Ananya Moncourt & Sidharth Deb
Introduction
On April 1st 2022, the United Nations General Assembly’s (UNGA’s) First Committee on Disarmament and International Security concluded the week-long second substantive session of the second Open-Ended Working Group (OEWG) on the security of and in the use of information and communication technologies (ICTs). This process is the UN’s second OEWG involving all 193 UN Member States on matters relating to international cybersecurity. There have also been six prior UN Group of Government Experts (GGEs) on similar issues.
This post is the first of a three-part series which analyses key developments at the OEWG’s second substantive session in the period between March 28 and April 01, 2022. This piece outlines discussions on a key issue – multistakeholder engagement within the OEWG process.
Readers can view it as a follow up to CCG’s two-part blog series from December 2021 which analysed major international cybersecurity discussions (including the international normative framework) at the UN and India’s participation in these processes. Part 1 begins by providing an overview of the scope of the OEWG’s institutional mandate, the geopolitical background in which the second substantive session was held, and analyses key organisational developments relating to the modalities of multistakeholder participation at the OEWG. It reveals geopolitical differences and where appropriate, spotlights India’s interventions on such issues.
Institutional Mandate
The second OEWG was established by UNGA Resolution 75/240 adopted on December 31, 2020. The resolution describes ICTs as “dual-use technologies” which can be used for both “… legitimate and malicious purposes”. This language within the resolution is curious since this would mean that dual-use technologies are capable of being used in lawful and unlawful scenarios. This is a departure from how “dual-use technologies” are traditionally defined as technologies which have both civilian and military applications and use cases.
Keeping this in mind, the resolution presciently expresses concern that some States are building up military ICT capabilities and that they could play active roles in future conflicts between States. Given their potential threat to national security, Resolution 75/240 establishes a new OEWG for the period between 2021 and 2025 which must act on a consensus basis. The second OEWG is expected to build on the aforementioned prior work of the GGEs and the first OEWG. The OEWG has been assigned a broad substantive mandate which includes:
- Identifying existing and potential threats in the sphere of information security;
- further developing the internationally agreed voluntary rules, norms and principles of responsible State behaviour in cyberspace. This entails identifying mechanisms for implementation and, if necessary, introducing and/or elaborating additional cyber norms;
- developing an understanding of the manner in which international law applies to States’ use of ICTs;
- capacity building and confidence-building measures on matters relating to international cybersecurity;
- establishing mechanisms of regular institutional dialogue under the UN.
Resolution 75/240 specifies that aside from a final consensus report, the OEWG must submit annual progress reports before the UNGA. Relevant to this post, the Resolution also grants the OEWG with the power to interact with non-governmental stakeholders. The OEWG’s Organisational Session in June 2021, States agreed to a total of eleven substantive sessions, the first of which was held in the period of December 13 to December 17, 2021.
Geopolitical Background to Second Substantive Session
At the second substantive session in the last week of March 2022 discussions were hindered by ongoing geopolitical tensions arising out of the international armed conflict owing to the Russian invasion of Ukraine. Cyberspace has played a strategic role within the conflict and has spanned several cyber incidents and operations. This includes strategic information campaigns and online influence operations. Moreover, the conflict has observed strategic incidents and operations which targeted government websites and extended to strategic measures critical information infrastructures across both public and private sectors. Key incidents prior to the session include a prominent attack on a satellite broadband network which affected internet availability for users across different parts of Europe.
The tensions have extended even to technical internet governance bodies like ICANN where for instance, Ukraine made unsuccessful requests to prevent Russian websites/domains from accessing the global internet. And as has been widely reported, the conflict has led to sanctions against Russian financial operators from executing cross-border transactions via globally interoperable ICT systems like the SWIFT network.
Such geopolitical realities mean that the OEWG’s progress which is rooted in consensus was adversely affected. Let us now consider a central organisational issue for the OEWG i.e. modalities of stakeholder participation.
Modalities of Stakeholder Participation
The value of rooting multistakeholderism into internet, ICT and cybersecurity governance is well documented. Most ICT systems are owned, controlled, used and/or managed by non-governmental stakeholders across the private sector and civil society. Field expertise is also largely situated outside of governments. However, under the UNGA First Committee, cybersecurity processes like the GGEs and the first OEWG have operated using state-centric, even exclusive, approaches.
UNGA Resolution 75/240 attempts to buck this trend and grants the OEWG the authority to interact with interested/relevant stakeholders from private sector, civil society and academia. For context, the first OEWG was the first cybersecurity discussion at the UN to involve some limited informal consultations between States and other stakeholders. The final substantive report, dated March 2021, even describes rich discussions and proposals from the multistakeholder community.
