3rd Meeting of the third substantive session of the Open-Ended Working Group (OEWG)

Event report

The third meeting of the third substantive session of the Open-Ended Working Group (OEWG) on developments in the field of information and telecommunications in the context of international security dealt with the section on international law of the First Draft Report, changes in the structure of the report related to international law, as well as suggested wording for this section. Several main issues were discussed:

The role of 2010, 2013, and 2015 GGE reports in relation to the OEWG report

The states discussed whether their work and the OEWG report builds on the consensus reached in previous GGE reports, the UN GA resolution A/Res/70/237, and A/RES/73/27. In particular, whether the references to these documents should be specifically mentioned in the text of the OEWG report. 

The United States, the European Union and its member states, Japan, Ecuador, Germany, Romania, Ireland, Peru, Chile, Switzerland, the Netherlands, and others voiced an understanding that the OEWG report is not starting from scratch and that it should not walk back any of the previous consensus agreements. With this in mind, these states made recommendations to include direct references to the 2015 GGE report in the text of the OEWG draft. In addition, these states reiterated that states agreed to be guided by the 11 norms under UN GA Resolution A/70/237, a consensus-based resolution, and the references should be made accordingly.

Venezuela, Nicaragua, and Cuba stated that the OEWG should not be hampered by the outcomes of previous GGEs in which not all member states were involved. These states believe that the reference to UN GA Resolution A/73/27 should be included in the OEWG draft, as it is the origin of the current OEWG.

Structure and hierarchy of the OEWG report

The states picked up a discussion from the second session on the proposal of China to rearrange the sections of the OEWG report and move the section on international law after the section on norms, rules, and principles of responsible state behaviour. This led to a debate on whether the rules, norms and principles are superior to international law regulations. Venezuela, Nicaragua, and Cuba supported China’s proposal. 

Switzerland, New Zealand, and other states called for keeping the current structure (international law section preceding section on norms, rules, and principles) and pointed out that the clarification of the relationship between international law and optional norms is essential. They stated that voluntary, non-binding norms, whilst important, do not replace or alter binding commitments under international law and it is, therefore, logical and reasonable for binding obligations to be outlined before moving to the norms of responsible state behaviour.

Applicability of international law

The core of the discussions was related to the applicability of international law and the UN Charter in their entirety, including international humanitarian law, human rights law, and customary international law.

South Africa, the USA, Germany, Australia, the European Union and its member states, France, Romania, Lichtenstein, Peru, Chile, Switzerland, New Zealand stressed the importance of the reaffirmation that a universal cybersecurity framework can only be grounded in the existing international law, including the Charter of the United Nations in its entirety, and respect for human rights and fundamental freedoms. These states also strongly support the wording of the OEWG report in the agreed conclusions and recommendations on international law that international humanitarian law applies in cyberspace. The Czech Republic specifically addressed the applicability of international humanitarian law and supported the Comments of the International Committee of the Red Cross that international humanitarian law ‘neither encourages militarization nor legitimises resort to conflict in any domain’ and should not be construed as such.

The Netherlands and Ireland specifically pointed out the need to include human rights law in the OEWG draft.

Japan, Romania, the United States, the Netherlands, and others reiterated the need to include all the principles of international law in the text of the OEWG report (par. 24 of the First Draft), including principles as stated in the UN Charter and principles of international humanitarian law of humanity, necessity, proportionality, and distinction.

The states further asked for moving certain obligations of states, such as the obligation not to use proxies to commit international wrongful acts,  attribution issues (Germany, Philippines, Lichtenstein), the obligation of due diligence (Philippines), the right to self-defence in the meaning of Art. 51 of the UN Charter (the Netherlands, Japan) from the discussion section of the First Draft Report to the conclusion section. Lichtenstein also pointed out that the accountability of the states for internationally wrongful acts is not sufficiently covered in the First Draft Report. 

The need for new legal instruments

Venezuela and Nicaragua called for reference to the future possibility of a new legally binding instrument in the main part of the OEWG report. Peru called for the mention of a multilateral legally binding instrument that would be the result of inclusive, participatory, and transparent negotiations among all member states. Romania pointed out that the new legally binding instrument is an aspiration of some states and should therefore be included in the discussion sections of the OEWG report. The United States and Japan aligned with the Republic of Korea’s view that new legally binding obligations are unrealistic, given the pace of technological development.

Other issues

In addition to the above, the states debated tech neutral solutions, the need for a deeper understanding of the way international law is applied in cyberspace, and whether and how the UN Secretary-General will be informed on these developments, and whether the submissions of states in these processes should be voluntary. India and Egypt reiterated the critical importance of trustworthy supply chains and warned of associated risks. The states also touched on the proposals for the continuation of the OEWG and the role of the UN.