The 2021 International Cyber and Critical Tech Engagement Strategy
recognises that Australia, and the Indo-Pacific region more widely, faces a “worsening” cybercrime landscape characterized by “expanding threats, low barriers to entry, and increasingly resourceful actors”. Australia acceded to the Council of Europe’s Budapest Convention in 2013 and has since been vocal
about the Convention’s status as the “most comprehensive and effective basis upon which to pursue a common international approach”. The country voted against the Russia-sponsored UN resolution
on the establishment of a new cybercrime treaty; however, upon the passage of the resolution and the subsequent creation
of a dedicated Ad Hoc Committee, Australia has been active in advocating
for a “transparent, inclusive, and consensus-based process with multi-stakeholder participation”. More specifically, it has stated
that the new Convention should “draw heavily” from existing international instruments such as the UN Convention against Transnational Organized Crime (UNTOC), the UN Convention against Corruption (UNCAC), and especially the Budapest Convention, so as to avoid undermining these regimes and ensure the protection of human rights. Australia has additionally placed great emphasis on the need for international cooperation, with the 2021 Strategy
noting that “information sharing, discussion and capacity building are vital to any meaningful response to the threat posed by cybercrime”. The country has launched numerous regional cooperation and capacity-building initiatives, partnering with Pacific Island countries (Tonga, Fiji, Samoa, Vanuatu, Solomon Islands, Niue, Tuvalu) to advance cybercrime law reform and ensure alignment with Budapest provisions.
The EU has been an early champion of the Budapest Convention signed under the auspices of the Council of Europe, given the overlapping membership of the two organisations. Much of the EU’s cyber diplomatic efforts have focused on promoting the Convention as the main instrument of choice for fighting cybercrime on a global level. EU member states have consistently opposed Russian bids for replacing this regime with another legal framework.
The Union is represented in the recently constituted Ad Hoc Committee established by UNGA resolution 74/247 by its Member States and is currently focused
on ensuring that the process is inclusive, transparent, consistent with the progress of the UNGGE and OEWG processes, and committed to legal consistency.
Under the auspices of the OEWG, India has highlighted the need for “real-time cooperation between government agencies”
in combatting cybercrime, cyberterrorism, and cyber threats more widely. To date, however, India has not signed any international cybercrime agreement. It voted in favour of a Russia-sponsored UNGA Resolution
calling for the establishment of a separate cybercrime treaty.
Despite having brought its legal framework largely in alignment with the Budapest Convention, India remains a non-party because the document was drafted without the country’s participation
, thus rending the treaty discriminatory. Another big objection has been raised on the basis of section 32.b, which gives intelligence agencies trans-border access to data for the purposes of criminal investigations with lawful and voluntary consent - a concern shared by Russia.
It has also been argued
that the Mutual Legal Assistance (MLA) regime under Budapest is not effective, as it does not commit states to a firm promise of cooperation; from the perspective of the Indians, it would be preferable
to replace this regime with a UN-driven process.