Second Substantive Session of the Open-Ended Working Group
As part of the ICT4Peace delegation to the Open-Ended Working Group on information and communication technologies, Dr. Elaine Korzak, along with Dr. Daniel Stauffacher, attended the week-long session in New York. Elaine Korzak serves as a Special Advisor to ICT4Peace and is a Visiting Assistant Professor at the Middlebury Institute of International Studies at Monterey and an Affiliate at the Center for International Security and Cooperation, Stanford University. Her research focuses on the application of international law and norms in cyberspace, international cyber diplomacy, export controls, and cyber capacity-building.
From 10-14 February UN Member states met in New York for the second substantive session of the Open-Ended Working Group on ICTs (information and communication technologies) in the context of international security. The meeting marked the mid-point in the yearlong OEWG process that began with the first substantive session in September 2019 and continued with an intersessional multistakeholder meeting in December 2019. ICT4Peace has closely followed, and participated in, all these meetings, also delivering a statement during the first and a statement during the second substantive session of the OEWG last week.
Progress of Discussions
Following the first substantive session, which in many ways established a baseline for discussions, the second session attempted to make progress towards the Group’s outcome product – a consensus report to be agreed to at the third substantive session in July 2020. To that end, the Chair issued a number of documents, most importantly a tentative draft structure for the final report and a working paper summarizing issues and questions for each agenda item. The summary of issues proved particularly useful as its guiding questions shaped the discussions among states.
Although all agenda items – from threats, international law, norms, confidence-building measures, capacity-building, to institutional dialogue – were addressed by participating states, discussions ended (rather surprisingly) earlier than the allotted meeting time. National statements have been exhausted thus far, and it’s become apparent that states are waiting for actual draft language of the report to narrow down areas of convergence and divergence, fleshing out acceptable language.
In his closing, the Chair promised to issue a draft report by early March to be discussed in two rounds of informal meetings (in late March and late May). The final draft text will need to be approved by states during the third and final substantive session of the OEWG from 6-10 July 2020.
Key Issues
The Chair’s guiding questions served as an interesting tool to elucidate issues or proposals that were gaining traction among states. Like-minded states strongly supported that the final report follow a technology neutral approach, i.e. that the recommendations not focus on particular technological developments but rather establish guidelines for states to govern the use of technologies. Moreover, like-minded states highlighted and advocated a human rights-based and gender-based understanding as essential to peace and stability in cyberspace. In the area of norms, rules and principles, several states voiced support for a proposal by the Mexican delegation to establish some sort of review or reporting mechanism to monitor the implementation of norms and to identify and share best practices in this area. The exact shape and scope of such a mechanism remains to be seen in light of upcoming draft text negotiations.(1)
At the same time, the guiding questions also revealed that differences over fundamental questions persist. The need for an international legally-binding instrument remained a contentious matter, with states supporting or opposing the idea. Australia used a memorable analogy of handwashing to advance the well-known view that current international law, in combination with voluntary, political norms of responsible state behavior, provides a robust governance framework for the use of ICTs by states, thus negating the need for a new legally-binding treaty. The Russian representative, in contrast, fundamentally questioned the adequacy of current international law, asking why the OEWG spent time discussing the implementation of international law if the applicability of international law to cyberspace was so straightforward and taken as a given. Rather, discussions and disagreements around the implementation of international law showed the very need for an international convention in this area.(2)
Another area of disagreement concerned the way forward for regular institutional dialogue on ICT security with some states calling for the establishment of a permanent forum. Closely connected, the issue of multi-stakeholder participation in current and future discussions was raised. Various governments, mostly like-minded, voiced their frustration with the decision by one or more states in the OEWG to deny accreditation for NGO representatives at the second substantive session (as was the case with the first substantive meeting). Currently, participation is restricted to those civil society organizations that already hold ECOSOC accreditation, including ICT4Peace and a handful of other NGOs.
What’s Ahead
As expected, the second meeting of the OEWG proceeded along the substantive fault lines already drawn at the September meeting. In general, questions around norms of responsible state behavior, application of international law, and future institutional dialogue provoked more controversy than discussions regarding confidence-building measures and capacity-building efforts. A few issues and proposals have gained traction among participants pointing towards possible areas of agreement.
However, only the first draft of the OEWG report anticipated in early March will provide the basis for negotiations regarding specifics of proposals and acceptable language. The coming months will undoubtedly comprise the busiest time in the OEWG process and will ultimately reveal which elements the OEWG membership can and cannot agree on. With the beginning of the GGE process (and its first two meetings in December 2019 and February 2020) pressure on the OEWG to deliver substantive progress has only increased.
[1] ICT4Peace in its intervention invited the OEWG to consider the Universal Periodic Review of the Human Rights Council as a possible model in this regard.
[2] As an intermediate step between the two opposing positions, ICT4Peace in its intervention reiterated its “Call to Governments” of 21 October 2019 to publicly commit that they will not target Critical Infrastructure at all times: ICT4Peace Call on Cyber Operations and Critical Infrastructure_Final_21102019