Cyber Peace & Security Monitor, Vol. 2, No. 5
Testing the trust
5 April 2022
The first and second UN Open-ended Working Groups (OEWGs) on information and communications technologies (ICTs) were established in contexts of high politicisation and acrimony between member states, and with misgivings from many about the way they were created. Despite these auspicious beginnings, a constructive energy emerged over the course of the 2019-2021 OEWG (OEWG I) which was taken as an encouraging sign by many as the 2021-2025 OEWG (OEWG II) commenced work in December.
Enter the war on Ukraine. The fissuring of the international community and the conflict’s impact on international relations has been felt in diverse multilateral forums and the current OEWG is no exception. As outlined in our preview edition, the digital dimensions of the conflict are testing the current normative framework for state behaviour in cyberspace. By extension, so too is the emerging trust in the OEWG II.
Throughout the OEWG’s second session which was held last week, there were many direct references to the war. This included explicit condemnation of Russian aggression, both online and offline; calls to withdraw forces and cease hostilities; statements of solidarity with Ukraine; and references to particular cyber operations and activities that either violate agreed norms and/or international law; or highlight ambiguities in the interpretation of international law as it applies to state behaviour in cyberspace. These statements were made despite continued requests from the OEWG II Chairperson to avoid getting caught up in political dynamics and focus on substantive work.
The tension and frustration were especially evident on the first day of the session, even to those watching by webcast. The Chair’s efforts to get the programme of work (PoW) adopted were shut down by the United States (US) and the United Kingdom, and supported by other member states, because of the outstanding issue around civil society participation modalities. As they correctly pointed out, adopting the PoW and commencing the session formally without agreeing to all of its modalities is irregular in UN processes. The US suggested that the session proceed but in an informal mode. Despite Russia having recently and unilaterally forcing another disarmament and security forum (on autonomous weapons) into working informally at a recent session, it refused to work informally at the OEWG. Russia has been among those most vocally opposed to injecting more transparency into the civil society accreditation process and some of Russia’s actions and statements to oppose transparency were shared publicly by member states in the course of the first meeting.
With the session at a procedural standstill, the first afternoon disintegrated into a confusing and circular discussion encompassing everything from general views about civil society to ideas for new modalities or on what basis to negotiate modalities. A hard-hitting statement from Jamaica spoke to the frustration that many were feeling about the time that had been lost so far and in particular, the impact on smaller delegations. Jamaica called out states for not making the good faith efforts that they claim be making, and noted that so far the approach on this issue has just been to be to “kick the can down the road…and down the road.”
Eventually, Russia accepted to have the second session take place in informal mode. Questions arose as to whether or not statements made during this session could thus be included in the OEWG II’s annual progress report; but the Chair indicated his interest in capturing them. This would be important for the OEWG II, particularly given the continued support for it being an action-oriented body and the numerous concrete proposals that have been made to take it in that direction.
Business as usual?
In her opening remarks to the second substantive session, the UN High Representative for Disarmament Affairs reflected that, “The extraordinary challenges of the past several weeks are of direct relevance to the work of this body. The use of ICTs in support of active hostilities is no longer an abstraction. Some may be tempted to conclude that the politics of the moment are not conducive to progress in disarmament bodies. But, in fact, it is moments like these that demonstrate the critical importance of our common norms, rules and principles, and why we must continue our efforts to ensure their effective implementation and further elaboration.”
Her words resonated and were repeated more than once by member states throughout the week. They also point to something that many UN forums grapple with—to what extent can, and should, such processes work in a vacuum in order to make “progress”? To what extent should, and can, these forums refer to and address current situations that are testing them?
In his opening remarks, the representative of Ukraine remarked, “We cannot pretend in our group that nothing happens and continue our work as business as usual.”
This is a point that many in civil society have made in other forums on international security issues. How can we take a business-as-usual approach in a conference about the arms trade, when arms are being exported into zones of conflict and human rights abuses? How can we take a business-as-usual approach to nuclear disarmament, when the cost of nuclear weapon modernisation is skyrocketing and there are threats of use?
Political dynamics can prevent work from going forward on international cyber security, or any other critical issue, but it cannot be overlooked that technology is not being developed or used in a vacuum. The misuse of ICTs should be recognised and called out, and that should occur regardless of the perpetrator and without any double standard. Doing so gives weight and credence to the normative framework, reinforces international law, and moves the needle toward accountability—which continues to be a core call from many in civil society following the OEWG II. But at the same time, political gamesmanship is costing human lives. Regardless of the issue, civilians are suffering, and will suffer more if we don’t stop violence and war. We need cyber peace and we need international cooperation to get us there.
From the what, to the how
In informal closing remarks, Canada observed that— political differences and the modalities impasse notwithstanding—this second session has been possibly the most substantive OEWG session held so far.
Indeed, every meeting, on every sub-item of the agenda saw rich and deeply substantive interventions from an increasingly geographically diverse number of delegations. Our monitoring also reveals a comparatively better gender balance among speakers than is often the case in First Committee-based forums. At the outset the Chair had been encouraging delegations to move away from general statements on the sub-items and to focus in on moving from the “what” the OEWG should focus on, to the “how” of doing so.
Most states came prepared with specific ideas that ranged from tangible outputs such as compendiums, mappings, and coordination mechanisms to ideas about how the OEWG II could organise its future meetings in ways that would enable more detailed and interactive discussions. Across the sub-items the potential role of the UNIDIR Cyber Policy Platform in fulfilling some of these tasks was highlighted repeatedly. Many delegations recommended that the OEWG II not duplicate existing work that is taking place at regional and sub-regional levels, particularly in the area of capacity-building, and which may be led by various civil society actors.
The fate of civil society participation modalities is still undecided. There were two “informal informal” consultations on the topic during the week. No update was provided about what happened in those meetings to those watching the session remotely (i.e. civil society), which contributes to an odd feeling for many stakeholders about our being the subject of ongoing intense negotiations, but without having a seat at the table in determining the outcome that affects us.
On the final day of the session, the Chair took views on the form and structure of the annual progress report that the OEWG II is mandated to prepare for submission to the UN General Assembly. He will release a zero draft in the weeks before the third informal session in July, which is where the report will (hopefully) be adopted.
It would be good if the Group could already recommend or endorse some of the less controversial and more pragmatic proposals tabled in the last two sessions, particularly as it won’t convene again in a formal mode until early 2023. The Chair’s opening remarks referred to the high expectations among delegations that the OEWG II deliver concrete outcomes, and also noted that other actors are watching to see what the Group can achieve. But given the constraints of consensus-based decision-making and current political dynamics, there is a strong possibility that even agreeing on so-called “low hanging fruit” could be a challenge. More ambitious goals will require more time, and more trust.
As Brazil observed in informal remarks delivered toward the close of the session, “This group belongs to all of us—this test we face now is crucial to determining the quality and the outcomes of the work we have to do in the next five years.”