Communiqué: African Union Peace & Security Council adopting the Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace

 

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 Since  the 27 June 2014 adoption of the African Union Convention on Cyber Security and Personal Data Protection  (Malabo Convention; last signature 11 May 2020; entry into force 8 June 2023), the issue of an African regulatory framework has been an important element of the construction of an African supervisory architecture (eg here, here, here).  Chapter 11 of the Convention focuses on Cybersecurity. That, in turn, has undergone something of a transformation since 2014 as the global order has become more complicated. And that transformation is also bound up in the construction of the Africa Agenda 2063 (The Africa We Want) and its Cyber Security as a flagship programme (Agenda 2063 text (Popular Version) HERE)

On 29 January 2024 the African Union  Peace & Security Council adopted a "Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace." It was referred to the AU Assembly for consideration and endorsement at its meeting of 17-18 February 2024 (Communiqué ¶ 4; available here).  Amani Africa Media and Research Services, an independent pan-African policy research, training and consulting think tank with expertise on the African Union system described the process to adoption this way:

The process started at the 1120th Session where the PSC acknowledged the relevance of international law to cyberspace and entrusted the AUCIL, in collaboration with the AU Commission, to conduct consultations with relevant stakeholders on the application of international law to cyberspace. Subsequently, at the 1148th session, the PSC called upon the AUCIL to promptly finalize and submit a draft statement of the Common African Position on the Application of International Law to Cyberspace.

In response to the AU Commission’s request during the 1120th session for technical support in Member States’ development of their national positions and a Common African Position, in 2023, the AUCIL has organized three ‘capacity building’ and consultation sessions. These sessions sought to provide Member States with the essential knowledge and skills to actively contribute to the formulation of the CAP. Additionally, the sessions also provided an opportunity for consultations with Member States and African Experts, regarding the draft Statement. Experts representing AU Member States in the UN General Assembly First Committee, which is responsible for multilateral processes and the Sixth Committee, which is responsible for legal affairs, were also involved in these consultations.

Following the establishment of the Working Group of Experts as per the decision of the 1171st Session, the Group met in Tunisia from 29 November – 1 December 2023 and virtually on 9 January 2024. During these meetings, the draft CAP was presented and considered by the working group of experts.

The AU-PSC issued its Communiqué on 29 January but not yet the  text of the Common Position.  That will be posted and considered in a later post. The text of the Communiqué follows below.  

A few brief points:

1. Alignment. The Communiqué stressed the importance of alignment of the AU position with that being developed by the UN (my thoughts on the evolving UN efforts here: Made in Our Own Image; Animated as Our Servant; Governed as our Property: Interim Report "Governing AI for Humanity" and Request for Feedback).  That alignment was specific and field specific.

2. Broad embedding. The development of a UN aligned position is to be deeply embedded within the broad structures, of international law (as well as its sensibilities and imaginaries. This was made clear in the quite expansive declaration of Communiqué ¶ 2. In a sense, the core proposition appears to be that international law, as currently applicable within the physical territories of AU Member States extends as well to the abstracted territories of cyberspace. In part that might be conceived as a reassurance to others; in part it might have provided a means of territorial acquisition that is defensive (as against non-AU blocs that might otherwise colonize "African" cyberspaces within their own regimes; in part it provided a basis both for coordination with larger and more powerful trading/engagement bloc;in part it represents  a reaffirmation of AU constitutional traditions respecting the role of international law within domestic and regional constitutional orders;  but more importantly, perhaps, there is a large measure of interpretive freedom within the cavernous pathways and spaces of international law.  Nonetheless it also suggests an intent within the AU to treat cyberspace as a (virtual) territory that may be subject to national discipline--even if that discipline is driven by applicable international law as interpreted by the state. Old news, to be sure, but now a concept that is deepened.

2. Security Responsiveness. A principal focus of the Communiqué, and perhaps as well of the Common Position that follows, is defensive (Communiqué ¶ 1).  That makes sense given the geopolitical position of the AU--which remains a favored target for exploitation; and exploitation becomes easier when AU structures can be made more fragile and their elites more dependent. The structural trajectory (defense) mirrors and elaborates the focus on Communiqué ¶ 2. The Common Position appears to align the AU with the trajectories of security based regulation--including the regulation of a human rights based international legalism.

3. Open, secure, stable, accessible, and peaceful objectives. The purpose of international law structured defensive modalities have as their objective five key policy goals: openness, stability, accessibility, and peaceful use under the administrative supervision of the state (within the larger regulatory alignment context of the AU and under international law). There is a space here for the continuing development of what some have called an African focused digital human rights (eg here), within the territorial principle of the Convention and as a function of security vectors.

4. Member State Operationalization. Member States are encouraged, though not required, to develop and issue "national position statements" consistent with the common position and on that basis to participate in multilateral fora (Communiqué ¶ 7). The pattern follows common practice at the international level with respect to soft law instruments that are meant to develop framework for legislation and administration of its objects. 

5. National capacity building. The Communiqué  emphasized what ow appears to be a global trend toqrd the national development of capacity in cyber space (Communiqué ¶ 8; ¶ 10). What makes this interesting (and apparently inescapable given the predilections of governing groups instates) is to underscore the national characteristics of cyberspace and cyber capacity. The concept of cyberspace as a transnational or supra-national space, detached from the state, once popular in the 1990s and the first decade of this century (eg here), appears to continue to be abandoned in favor of something like the idea of cyberspace as national territorial spaces that may be characterized by fracture, fluidity, permeability, and polycentricity (see here) but are attached to the state. The Common Position fits nicely within this global trend. 

6. The dialectics of domestication. Communiqué ¶ 11 more directly positions the Common Position as a dialectical expression of the principles that might be extracted from the Malabo Convention. That dialectic   reinforces the authority of the Convention, encourages further embedding within  national legal orders, and projects the meaning of its text from out of the time, space, and place where/when drafted to the current stage of historical development.  And this may take one back as well to the integrated vision of Agenda 2063.

Where AU states take this beyond its discursive possibilities remains to be seen; the extent to which this discursive framework can be used as a shield against the irresistible impulse of other large collectives to project their own structural sensibilities into Africa remains to be seen.