African Union submits position on international law to OEWG

The African Union has submitted a Common African Position (CAP) on the Application of International Law to the Use of ICTs to the UN Open-Ended Working Group (OEWG) on security of and in the use of information and communications technologies 2021–2025.

According to the Special Rapporteur of the African Union on the Application of International Law in Cyberspace and Member of the AU Commission on International Law, the CAP comprises eleven sections, including a preamble and conclusion. Each section focuses on specific concepts, rules, or fields of international law related to cybersecurity. These include sovereignty, due diligence, non-intervention, peaceful dispute resolution, prohibition of force, international humanitarian law, international human rights law, and attribution of conduct to states. The CAP also includes a section on capacity-building, emphasising international cooperation and technical assistance in cybersecurity.

Except for the capacity-building section, each part starts with a restatement of foundational rules in the respective field of international law, followed by a discussion on their application in cyberspace. For instance, the section on sovereignty emphasises that states must respect territorial sovereignty, asserting that international law prohibits a state from enforcing authority on a foreign state’s territory in response to cyber activities. Similarly, the section on the prohibition of force highlights that certain cyber operations, such as those causing damage to critical infrastructure or military assets, may be considered a violation of the prohibition on the use of force under international law.

The Special Rapporteur also shared the trajectory of the process through which the CAP was developed, hoping that it may serve as a blueprint for other regional organisations who might be formulating similar statements.

The CAP resulted from a collaborative, multi-stage process involving various AU member states and institutions. Led by the AU Political and Peace and Security Council (PSC) and the AU Commission on International Law, it engaged officials from relevant AU Commission departments and various bodies related to cyberspace.

The drafting process had two stages: capacity-building and text development. The former involved training over 200 African diplomats and experts, addressing the challenge of limited expertise in cybersecurity within non-western states. The latter stage included expert feedback, leading to a draft unanimously adopted by the PSC.

An expert-level working group with inclusive representation refined the CAP with consensus achieved in Tunisia and final adoption in January 2024.