Cyber Peace & Security Monitor, Vol. 1, No. 3

Not starting from scratch means building on humanitarian disarmament
16 September 2019

Allison Pytlak

“We are not starting from scratch” might just be the motto of the first substantive session of the UN’s new Open-ended working group (OEWG) on developments in the field of information and telecommunications in the context of international security. States and regional groupings alike used these words in order to acknowledge the significant work and dialogue that has already occurred or is presently underway in the area of international cyber security. It was made in reference to external, non-UN dialogue processes as well as regional and national projects spanning prior discussions about the applicability of international law to cyber space, to confidence and capacity building measures. Yet most often, what this equaled was a re-endorsement of the outputs of the UN’s five Groups of Governmental Experts (GGEs) in this issue area (a sixth GGE will begin work later this year). This is not insignificant, for while the outputs of those groups were formally endorsed by the UN General Assembly, they were developed in closed settings which later came under criticism and the fifth GGE broke down owing to fundamental differences of opinion. The near universal reaffirmation of those GGE outputs was a strong indicator that the majority of member states do not want to undo what has already been agreed.

A second point highlighted by many delegations was one of practicality, and urgings to avoid more ambitious, yet politically-charged and possibly unproductive avenues of discussion in future OEWG sessions. This point surfaced across all six thematic areas that were discussed during the session and included suggestions to create various guidance or compilation documents, or recognition of the value of the OEWG as an on-going forum for institutional dialogue and information exchange. Some states used working papers or proposals to advance their ideas; Mexico, for example, submitted a proposal for the periodic submission of national reports to the Secretariat (UNODA), within the framework “on the implementation of rules, norms and principles previously agreed upon”, including challenges or difficulties. The Canadian paper suggests that the “OEWG focus should now be on proposing practical measures to disseminate, apply, and implement existing agreed norms and confidence-building measures (CBMs).”

This desire to focus on practical activity was reinforced and enhanced by the session’s tone. Overall, it was marked with a refreshing atmosphere of good will and positive exchange, which is surprising given the heated context through which it was established. In some of the meetings, delegations discarded prepared statements in favour of honest discussion, in which they asked clarifying questions of one another and responded to points and ideas raised by others. While this sounds like an obvious manifestation of what is meant by the words ‘dialogue’ and ‘debate’, it’s surprising how rare this has become in UN disarmament and arms control fora.

At the same time, it is already clear which topics do not enjoy consensus and will become more challenging as states move toward issuing the OEWG’s report, due in 2020. The applicability of international humanitarian law (IHL) is one, where countries like China and Cuba were clear in their refusal to accept this premise and are unlikely to change their minds about this anytime soon. As explained in greater detail within our News in Brief section, this hangs largely on the premise that accepting IHL legitimises conflict in cyber space, which China says it is keen to avoid, stating more than once that a cyber war “cannot be won and must never be fought”, a quote borrowed from Ronald Reagan regarding nuclear war. Moreover, some states maintain that existing international law of any nature is insufficient to regulate cyber space or information and communication technologies (ICTs) and propose the establishment of new laws and conventions. There were also sufficiently divergent views put forward around human rights, human rights law, and social media content regulation that one can anticipate as a future problem, even if states did not engage in prolonged or overt disagreement during this first session. A majority of countries believe that the OEWG should focus on state behaviour in cyber space, while a smaller grouping of others emphasised that non-state actor behaviour must also be scrutinised.

None of this is surprising. It is now an open secret that the applicability of law and IHL is among the subjects that prevented members of the fifth GGE from reaching consensus in 2017. It is also well-known that some countries would like to see the establishment of a new legal convention on cyber space and that space for human rights considerations within First Committee-mandated bodies is not always welcome.

What states now face is a decision on whether or not to play it safe in the OEWG. They could use the forum to focus on outcomes that would lead to practical implementation of past agreements, and potentially diffuse tensions between certain countries. Or they could seek to put forward more ambitious—yet politically fraught—decisions and recommendations. This approach has merit and could help the UN catch up with and contribute to some of the more technical work of international cyber security that occurs through regional bodies and national computer emergency response teams (CERTs). Yet some of the primary assets of UN-based discussions are its convening power and capacity for norm setting, so to discard the opportunity to work through as of yet unresolved issues in an open and equal space like the OEWG should not be lost.

