Statement by Mr. AKAHORI Takeshi, Ambassador for Cyber Policy of the Ministry of Foreign Affairs of Japan, at the third substantive session of the OEWG on ICTs (Explanation of Position before adoption)
2021/3/12
The Government of Japan would like to express its deep appreciation and great respect to Ambassador Jurg Lauber, Chair of the Open-ended working group on developments in the field of information and telecommunications in the context of international security (OEWG), for preparing the draft Final Substantive Report before us. Japan also expresses its gratitude to Under-Secretary-General Nakamitsu and all the members of UN Secretariat and support team who supported our process in difficult times.
Japan supports the adoption of the draft as a Final Substantive Report.
As mentioned in the draft, the OEWG conducted its work building upon and reaffirming the framework provided by the three consensus reports of the groups of governmental experts (GGEs) and succeeded in reaching certain conclusions and recommendations to promote an open, fair and secure cyberspace.
Japan kept its promise made at the first substantive session of the working group and participated actively and constructively in all formal and informal sessions and multi-stakeholder events. Japan also provided various proposals to help build additional layers of understanding among States on cybersecurity. The joint proposal on medical services and medical facilities and its own proposal on a guidance to the existing norm on supply chain integrity are only some examples.
Our support for the adoption of the draft does not mean that Japan is satisfied with the draft in its entirety. Japan strongly prefers to see more detailed language supported by many delegations in the International Law section of the report. From the beginning of the process, Japan has been proposing to include language explicitly affirming the applicability of State responsibility for internationally wrongful acts, the inherent right of self-defense recognized in the UN Charter, and International Humanitarian Law. While I heard some delegations claiming that there is a lack of consensus on how international law applies in cyberspace, I have not heard convincing arguments explaining why those principles or areas of international law are not applicable in the ICT environment. On the contrary, for example, we had rich inputs on why we should affirm the applicability of International Humanitarian Law from various stakeholders including ICRC and academia.
Japan is not happy that the draft, which was purported to include only consensus language, includes in paragraph 80 one perspective which was quite controversial. The idea of the possibility of additional legally binding obligations was strongly opposed by many delegations including mine and should have been left in the Chair’s summary of discussions, if at all.
Japan urges States putting forward the idea of new binding obligations to thoroughly consider how international law applies in cyberspace before making proposals. To give just one example, a new legally binding instrument would have no meaning without reaffirmation that international customary law on State responsibility applies to acts of States using ICTs. Claiming that State responsibility is not applicable to acts of States using ICTs is the equivalent of saying that internationally wrongful acts will not have legal consequences in cyberspace. Then what would be the use of negotiating new legal obligations? Treaties bind only States parties. Taking into account the very nature of cyberspace, international cooperation must be broad. Those who propose new legally binding obligations still have a lot of explaining to do.
Japan supports the adoption of the draft despite these caveats because it will have positive impact. Japan highlights the importance of confirming the acquis explicitly in a process open to the direct participation of all UN Member States.
The section on International Law recognizes the 2015 GGE report and explicitly reaffirms that international law, and in particular the Charter of the United Nations, is applicable in the ICT environment. While in the past the affirmation was indirect, in the form of General Assembly resolutions adopted by consensus endorsing GGE reports, this time, the affirmation by all the UN Members is direct. In future discussions on how international law applies, including in the new OEWG, we all will be able to refer to and build upon the whole section 6 and particularly paragraph 28 of the 2015 GGE report which “offers non-exhaustive views on how international law applies to the use of ICTs by States.” We would like to further advance discussions on how international law applies, based on the acquis.
The inclusion of the Programme of Action in the recommendations is also positive. As a cosponsor, Japan looks forward to participating actively in the elaboration of the programme. We also have good content in the draft on capacity building and confidence building measures.
Let us all support the draft and take a joint step forward to promote an open, fair and secure cyberspace.
I thank you.
Japan supports the adoption of the draft as a Final Substantive Report.
As mentioned in the draft, the OEWG conducted its work building upon and reaffirming the framework provided by the three consensus reports of the groups of governmental experts (GGEs) and succeeded in reaching certain conclusions and recommendations to promote an open, fair and secure cyberspace.
Japan kept its promise made at the first substantive session of the working group and participated actively and constructively in all formal and informal sessions and multi-stakeholder events. Japan also provided various proposals to help build additional layers of understanding among States on cybersecurity. The joint proposal on medical services and medical facilities and its own proposal on a guidance to the existing norm on supply chain integrity are only some examples.
Our support for the adoption of the draft does not mean that Japan is satisfied with the draft in its entirety. Japan strongly prefers to see more detailed language supported by many delegations in the International Law section of the report. From the beginning of the process, Japan has been proposing to include language explicitly affirming the applicability of State responsibility for internationally wrongful acts, the inherent right of self-defense recognized in the UN Charter, and International Humanitarian Law. While I heard some delegations claiming that there is a lack of consensus on how international law applies in cyberspace, I have not heard convincing arguments explaining why those principles or areas of international law are not applicable in the ICT environment. On the contrary, for example, we had rich inputs on why we should affirm the applicability of International Humanitarian Law from various stakeholders including ICRC and academia.
Japan is not happy that the draft, which was purported to include only consensus language, includes in paragraph 80 one perspective which was quite controversial. The idea of the possibility of additional legally binding obligations was strongly opposed by many delegations including mine and should have been left in the Chair’s summary of discussions, if at all.
Japan urges States putting forward the idea of new binding obligations to thoroughly consider how international law applies in cyberspace before making proposals. To give just one example, a new legally binding instrument would have no meaning without reaffirmation that international customary law on State responsibility applies to acts of States using ICTs. Claiming that State responsibility is not applicable to acts of States using ICTs is the equivalent of saying that internationally wrongful acts will not have legal consequences in cyberspace. Then what would be the use of negotiating new legal obligations? Treaties bind only States parties. Taking into account the very nature of cyberspace, international cooperation must be broad. Those who propose new legally binding obligations still have a lot of explaining to do.
Japan supports the adoption of the draft despite these caveats because it will have positive impact. Japan highlights the importance of confirming the acquis explicitly in a process open to the direct participation of all UN Member States.
The section on International Law recognizes the 2015 GGE report and explicitly reaffirms that international law, and in particular the Charter of the United Nations, is applicable in the ICT environment. While in the past the affirmation was indirect, in the form of General Assembly resolutions adopted by consensus endorsing GGE reports, this time, the affirmation by all the UN Members is direct. In future discussions on how international law applies, including in the new OEWG, we all will be able to refer to and build upon the whole section 6 and particularly paragraph 28 of the 2015 GGE report which “offers non-exhaustive views on how international law applies to the use of ICTs by States.” We would like to further advance discussions on how international law applies, based on the acquis.
The inclusion of the Programme of Action in the recommendations is also positive. As a cosponsor, Japan looks forward to participating actively in the elaboration of the programme. We also have good content in the draft on capacity building and confidence building measures.
Let us all support the draft and take a joint step forward to promote an open, fair and secure cyberspace.
I thank you.