Event Re-Cap: Developments in cyber and international law at the UN – Josephine Dooley

For the Australian National University’s Centre for International and Public Law (CIPL) Seminar in April, key members of Australia’s delegation to the United Nations (UN) Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (OEWG) discussed latest developments in cyber and international law at the UN.

The third and final substantive OEWG session was held in March. Importantly, on 12 March 2021, 193 States adopted a consensus report containing recommendations to address cyber threats and ‘promote an open, secure, stable, accessible and peaceful’ international cyber environment (OEWG, Final Substantive Report UN Doc A/AC.290/2021/CRP.2, para 7 (‘OEWG Final Report’). The OEWG Final Report has now been endorsed by consensus by the UN General Assembly (UNGA). As part of that effort to improve peace and security in the cyber environment, the OEWG Final Report includes recommendations concerning the development of how international law applies in cyberspace, that States continue to:

  • Inform the UN Secretary-General, and through other appropriate avenues, of their national views and practices on how international law applies to states’ conduct in cyberspace  (Recommendation 38),
  • Support, in a neutral and objective manner, capacity-building of other States in developing their national views and practices, to contribute to building common understandings of and consensus on how international law applies in cyberspace (Recommendation 39), and
  • Participate in future UN processes on international law and cyber as a key step to clarify and further develop common understandings on the issue (Recommendation 40).

At the talk on 27 April 2021, participants were able to learn first-hand from key Australian representatives in the OEWG process what has been Australia’s role in the recognition and elaboration of the application of international law to cyberspace so far, and Australia’s perspective on the implications of the OEWG Final Report going forward. The Panel consisted of: 

  • Johanna Weaver, Special Adviser to Australia’s Cyber Ambassador and Head of Delegation on UN Cyber Processes,
  • Harry Aitken, Assistant Director, International Law Branch, Department of Foreign Affairs and Trade (DFAT),
  • Tess Kluckow, Senior Legal Officer, Office of International Law, Attorney-General’s Department (AGD), and 
  • Wing Commander Craig Deveney, Deputy Director, Operations and International Law Military Branch (Defence Legal).

The panel first discussed the strategic context of the OEWG Report, including the history and policy drivers of development of international law on cyber [either “in cyberspace” or “on cyber issues”] . Whilst UN discussions on the question of application of international law to cyberspace first begun in 1998, the panel acknowledge that the groundbreaking moment for development in this area was the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (GGE) 2013 Report. This particular GGE session was chaired by Australia and, most critically, recognised that ‘international law and in particular the United Nations Charter, is applicable and essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT environment’ (GGE Report, UN Doc A/68/98, 19). 

Assessing the importance of the OEWG Final Report in light of what has preceded it in the UN, the panel emphasised that the OEWG Final Report is critical in that, as a negotiated outcome of all States, it formally settles that international law does apply to states’ conduct in cyberspace. Going forward, States can focus on elaborating how particular principles of international law apply.

The event also examined how the OEWG process itself has contributed to the development of international law in relation to cyberspace. In the OEWG process States elaborated their national position on the application of international law to cyberspace, thus contributing to States’ common understanding on this issue. Whilst Australia, along with several countries including the United States and the United Kingdom, had established and made public its position prior to the commencement of the OEWG process in 2019, Australia contributed case studies to add further to discussions in the OEWG.

Finally, the panelists shared helpful suggestions on what resources those interested in following the development going forward should have regard to, including the annexes to the next GGE Report containing national contributions of participating governmental experts, as stipulated by UN Resolution A/RES/73/266, to be published in 2021, as well as the OEWG Chair’s Summary Report.

If you are interested in attending future CIPL events in-person or online, visit the ANU CIPL website for further information. 

Josephine Dooley is an Assistant Editor of the ILA Reporter. This article does not necessarily represent the views of the employer of the author or the panelists.