Despite this being an improvement upon the GGE model, experts contended that the first OEWG lacked direct or structured multistakeholder involvement. The first OEWG’s dialogue was described as ad-hoc, inconsistent and isolated. Similarly, consultation opportunities at the OEWG were largely limited to an exclusive class of accredited organisations at the UN’s Economic and Social Council (ECOSOC). Stakeholders expressed concern that a repeat of this approach would exclude discipline related field experts, private operators, and other relevant stakeholders. In lieu of this, certain States, regional organisations, non-governmental stakeholders, and individual experts have shared written inputs to the OEWG’s Chair calling for the adoption of modalities which facilitate transparent, structured and formal stakeholder involvement. The proposal put forth the additional option for non-accredited organisations to indirectly engage by sharing their views with the OEWG. To further inclusivity the proposal suggested that stakeholders be allowed to participate in both formal and informal consultations through a hybrid physical/virtual format.
Unfortunately, this issue was not resolved at either the OEWG’s Organisational Session in June 2021, nor its First Substantive Session in December 2021. At these discussions Member States like the EU, Canada, France, Australia, Brazil, Germany, the Netherlands, UK, USA and New Zealand advocated broader, structured, transparent and formal involvement of stakeholders. The transparency component was a point of emphasis for these jurisdictions. This proposal focused on making it widely known, the grounds on which certain States objected against the inclusion of stakeholders within the OEWG. In opposition, the Sino-Russian bloc including Cuba, Iran, Pakistan and Syria opposed extended multistakeholder participation since they believe the OEWG should preserve its government-led character. Russia has proposed formal multistakeholder involvement be restricted to granting consultative status to ECOSOC accredited institutions. These States insisted that informal consultations and written inputs are sufficient means of incorporating wider stakeholder views.
Although in favour of multistakeholder involvement, India’s interventions advocated that the OEWG follow the same modalities as the first OEWG which as described earlier has been criticised on grounds of inclusivity.
Developments on Modalities at Second Substantive Session
As the issue carried forward into the second substantive session, geopolitical tensions have escalated as a result of the Russia-Ukraine conflict. Statements by Australia, Canada, USA, UK, EU, France, Germany and others called upon Russia to stop using cyberattacks and disinformation campaigns. States from this bloc proposed that the OEWG’s programme of work not move forward without an agreement on stakeholder modalities. Iran contended that such a decision would undermine the legitimacy of the OEWG process. Other allies like China, Russia and Cuba argued that stakeholder participation should not come at the cost of substantial discussions. These countries cited Resolution 75/240 as not mandatorily requiring the OEWG to include stakeholders. However, the NATO and other allies of the US argued that delays to their inclusion would undercut stakeholders’ ability to meaningfully participate in the process.
Certain countries like France, Indonesia, Russia and Egypt supported an Indian proposal as a temporary workaround. India refined its earlier proposal and suggested that the OEWG continue the first OEWG’s system of informal consultations for the duration of one year while the issue of stakeholder participation was referred back to the UNGA for a final deliberation. No consensus was reached and consequently the Chair decided to suspend the issue of modalities and switched to issue-specific conversations via informal mode of discussion.
Conclusion: Final Modalities Yield Mixed Results
Three weeks after the conclusion of the second substantive session, the OEWG Chair shared a letter dated April 22, 2022 which declared consensus on the modalities of stakeholder participation at the second OEWG. These modalities will be formally adopted at the OEWG’s third substantive session in July 2022. They state that interested ECOSOC accredited NGOs can participate at the OEWG. Other interested stakeholders/organisations which are relevant to the OEWG’s mandate can apply for accreditation. They can formally participate provided Member States do not object. However, on the transparency front there appears to be a compromise. States must only share general reasons for their objection on a voluntary basis. The Chair will only share this received information with other Member States upon request. This prima facie means a stakeholder will not know why there was an objection against its participation in the OEWG process.
The actual stakeholder involvement will be carried out through two prongs. First, like the first OEWG the Chair will organise informal inter-sessional consultations between States and stakeholders. Second, accredited stakeholders can attend formal meetings of the OEWG, submit written inputs and make oral statements during a dedicated stakeholder session.
The modalities do not clarify if accredited stakeholders can participate virtually. This gap in communication is important since many stakeholders from developing/emerging countries often have limited resources and/or capacities to send contingents to these processes. While this development represents clear strides in terms of inclusivity from prior UN cybersecurity processes, as structured, the modalities could inadvertently exclude stakeholders from smaller countries who have an interest in maintaining a safe, secure and accessible cyberspace.
It remains to be seen if the international community will allocate resources in ensuring all interested stakeholders are present and active at these discussions. Moving forward, Parts 2 and 3 of this series focuses on key discussions which took place in informal mode at the Second Substantive Session of the OEWG. They describe how States (including India) view the substantial issues outlined in the OEWG’s institutional mandate. Part 3 concludes by charting out what to expect in the OEWG’s forthcoming draft of its first annual progress report for the UNGA.
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