[Air-L] UN Cybercrime Meeting Day 1

[Joly MacFie]

After the CITI webinar <https://isoc.live/17229/>, I am following this with
some interest, and running the sessions into Otter, since the UN does not
provide transcripts.

https://joly.substack.com/p/51969f5d-7820-4672-9bec-0df5dd5cf3ef

SInce it is the 'Concluding meeting' before full UN ratification, most of
the text is set, but some things are still moot. The session kicked of with
a lengthy reading of minor amendments, which one can find detailed in
the Explanatory
Notes
<https://www.unodc.org/documents/Cybercrime/AdHocCommittee/Concluding_session/Documents/Ad_Hoc_Committee_-_Explanatory_notes_RDTC.pdf>
.

Then it was down to a lengthy discussion focused on two articles, 5 and 24,
that relate to human rights:

Article 5. Respect for human rights
> States Parties shall ensure that the implementation of their obligations
> under this Convention is consistent with their obligations under
> international human rights law.


Article 24. Conditions and safeguards
> 1. Each State Party shall ensure that the establishment, implementation
> and application of the powers and procedures provided for in this chapter
> are subject to conditions and safeguards provided for under its domestic
> law, which shall be consistent with its obligations under international
> human rights law, and which shall incorporate the principle of
> proportionality.
> 2. Such conditions and safeguards shall, as appropriate in view of the
> nature of the procedure or power concerned, inter alia, include judicial or
> other independent review, grounds justifying application, and limitation of
> the scope and the duration of such power or procedure.
> 3. To the extent that it is consistent with the public interest, in
> particular the proper administration of justice, each State Party shall
> consider the impact of the powers and procedures in this article upon the
> rights, responsibilities and legitimate interests of third parties.


It was noted in the CITI call that, up to now, with the exception of
Canada, and some Latin American countries, but, surprisingly, not the EU,
there had been very little pushback on behalf of human rights,  On Monday
the EU delegate made a lengthy statement, concluding with threatening what
in the UK is known as "throwing a wobbler" if article 24 were to be
deLeted,

>
> Madam Chair, we fail to understand why articles five and 24 pose concerns
> for some distinguished delegates. This will be a UN Convention on the UN
> itself as being the original promoter of human rights at a global scale.
> Through its Universal Declaration of Human Rights, which the UN General
> Assembly adopted almost 20 years ago. It is unquestionable that every UN
> member states as obligations under international international human rights
> law as article 5 of the draft convention records, article 24 clarifies how
> these obligations translate into some of the core parts of this future
> convention, namely the procedural powers it provides and the international
> cooperation measures that rely on them. When it comes to human rights and
> safeguards, we are not talking about something nice to have, without which
> the convention could still be implemented. Human Rights are in fact an
> essential enabler of international cooperation, not an obstacle. If a state
> party cannot trust, that the assistance or information it provides to
> another state party will be used in a way that does not infringe the rights
> of the persons investigated or prosecuted, that state body is simply unable
> to provide that assistance or information in accordance with its domestic
> law.



>
> We underline again that for many states around the world, including the EU
> member states, human rights are an integral part of the national framework.
> Accordingly, they set out the limits and conditions of the ability to
> cooperate with other states, the future convention cannot be fully
> effective without incorporating them. To respond to some question which
> were asked in relation with the principle of proportionality, the EU and
> its member states would like to stress that it is a basic tenet of human
> rights law. It is already found in article 29 of the Universal Declaration
> of Human Rights. It provides that such rights and freedoms shall be subject
> only to such limitations, as are determined by law solely for the purpose
> of securing do recognition and respect for the rights and freedoms of
> others, and of meeting the just requirements of morality, public order, and
> the general welfare in a democratic society. It is of use, that it is UN
> member states individually which must ensure respect for this basic
> principle of unity international human rights law in the exercise of their
> sovereignty.



