In Part I of the two-part blog series, we briefed our readers on the developments that took place in the first week of the Fifth Session of the Ad-Hoc Committee. In Part II of the series, we aim to capture the key discussion on provisions on (i) technical assistance, (ii) preventative measures, (iii) final provisions and (iv) the Preamble.
- Provisions on Technical Assistance:
The Chapter on Technical Assistance listed down provisions including, general principles of technical assistance, and provision setting the scope of technical assistance (Training and technical assistance, exchange of information, and implementation of the Convention through economic development and technical assistance). The provisions listed under this Chapter highlight the importance of technical assistance and capacity building for developing countries. Further, the provisions also lay down obligations and responsibilities on the State Parties to initiate, develop and implement the widest measure of technical assistance and capacity-building that includes material support, training, mutual exchange of relevant experience and specialised knowledge, among others.
All of the Member Countries and non-member Observer States were in agreement on the importance of the Chapter on technical assistance as an essential tool in combating and countering cybercrime. Technical assistance and capacity building helps in developing resources, institutional capacity, policies and programmes that help in mitigating and preventing cybercrime. A number of developing countries including, Iran, China, Nigeria, South Africa provided suggestions such as inclusion of “transfer of technology” and “technical assistance” to the existing text of the provisions in order to effectively broaden the scope of the chapter.
On the other hand, several developed countries, including the United Kingdom, Germany, Japan, Norway, and Australia emphasised that provisions relating to technical assistance and capacity building should be voluntary in nature and should avoid an overly prescriptive approach. It should rather be based on mutual trust, be demand-driven, and correspond to nationally identified needs and priorities. These State Parties accordingly provided alternative provisions on similar lines for the said Chapter for the consideration of Member Countries and the Chair.
The fifth session of the Ad-Hoc committee witnessed advanced discussions on technical assistance. Previously, technical assistance was discussed in the third session of the ad-hoc committee where discussions primarily revolved around the submission/ proposals from the Member Countries and non-member observer States. The CND presented ahead of the fifth session was well articulated and neatly organised into various provisions outlining the scope and mechanisms for technical assistance and capacity building to meet the objectives of the Convention.
- Provisions on Preventative Measures:
The provisions charted out under the Chapter on the Preventative Measures (Article 91 to 93 of CND) included general provisions on prevention, establishment of authorities responsible for preventing and combating cybercrime, and prevention and detection of transfers of proceeds of cybercrime. The chapter underscores the role of effective preventative measures and substantial impact of these measures in attaining the objectives of the proposed convention and reducing the immeasurable financial losses incurred by the States due to cybercrime.
Majority of State Parties signalled their support on inclusion of the chapter on Preventative Measures. In addition, non-member observer States and the Member States including European Union, Netherlands, United Kingdom, Australia, New Zealand, Canada, United States of America made interesting proposals on building effective and coordinated policies for prevention of cybercrime. These Member Countries argued in favour of broadening the current understanding of the term “vulnerable groups”, inclusion of the reference of international human rights, and advocated for developing, facilitating and promoting programmes and activities to discourage persons at risk of committing cybercrime.
There were interesting proposals aimed at strengthening cooperation between law enforcement agencies and relevant entities (private sector, academia, non-governmental organizations and general public) to counter gender-based violence and mitigate the dissemination of children sexual abuse and exploitation material online. The Member Countries also supported the proposal for Offender Prevention Programmes aimed at preventing (repeated) criminal behaviour among (potential) offenders of cyber-dependent crime.
Member Countries such as China submitted in favour of inclusion of classified tiered measures to provide multi-level protection schemes for cybersecurity. They also called for legislative and other measures to require service providers in their respective territory to take active preventive and technical measures.
The discussions undertaken in the fifth session of the Ad-Hoc committee were based on the text provided under the CND in the form of concrete provisions wherein various participants provided their detailed submissions on the text. The session also witnessed new proposals on technical assistance such as multi-level protection schemes for cybersecurity, 24*7 network, preventive monitoring to timely detect, suppress and investigate crimes by different Member Countries.
- Final Provisions
The Chapter on Final Provisions (Article 96-103 of the CND) listed crucial provisions namely, implementation of the Convention, relation with protocols, settlement of disputes concerning the interpretation or implementation of the Convention, and the signature, ratification, acceptance, approval and accession to the Convention. The CND also included provisions relating to the date of enforcement and procedure of amendment to the Convention.
The Member States and non-members observer States unanimously recognised the importance of the provisions listed under the Chapter on Final Provisions. The non-member observer State and the Member Countries, including the United States of America, Singapore, European Union and others, emphasised that the provision listed under the CND should be in conformity with the existing legal instruments and other existing regional conventions.
Member Countries such as China and Russia also recognised the importance of the existing legal frameworks. However, these countries further reminded the State Parties that comprehensiveness and universality are the twin goals of this Convention. Therefore, these countries stressed on the need for a “harmonious approach” or a “mutually reinforcing approach” regarding the same.
Beside this, the Member States also showcased divergent opinions on the minimum number of ratification required for the Convention to come into force. Member Countries, including USA, Norway, New Zealand, Singapore and Canada, have opted for at least 90 ratifications. Member Countries, including Russia, Egypt, China, Brazil, India, and Nigeria, have supported thirty ratifications. Beside these, Japan, United Kingdom, European Union, Ghana and others have opted for forty to fifty ratifications as reasonable for the proposed Convention to come into force.
The Member Countries supporting wider ratification have submitted that the support of a large number of Member States is indispensable for the success of the prospective Convention. On the other hand, the Member Countries supporting 30 ratifications have focused on the urgency of action in respect of cybercrime and therefore have supported a minimum number of ratifications to get the Convention up and running at the earliest.
Aside from this, Member Countries such as Mexico floated an interesting proposal to devise and incorporate Technical Annexes for ensuring that this Convention adapts and responds adequately to new and emerging challenges. The proposal garnered significant support from other State Parties.
- Preamble of the Convention
The CND tabled for the fifth session also featured the draft Preamble for the Convention. Member Countries and non-member observer States unanimously agreed on the inclusion of the Preamble to the prospective convention. The Member Countries maintained that the Preamble is an integral part of the convention and features the purpose and intention of the Convention.
At the same time, several Member Countries stated that the draft Preamble provided under the CND can be improved further in order to bring more clarity. The Member Countries accordingly provided a wide range of suggestions regarding the same.
Member Countries such as CARICOM, Norway, Dominican Republic, Kenya, Brazil, suggested that the Preamble should highlight the challenges and opportunities (negative economic and social implications) faced by the Countries with regard to information and communications technologies. Member States including Mexico, New Zealand, Singapore and others proposed the inclusion of – promotion of open, secure, stable, accessible and peaceful cyberspace, application of international law and human rights – in the Preamble of the CND.
Additionally, Member States suggested the inclusion of denying safe havens to those who engage in cybercrime, prosecuting cybercrimes, international cooperation, collection and sharing of evidence, recovering and returning proceeds of cybercrime, technical assistance and capacity building as key objectives of the Convention. The Member States also recognised the seriousness of use of information and communications technologies violence against women and girls and children; consequently, they called for the inclusion of these concerns in the Preamble of the prospective Convention.
The intensive discussion between the Chair, Member States and non-member observer States on various agenda items culminated in the text of the CND being revised. The views expressed will be taken into consideration by the Chair in developing a more advanced draft text of the convention, in accordance with the road map and mode of work for the Committee, adopted at its first session (A/AC.291/7, annex II).