General Assembly Adopts Resolution Outlining Terms for Negotiating Cybercrime Treaty amid Concerns over ‘Rushed’ Vote at Expense of Further Consultations
Text Passes Unanimously Following Extensive Debate, Adoption of Three Amendments Calling for Transparency, Inclusion
On the heels of early consultations that many delegates described as being rife with challenges, the General Assembly today adopted a resolution laying out next steps for multilateral negotiations to draft a landmark global treaty against the rising threat of cybercrime.
The resolution, titled “Countering the use of information and communications technologies for criminal purposes”, was adopted unanimously following intensive discussion and three approved amendments — two of which required recorded votes.
Introducing the draft resolution (document A/75/L.87/Rev.1) at the meeting’s outset, its main co-sponsor, the representative of the Russian Federation, described it as the outcome of an agreement reached during the just-concluded organizational meeting of the Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communications Technologies for Criminal Purposes. Noting that its language is based on documents submitted by the Russian Federation and the United States as representatives of groups of countries, he said its drafting followed many months of hard work and enjoys support by the overwhelming majority of Member States.
Describing the draft as a “very balanced and subtle compromise text”, he said it envisions that the Ad Hoc Committee will meet in both Vienna and New York. It addresses the need to finance the participation of those delegations which lack representation in the Ad Hoc Committee, as well as developing countries more broadly, and lays out the imperative for consensus-based decision-making. However, it also bases its work on the rules of procedure of the General Assembly, he said, noting: “That means that no single delegation will be able to block the consensus.”
Pointing out that the Russian Federation made major changes to its ideal text in order to ensure broader support for the draft, he stressed the importance of global unity on the serious threat of cybercrime, and urged all delegations to vote in favour.
By the terms of the resolution, the Ad Hoc Committee will convene at least six sessions of 10 days each, to commence in January 2022, and submit a draft convention on countering cybercrime to the General Assembly at its seventy-eighth session in 2023. It also lays out modalities for the participation of global and regional intergovernmental organizations, and for the invitation and approval of additional groups with expertise in the field of cybercrime. That section of the resolution was altered today, prior to its adoption, by an amendment proposed by the representative of the United Kingdom (document A/75/L.92), which was itself approved by a recorded vote.
Introducing that amendment, the United Kingdom’s delegate expressed his desire for a cybercrime treaty that enjoys the widest possible support and lays out tangible measures. To that end, he said, a range of stakeholders and experts must be able to share their views with the Ad Hoc Committee in a transparent manner. “Tackling cybercrime is a battle that cannot be won by Governments alone,” he stressed, expressing his delegation’s surprise that today’s resolution was rushed into the Assembly with little warning and that it contains outdated language. The challenge with its current formulation is that operative paragraph 9 offers a veto to any one Member State over the participation of a particular non-governmental organization or civil society member.
In contrast, he said amendment “L.92” would replace operative paragraph 9 on the participation of external groups with language calling more specifically for transparency. The language proposed in the amendment does not remove oversight over those groups invited to participate in the Ad Hoc Committee’s work, but rather gives power back to its members.
Referring more broadly to the draft resolution, he stressed: “The text before us is not the result or outcome of the work at the [Ad Hoc] Committee.” Instead, it is the result of bilateral talks between the Russian Federation and the United States, to which even the latter is now objecting. “The only majority I heard were voices expressing concern over the text,” he said. Rushing a “surprise text” into the Assembly on short notice — and at the expense of further informal consultations among Member States — is not the action of a main co-sponsor dedicated to the principles of consensus and inclusivity.
Throughout the meeting, many speakers echoed those objections, with several diverging in particular over the draft resolution’s modalities for the Ad Hoc Committee’s decision-making structure.
In that vein, the representative of Brazil introduced an amendment (document A/75/L.90) which would replace parts of operative paragraph 5 with new language calling for all decisions of the Ad Hoc Committee on substantive matters without approval by consensus to be taken “by a two-thirds majority of the representatives present and voting, before which the Chair, upon a decision of the Bureau, shall inform the Committee that every effort to reach agreement by consensus has been exhausted”.
Stressing that cybercrime is a difficult offence to track with no physical borders and which crosses national jurisdictions, he said international cooperation on the matter is therefore all the more crucial. The resolution before the Assembly today lacks both inclusivity and transparency, he said, voicing concern that it was drafted “behind closed doors” and without sufficient consultations, under the mistaken assumption that it would be supported by all delegations.
