearth state practice that helps to create (or modify) international law. The U.S. government should start thinking now about what those applications might look like and how foreign governments might use them in ways that cut against U.S. foreign policy goals. Otherwise, U.S. international lawyers may find themselves outmatched by their Chinese counterparts—either directly, when sitting at the negotiating table with them, or indirectly, as Chinese diplomats and lawyers use these tools in multilateral settings. Further, unless U.S.—and other states’—international lawyers begin to explore these tools today, they will face a steep learning curve in the future when they try to catch up to those who embraced the tools early.
In my paper, I identify ways in which government lawyers could bring “high tech” tools to bear in the international law setting. For example, these tools can help states identify their negotiating partners’ preferences in advance by performing sentiment analysis on a vast array of U.N. documents. Or the tools can help identify previously unknown state practice from within vast diplomatic archives. They might even help negotiators detect when other states’ diplomats are lying. Recognizing that these tools will serve as double-edged swords, I highlight some of the costs and benefits of using such tools and consider how the use of “law tech” on the international stage may complicate international relations among states. Here is the abstract of the article:
Data-driven algorithmic tools allow their users to process large amounts of data quickly, extract patterns from the data that humans cannot otherwise detect, and make reliable predictions. These tools have proven valuable in domestic legal practice, negotiations, and other fields closely related to international law. Yet governments and their international lawyers have ignored this new wave of tools as they conduct international relations.
This article argues that governments should begin to use these tools to their advantage in creating and implementing international law. These capabilities could support states’ decision-making as they negotiate treaties, adjudicate international legal disputes, and evaluate the status of customary rules. Even if international lawyers for governments in the United States and Europe are skeptical about the benefits of machine learning and big data, they must consider the possibility that states such as China will begin to deploy these tools in power-enhancing ways.
High-tech international lawyering will have important implications for international law and relations. Tools that are readily available and easy to use will serve as important equalizers for less powerful states, but more advanced technologies are likely to exacerbate existing power differentials. The article therefore offers ways that less powerful states and outside actors can counterbalance technology-driven power shifts that may undercut the enduring ambitions of international law.
As states begin to take AI more seriously, the number of interstate groups that are considering the implications of AI tools is on the rise. One context in which states have already extensively discussed the implications of AI is in the military setting, where some states seek to prohibit the use of lethal autonomous weapons. Although the use of AI in international law creation and adjudication will be less obviously controversial than lethal autonomous weapons, these tools have significant foreign policy implications. As a result, states and other interested parties may wish to use one of the newly created fora to consider the role of AI not only on the battlefield but also at the international negotiating table.
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