Artificial intelligence and the fourth generation of human rights: some constitutional and legal nature of digital rights

Abstract

The article provides a constitutional and legal analysis of the impact of artificial intelligence on the content, structure and legal nature of the fourth generation of human rights. The study’s relevance stems from the fact that the traditional generational classification of human rights, developed by K. Vasak, increasingly requires reconsideration in view of the rapid expansion of algorithmic decision-making and the transformation of the object of legal relations, which is more often information in digital form. The genesis of the term «fourth generation of human rights» within Ukrainian legal scholarship is traced, from its first appearance in the mid-1990s to current doctrinal approaches, establishing that, despite an intensive scholarly discussion, there is a substantial gap in Ukraine between the doctrinal understanding of this generation and its normative entrenchment. The article substantiates a shift from the vertical model of human rights protection («state – individual») towards a horizontal model, since the primary source of infringements on digital rights today is private developers and controllers of algorithmic systems rather than the state. International legal standards for AI regulation are analysed, including the Council of Europe Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law, together with the doctrinal concepts of digital and algorithmic constitutionalism. Three structural elements through which artificial intelligence supplements the content of digital rights are identified: algorithmic transparency, the accountability of developers and controllers of algorithmic systems, and the right to an explanation of an algorithmic decision, regarded as a functional component of the right to information and the right to an effective remedy. Attention is paid to the correlation between digital rights and neurorights, including the debated question of their structure – a three-component model (mental privacy, mental integrity, cognitive liberty) versus a four-component systematisation that recognises neurorights as the most specific sub-institution of the fourth generation of human rights. It is concluded that the fourth generation of human rights is transitional in nature and should be viewed as an open, dynamic system of guarantees.