In the absence of broader consultations, he said, Brazil decided to table an amendment which would require the identification of a clear majority of members for the Ad Hoc Committee to take decisions. He noted that such a majority enjoys clear precedent in many United Nations treaty drafting bodies, including most recently the intergovernmental conference to develop an international legally binding instrument on marine biodiversity in areas beyond national jurisdiction.
A third amendment (document A/75/L.91) was submitted and introduced by the representative of Haiti on behalf of the Caribbean Community (CARICOM). Aimed to better facilitate the participation of developing countries in the Ad Hoc Committee’s negotiations, it offered several changes to the draft resolution — including by moving some of its meetings to New York, rather than Vienna — and proposed language related to funding for those Member States’ participation.
Agreeing that cybercrime is a global problem requiring a truly global response, he said developing countries often lack the legal frameworks and effective security capabilities required to combat it. It is therefore crucial that the views of developing countries be considered in the drafting of any global treaty. He also proposed, and later withdrew, a motion under Rule 91 of the Assembly’s rules of procedure, which would have had delegations vote on his proposed amendment ahead of the other two.
Instead, the Assembly took up each amendment in the order it was received. Voting first on Brazil’s proposal, “L.90”, it adopted the amendment by a recorded vote of 88 in favour to 42 against, with 32 abstentions.
Turning next to the amendment proposed by Haiti on behalf of CARICOM, “L.91”, Member States adopted the amendment without a vote.
They next adopted the amendment put forward by the United Kingdom, “L.92”, by a recorded vote of 82 in favour to 33 against, with 43 abstentions.
Having thus amended the original text, L.87/Rev.1, the Assembly adopted that draft resolution as a whole without a vote.
Dozens of delegations spoke in explanation of position both before and after the votes. The representative of Portugal, speaking on behalf of the European Union, said his delegation was initially concerned that actions taken by the Ad Hoc Committee without full consensus could lead to further polarization, worsen the digital divide and erode the ability of countries to fight cybercrime. Pointing to the serious concerns raised by many delegations who felt they were not able to share their views during the organizational session — in particular because several informal sessions promised never took place — he described the unilateral decision to put a modified text before the Assembly prematurely as “very troubling”.
He said those actions, especially ignoring the Chair’s efforts to hold informal consultations, shows little respect for the spirit of multilateralism and erodes confidence in the way the process will be conducted. While the European Union would have preferred the Chair to propose a compromise text, it will support Brazil’s amendment to add a two-thirds majority clause on decision-making, which will, among other things, prevent one or two States from blocking consensus, he said.
The representative of the Netherlands, associating himself with the European Union, said his delegation was ready to support the draft presented to the organizational session of the Ad Hoc Committee on 12 May. Spotlighting the importance of inclusivity, he voiced regret over the steps leading to today’s meeting. Rushing a draft resolution into the Assembly on such short notice, while consultations with the Chair were ongoing, is not inclusive. The Netherlands supports Brazil’s proposed amendment for a two-thirds majority decision-making threshold, which will ensure that the voices of the entire United Nations membership are heard.
Austria’s delegate, also associating himself with the European Union, echoed those points. “Our hope was to avoid polarization and to start the process from the positive spirit of consensus,” he said. On 12 May, several delegations expressed their concerns about the text agreed by the United States and the Russian Federation. Expressing disappointment that efforts by the Chair to resolve those differences were undercut as the draft was rushed into the Assembly, he voiced support for the amendments put forward by Brazil and the United Kingdom. He also noted with regret that the subject of the negotiations’ venue has been a cause of division, emphasizing: “There is no hierarchy between United Nations seats.”
The representative of the United States said her delegation does not support “L.87” in its current form, nor does it support efforts to circumvent dialogue or rush through a vote when informal consultations were still being scheduled. Emphasizing that such actions undermine the work of the Bureau and the Ad Hoc Committee itself, she said the United States has been clear in its support for a balanced, inclusive, consensus-based process leading to a universal cybercrime treaty.
Emphasizing that the text hastily presented to the Assembly today “falls well short of that standard”, she said the main co-sponsor’s actions only reveal that consensus is not its goal. Turning to Brazil’s proposed amendment, she said there is good reason for a two-thirds majority provision, which can help build confidence among Member States towards a fuller consensus. In that context, she welcomed both the amendments put forward by Brazil and the United Kingdom.
