4th meeting of the third substantive session of the OEWG

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Ilona Stadnik

The fourth meeting of the third substantive session of the OEWG continued to discuss the sections of the First Draft of the Substantive Report on rules, norms, and principles, as well as international law.

In particular, the delegations provided their comments on the applicability of international law and of the UN Charter in its entirety, including international humanitarian law, human rights law, and customary international law. In particular, several states, namely the UK, Norway, Estonia, and Costa-Rica pointed to paragraph 24. They proposed to amend it for accuracy as the contents of this paragraph is wider than the wording of article 2 of the UN Charter and add other principles of international law. Estonia put forward to mention the principles of humanity, necessity, proportionality, and distinction in paragraph 24. The need for a new legally binding document was raised once again by Iran and Pakistan.

On the general question of the applicability of international humanitarian law and its reflection in the final OEWG report, Brazil and the ICRC suggested moving paragraph 84 from the discussion section to the main text of the final report. The ICRC suggested complimenting the reaffirmation in paragraph 84 by clear references to principles of the UN Charter, such as the settlement of international disputes by peaceful means and the prohibition of the use of force in cyberspace. The ICRC representative reminded us that the use of cyber operations during armed conflicts is a reality today. While Cuba, Russia, Iran, and other like-minded states expressed concerns about the increasing number of other states who develop military cyber capabilities, the ICRC is confident that their number will grow in future. The explicit reference to international humanitarian law in the OEWG report is vitally important to restrict the means and methods of warfare in order to reduce the risk and potential harm to both civilians and civilian objects, as well as combatants, considers the ICRC together with the UK, Norway, Mexico, Canada, and the EU. Iran and China expressed opposite views.

The delegates continued to debate the structure of the report in connection with the order of the international law section and the rules and norms section. China insisted on placing the law section after norms justifying such a move by the structure of 2013 and 2015 GGE reports. In contrast, Colombia said, ‘the section on international law comes before the section on norms because no norm can run counter to international law, rather, it must be in conformity with international law’, and Italy supported the same.

As for the norms section, several states put their attention to paragraph 38, pointing to the need to explicitly reflect the consensus nature of the UN resolution 72/37 and the non-consensus nature of the UN resolution 73/27, as well as to clarify the status of the non-paper with national views on norms. Iran was supposed to delete the recommendation on the implementation of norms, as it is yet premature, and China and Pakistan asked to add the wording about possible new norms, i.e., the norms on digital platforms. Iran suggested creating a new subgroup in the new OEWG to study how to ‘protect the rights of both the users and states, and to ensure and facilitate cooperation of digital platforms and transnational corporations with states’. Israel noted that they would like to see the first implementation of the existing norms before we start developing new norms.

As for the survey of national implementation, Mexico pointed out that currently this is rather vaguely formulated in paragraph 33. The EU and its member states expressed support for the survey as a voluntary instrument to elaborate additional guidance on the existing normative framework to add a layer of understanding that would further support the implementation.

The delegations also touched upon CBMs and capacity building. In particular, Iran stated that capacity building will not undermine state security, national sovereignty, social ethics, and public order. They also supported the Cuban proposal to add that states should not conduct malicious activities using ICTs against the recipient or the third state under the pretext of capacity building cooperation.Iran also claimed that the nomination of points of contact in paragraph 50 should not be obligatory, while Hungary proposed to nominate additional points of contact for regional or subregional organisations to facilitate communication and dialogue on cybersecurity.

Finally, there were several statements on regular institutional dialogue. Slovakia, Finland, Sweden, Estonia, and the EU supported the Programme of Action (PoA). The EU particularly stated that the PoA ‘has been established outside the open-ended working group and the reference to it should not constitute an open-ended working group recommendation. More specifically, we suggest recommending to further elaborate on the establishment of a permanent POA in dedicated sessions with the whole UN membership and where appropriate the multi-stakeholder community.’

Egypt supported the Russian proposal to amend paragraph 75 and reflect the PoA: “States note of Variety of proposals for advancing responsible state behaviour in ICTs would inter alia support the capacities of states in implementing commitments in their use of ICTs, in particular the Programme of Action. In considering these proposals, the concerns and interests of all states should be taken into account through equal state participation at the United Nations. In this regard, the Programme of Action should be further elaborated including the Open-ended Working Group process established pursuant to General Assembly resolution 75/240.'