>
> Madam Chair, article 24 is indeed inspired from the Budapest convention.
> But so articles 25 to 30 in the chapter 4 on particular powers, and
> articles 42 to 46 on the international cooperation chapter, and they are
> intrinsically linked by that logic. Did you think that Article 24, as
> proposed by some countries, should then necessarily lead to the deletion of
> articles 25 to 30 and articles 42 to 46. Deleting article 24 should also
> lead to narrowing the scope of international cooperation on electronic
> evidence to cover only crimes defined in the convention. The EU and its
> member states were initially against the extension of the scope to the
> exchange of electronic evidence for serious crimes. We accepted this larger
> scope because we noted how important it was for many delegations. Our
> acceptance remains conditional on the existence of strong safe grounds, and
> no additional offences under the criminalization chapter.



>
> Madam Chair, the EU and its member states support the UK proposal to
> clarify that article 24 also applies to the international cooperation
> chapter. As this does not seem obvious to all the delegations. We also
> support an amendment in paragraph one of article 24, which would clarify
> that domestic law should provide for the protection of human rights and
> which will therefore read domestic law comma which will provide for the
> protection of human rights come out consistent with its obligation under
> international human rights law, and so on. Thank you Madam President,
>

Meanwhile Russia, for its part, noted the lack of consensus, and pushed for
a vote

*Russia*

> Chair, the Russian delegation supports the statement made by Iran, Iraq,
> Egypt, Pakistan, Saudi Arabia, and Syria. Analyzing the statements from UN
> member states, the Russian Federation, is coming ever closer to the
> conclusion that articles 5 and 24 do not enjoy consensus. In this
> connection, Chair, why could we not consider the possibility during this
> concluding session of putting these articles to a vote? Thank you very
> much.

*Chair*

> I'm sorry. You're asking right now, for us to vote on these articles? Is
> that what I'm understanding?

*Russia *

> These articles do not enjoy consensus. So we would like to consider the
> possibility of putting them to a vote. Let's discuss that during our
> meeting today.

*Chair*

> You would like to discuss whether or not we should vote. That's what
> you're asking for. But it's too soon. I think quite honestly, I don't
> follow you at all on this proposal, but I will let the committee decide.
> Would anyone like to second the proposal put forth by the Russian
> Federation to vote on these two articles?

*Chair*

>  I see no one who wishes to support it.


which shut them up.

The Canadian delegate went off on a lengthy analogy:

We all set out to build If I may, an international cooperation clubhouse, a
> place where we can efficiently and effectively address some of the world's
> most pressing problems. We did not, however, have the same conception of
> that clubhouse. Some of us conceived of this clubhouse as a tidy clubhouse
> with a half dozen useful rooms. This so called clubhouse would have all the
> amenities that you would expect in such a clubhouse, air conditioning,
> furnace, windows, patios, etc. In other words, a comprehensive clubhouse.
> This clubhouse is neat, well defined and cost effective, while others of us
> envisioned a very different type of clubhouse, a clubhouse which had 100+
> rooms, because it too, is comprehensive. In fact, it is open ended in its
> comprehensiveness and the back portion of that clubhouse would remain
> perpetually under construction, just in case a state identified a new issue
> upon which it wanted to cooperate. In the clubhouse, safeguards act as
> keys. In other words, when a treaty contains strong and numerous
> safeguards, a variety of keys, members of that clubhouse can actually trust
> each other on issues of vital importance. In the other clubhouse, the one
> without those safeguards, anyone can do whatever they want in that
> clubhouse. And in their interactions, individual members will have to prove
> themselves trustworthy to each other on an ad hoc basis. This is in fact
> what we currently have without a treaty.



> If this analogy has missed its mark and does not aptly describe where we
> are in this process, I can simply summarize our own country's position,
> which is, we not only want to respect human rights from a principle global
> perspective, because we think it is our obligation as a UN member state,
> but from a practical operational perspective, we have to respect those
> human rights every time we use investigative powers domestically. In other
> words, we're not asking more of our partners than we need for our own
> domestic processes.