Chile’s representative described 2020 as unprecedented in terms of rising cybercrime attacks and the accelerating capabilities of hackers. Emphasizing that there is a cyberattack every 39 seconds, he also spotlighted the digital divide and voiced support for the development of a legally binding global treaty. Regrettably, the process leading to negotiations has not been inclusive and transparent. As such, Chile supports the amendment put forward by the representative of Brazil as way to guarantee broad representation of Member States.
The representative of Switzerland, also speaking on behalf of Liechtenstein, expressed deep regret that “L.87/Rev.1” fails to consider the view of a wide range of Member States. While the spirit of consensus is the best approach, the amendment on a two-thirds majority system proposed by Brazil presents the best compromise between those arguing for consensus decision-making and those asking for a simple majority process. She expected that the negotiations will take place in an open and transparent manner and be based on existing international instruments. She also voiced support for the amendment proposed by the United Kingdom. Speaking in her national capacity, she advocated for convening the entire negotiation process in Vienna, which is the United Nations legal hub.
The representative of Romania agreed that the process in recent weeks was marked by a disregard for inclusivity and consultation. “We’re left with amendments in the room […] and an abysmal disrespect for multilateralism and for the members of this Assembly,” he stressed. Voicing support for the two-thirds majority proposal put forward by Brazil, he said any attempts to reject it reveal that the real intent of some States is to make a mockery of the Ad Hoc Committee’s negotiations.
Also echoing concerns about the drafting process were the representatives of Australia, Israel, Colombia, Canada, Norway, Costa Rica and Guatemala. However, several countries also spoke in support of “L.87/Rev.1”, calling it a “carefully balanced compromise” that, by definition, cannot entirely satisfy any single delegation.
The representative of Syria, describing existing international instruments as insufficient because they do not address the use of information and communications technology (ICT) by terrorist groups, expressed support for the resolution drafted by the Russian Federation. “For us, this is the legal and realistic basis to move forward,” he said, noting that the text reflects all the discussions held during the preparatory process in recent weeks. Regarding the amendment proposed by Brazil, he said the Ad Hoc Committee should follow the General Assembly’s rules of procedure in making decisions either by simple majority or by two-thirds majority, where required. He welcomed the amendment proposed by Haiti on behalf of CARICOM, while rejecting the one submitted by the United Kingdom.
The representative of Venezuela reiterated his country’s commitment to fighting cybercrime, calling for the start of the Ad Hoc Committee’s work as soon as possible. Noting that there has already been exhaustive discussions for over a year, he said Venezuela supports any initiative that aims to strengthen inclusive participation and begin the Ad Hoc Committee’s work. It therefore supports draft resolution “L.87/Rev.1” and the notion that the Assembly’s rules of procedure should also govern the Ad Hoc Committee.
The representative of China said the draft resolution is a compromise text reflecting the consensus of all Member States. Describing its language as “hard-won”, he said it aims to achieve a wide-reaching, practical convention on cybercrime with broad participation. Turning to the proposed amendments, he said “L.87/Rev.1” accommodates the concerns of all delegations in a reasonable manner. The amendments put forward “break this balance” and is not conducive to a spirit of compromise. China therefore does not support Brazil’s amendment.
Regarding the participation of non-governmental organizations, he said the draft resolution “reflects an open attitude on the matter” and allows groups in consultative status with the Economic and Social Council to participate and others to participate with observer status. For that reason, China also does not support the amendment proposed by the United Kingdom. As countering cybercrime requires a negotiation process that includes all Member States, China will provide support to developing countries — especially those that lack representation in Vienna — and hopes other countries will do likewise.
Cuba’s delegate described “L.87/Rev.1” as a delicate balance that “represents the best compromise available”, expressing support for the resolution, while rejecting the proposal to establish a two-thirds majority decision-making threshold as unnecessary.
The representative of Nicaragua said the United Nations cannot remain inactive in the face of the emerging challenges presented by cybercrime. In order to quickly begin the Ad Hoc Committee’s work, he said his delegation supports the draft resolution before the Assembly today and warned others not to make “the perfect the enemy of the good”. While Nicaragua is in favour of the amendment proposed by Haiti on behalf of CARICOM regarding broader participation by developing countries, it does not support the United Kingdom’s proposed amendment, as the original draft resolution already accounts for the participation of non-governmental organizations based on existing precedent.
The representative of Kiribati, noting that his country has been severely impacted by cybercrime, called on the Assembly to “take a breath and walk the path of patience, wisdom and collaboration” on this highly crucial matter. “We want a treaty that will be applauded and celebrated by every human being on the planet,” he stressed.
The Assembly will reconvene in plenary at a date and time to be announced.
* *** *