The extent to which geo-political realities would influence the OEWG session was something that this publication speculated about in its preview edition. The chair, whose own positive energy and coordination contributed to the good atmosphere in conference room four, outlined that he intends to have another round of open discussion on these same topics during the OEWG’s second session in February, and will then have informal consultations to begin reviewing a pre-draft of a draft final report ahead of the third and final session in July. Egypt said in response that it hopes even if states cannot resolve major areas of disagreement, that the report will at least record what those differences are, and why they exist, so as to inform future work in this area.

What will also happen between now and July is that the sixth GGE will begin its meeting cycle, and while it has various input mechanisms for the wider UN membership and non-governmental stakeholders, the GGE is a closed group and the focus of their deliberations largely unknown as of yet, at least to non-insiders. It may become the venue to resolve these politically challenging questions or progress further the articulation of rules, norms, and principles—although its lack of transparency could raise the eyebrows of non-members who are shut out from that conversation. The necessity for complementarity between the two bodies has been widely reinforced (only a few states have said they do not support the GGE at all) but it is important that the more open OEWG not be treated as less politically significant in any way or become a space that is merely left to implement or interpret the decisions made by the smaller GGEs. This will not be politically viable in the long term nor lead to the type of two-way capacity and confidence-building stressed by so many states during the OEWG session. It is somewhat concerning that OEWG participation was uneven, with fewer states from the Caribbean, Africa, and the Pacific attending. In fact, the states who contributed most actively to the first OEWG session are also largely those who are GGE members and can therefore dominate both spaces, while hinting also at capacity issues that may prevent others from participating.

Along similar lines, it is imperative that the OEWG’s intersessional meeting in December be organised in a way that allows for meaningful input from private industry and civil society organisations, the two groups named as the session’s target participants. This will mean meeting formats that permit and encourage interactive engagement and move away from tokenistic presentations delivered from the back of the room. It was encouraging to hear dozens of delegations refer to the importance of non-governmental participation and contributions throughout the week, and that several regretted that 18 such groups were denied access to this session of the OEWG without explanation or clarity on if they could attend future sessions. The intersessional should not, in theory, have the same restrictions for attendance yet all the same, anxieties around inclusivity remain, as do question marks about how the inputs of these diverse other stakeholders will be formally taken on board.

In its preview edition, this publication warned of the continued unchecked militarisation of cyber space. It was troubling to hear from states such as Australia and the Netherlands, and to a lesser extent France and Denmark, that it is okay to develop offensive cyber capabilities provided that this is done with transparency and restraint. This publication also urged states participating in the OEWG to take a more human-centric approach to international cyber security and move away from sanitised discussions that focus on infrastructure over individuals. In this regard, it was positive to hear more statements than expected in this direction throughout the week. Although, it was confusing to hear some of the same states that support the build-up of offensive capabilities simultaneously championing this view. Canada and Australia, for example, spoke to the disproportionate impact of cyber security threats on marginalised groups, including women, and encouraged better awareness of this and gender balanced participation. The UK highlighted the stark lack of gender diversity in the conference room. The Netherlands spoke out strongly in favour of a human-centric approach to cyber security that puts the safety of citizens first, a point echoed by some other delegations. References to the positive role of technology and ICTs in socio-economic development and bridging digital divides were frequent.

If we are not starting from scratch then that must also mean taking into account the principles and successes of humanitarian disarmament. Humanitarian disarmament, which is people-centred both in process and in substance, aims to prevent and to remediate human suffering and environmental degradation and is inclusive. A disarmament approach of any kind should not be taken as a pass on allowing cyber space to become militarised in the first instance, but presents a framework through which to challenge what has already occurred and is occurring in cyber space in a way that can better orient us to human-centric cyber peace.

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