Disability Discrimination in the Digital Realm: How the ICRPD Applies to Artificial Intelligence Decision-Making Processes and Helps in Determining the State of International Human Rights Law

Abstract

Scholars have identified challenges to protecting individuals from discrimination in contexts where organisations deploy artificial intelligence decision-making processes. While scholarship on ‘digital discrimination’ is growing, scholars have paid less attention to the impact of the use of artificial intelligence decision-making processes on persons with disabilities. This article posits that while the use of artificial intelligence technology can be beneficial for some purposes, its deployment can also construct a disability. The article demonstrates that the Convention on the Rights of Persons with Disabilities can be interpreted in a manner that confers a wide variety of human rights on persons with disabilities in the context when entities deploy artificial intelligence decision-making processes. The article proposes a test for digital discrimination based on disability and shows how it can be incorporated into the treaty through legal interpretation. Thereafter, it moves to developing an analogous general test for digital discrimination under international human rights law, applicable beyond a catalogue of protected characteristics.