Eventually the topic changed to the revised preamble <http://We all set out
to build If I may, and international cooperation clubhouse, a place where
we can efficiently and effectively address some of the world's most
pressing problems. We did not however, have the same conception of that
clubhouse. Some of us conceived of this clubhouse as a tidy clubhouse with
a half dozen useful rooms. This so called clubhouse would have all the
amenities that you would expect in such a clubhouse, air conditioning,
furnace, windows, patios, etc. In other words, a comprehensive clubhouse.
This clubhouse is neat, well defined and cost effective, while others of us
envisioned a very different type of clubhouse, a clubhouse which had 100+
rooms, because it too, is comprehensive. In fact, it is open ended in its
comprehensiveness and the back portion of that clubhouse would remain
perpetually under construction, just in case a state identified a new issue
upon which it wanted to cooperate in the clubhouses safeguards act as keys.
In other words, when a treaty contains strong and numerous safeguards, a
variety of keys, members of that clubhouse can actually trust each other on
issues of vital importance. In the other clubhouse, the one without those
safeguards, anyone can do whatever they want in that clubhouse. And in
their interactions, individual members will have to prove themselves
trustworthy to each other on an ad hoc basis. This is in fact what we
currently have without a treaty. If this analogy has missed its mark and
does not aptly describe where we are in this process, I can simply
summarize our own country's position, which is we not only want to respect
human rights from a principle global perspective, because we think it is
our obligation as a UN member state. But from a practical operational
perspective, we have to respect those human rights every time we use
investigative powers domestically. In other words, we're not asking more of
our partners than we need for our own domestic processes.>. The main bone
of contention here was the inclusion of provisions mentioning  'vulnerable'
and  'gender' victims.

Recognizing the increasing number of victims of [cybercrime] [the use of
> information and communications technologies for criminal purposes], the
> importance of obtaining justice for those victims and the necessity to
> address the needs of persons in vulnerable situations in measures taken to
> prevent and combat the offences covered by this Convention,


Recognizing the need for cooperation between States and relevant
> stakeholders in combating [cybercrime] [the use of information and
> communications technologies for criminal purposes],


Affirming the importance of mainstreaming a gender perspective in all
> efforts to prevent and combat the offences covered by this Convention,


For example, Cameroon on gender, add a CYA clause.

My delegation would like to  reiterate that our work is to craft a
> convention about criminalizing illicit use of ICTs. Why then do we need to
> put gender in criminalization? It's fine to talk about it. comprehensively
> to address the issue in a comprehensive, overarching manner, crimes are
> crimes for everyone. Because when we start talking about gender, sex and so
> forth in crime, then  we're running the risk of either not saying enough or
> saying too much. So my delegation would suggest that we either remove this
> concept, or, if we absolutely want to keep it, then we need to add to it
> and add other considerations in keeping with the domestic legislation of
> every state, because we also need to avoid a situation where we're adding,
> and that opens the door and opens up Pandora's box, really, because of a
> concern or a special concern that we have, and then we get involved in all
> these others. So, just to sum up, on this paragraph, we have some
> reservations about this concept of gender, and associating it with crime at
> this level. But, in order to accommodate all delegations, if we need to
> keep the idea of gender, then we need to do so in a way that is in keeping
> with the domestic legislation of every state. Because Cameroon's concept of
> gender might not be the same as the concept of delegation X, Y, or Z.


The chair responds

> As I said before, I always try to be as honest as possible if that word
> still has any meaning in current diplomatic situations. But so having said
> that, the reference to gender in subparagraph 10 of the preamble is the
> result of a compromise. You'll remember, perhaps, that during our work, a
> number of countries had asked for the reference to gender to be an Article
> 5, next to human rights. And then after a number of informal discussions,
> multilateral, bilateral and other discussions and discussions in plenary,
> and given the very significant number of delegations that were insisting on
> a reference to gender, given that situation, I found that what might be
> helpful is to including the reference to gender in the preamble, that way,
> it would cover things in a comprehensive way for the convention, and then
> we wouldn't be forced to introduce this reference at it every article or
> paragraph or almost. And that's why I put the reference to gender at the
> preambular level. Now, of course, as usual, you are sovereign. So I would
> be asking if the committee needs to decide about whether to delete this
> paragraph, I would do as you wish, but having said that, I would invite you
> to reflect on Cameroon's proposal, which I think is a good compromise, add
> the reference to domestic legislation, that would be a way of avoiding
> multiple interpretations and harmful to the convention.


As to multi-stakeholder, there wasn't all that much. There were no
interventions from the MS community, but there was an amendment in the
draft language that changed "stakeholders" to "relevant stakeholders". The
spectre of hordes of 'non-relevant stakeholders' gumming up the works
obviously a concern!

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Joly MacFie  +12185659365
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