CETS 225 and Digital Constitutionalism: The Asymmetric and Multilevel Governance of Algorithmic Power

Abstract

This commentary examines the Council of Europe's Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law (CETS 225), the first legally binding international treaty on artificial intelligence, opened for signature in Vilnius on September 5, 2024. It argues that CETS 225 articulates an asymmetric and multilevel constitutionalization of algorithmic power, grounded in a common international floor rather than in supranational judicial enforcement: a substantively rich dogmatic dimension, comparable in ambition to a charter of fundamental rights applied to the life cycle of artificial intelligence, is paired with an organically deferential institutional architecture that entrusts enforcement to domestic constitutional orders rather than to an international court. The commentary situates this asymmetry within three distinct claims that are often collapsed into one: the gap between normative ambition and institutional enforcement is real, its significance is relative to the comparator selected, and it may ultimately be functional rather than simply deficient, reflecting the institutional price of bringing constitutional traditions as different as those of the European Union, the United Kingdom, Israel, and the United States into a single normative structure. Drawing on Ingolf Pernice's theory of multilevel constitutionalism, the analysis reframes the relevant question from why CETS 225 lacks enforcement teeth of its own to whether effective constitutionalism for artificial intelligence can operate globally without a global constitutional authority. The commentary closes by applying this framework to Mexico's pending ratification, arguing that the Convention's normative floor can only be completed through domestic institutional practice.