International Legal Regime relating to Cyber Crimes

International Legal Regime relating to Cyber Crimes | Overview

• Introduction
• European Convention On Cyber Crimes
• Hague Convention On Jurisdiction And Foreign Judgments
• Conclusion

This article analyses the international legal framework on cyber crime. Initially, it argues the challenges of cybercrime to traditional criminal justice systems. Subsequently, it focuses on the criminal law framework on cybercrime from a global perspective. The European legal framework provides a three-path solution: the reduction of frictions among national legislations, the introduction of new investigative powers, and the facilitation of international cooperation.

Further, it argues that the effective implementation of the main legal instruments does not seem to depend on the legal enforceability of these international measures. It also considers the steps taken for combating cybercrime in the form of the European Convention on Cybercrimes which stresses the idea of global cooperation so that the problem of cybercrime is tackles globally and once and for all.

I. Introduction

For not so long, cybercrime has raised various challenges for the conventional and traditional legal systems of the world. The first challenge concerns itself with defining what really cybercrime is. The second and more intricate challenge is that of Information and Communication Technology, which is more complex and largely unfamiliar to the conventional criminal justice systems of the world. Hence, to combat and to deal with such intricate crimes, well-trained personnel is required who can understand the gravity of the crime being committed and also come to the rescue.

Traditionally, computer and technological knowledge have been an alien concept for most of the law agencies of the world, hence the states need to invest more into technological literacy. Since the nature of this area keeps changing from day-to-day, one needs to be up to date with all the advancements made so that the techniques and modus operandi don’t seem unfamiliar.

As a third challenge, the majority of the cybercrimes happen within the four walls of a room (virtual environment). This majorly conflicts with the main operational criteria of the criminal justice systems, namely sovereignty and jurisdiction.[1]

In the event that criminal justice systems are to manage these issues identifying with the restraint of cybercrime, they should keep updating their enactment and law authorization systems where these can’t adapt to examination and prosecution of the phenomenon. The abovementioned referenced international arrangements, the Council of Europe Convention on Cybercrime and the 2005 European Union Framework Decision on attacks against information systems [2], look to determine these issues.

Their consolidated arrangements comprise a three-way approach the decrease of contacts among national criminal laws; the arrangement of new analytical apparatuses; and the improvement of global cooperation.

One significant outcome of the virtual idea of numerous cybercrimes is that irregularities among criminal justice systems may hamper the constraint of the wonder. The culprit may be in a distinct jurisdiction from the person in question, and the legitimate meanings of the criminal conduct in the two jurisdictions may not match. Various challenges may emerge from this basic circumstance.

The country where the culprit is available may not believe the act to be an offense. It might criminalize it, yet as a minor offense penalized with the not exactly the same punishment. Regardless of whether the punishment prerequisites for participation are present, this may not be possible in light of the fact that the offenses don’t satisfy the double criminality rule[3].

Particularly for cybercrime, an exorbitantly tolerant criminal enactment or huge irregularities among national guidelines may have inconvenient impacts. Criminals may completely abuse ICT and the virtual climate of the web and focus their activities on the most lenient general sets of laws and on the most helpless individuals.

One arrangement to take care of and prevent these issues is dealing with the inside conflicts of the national legislation with respect to combating cybercrime. The combination of enactments among European (furthermore, other) nations may offer a specialized answer for some challenges identified with the current system of international collaboration.

II. European Convention On Cyber Crimes

The most crucial and instrumental step towards curbing cybercrimes and international cyber law took place in European Convention on Cybercrime held in Budapest on 23rd November 2001. It is undoubtedly the most prominent multilateral treaty regarding the subject of cybercrime. The main countries instrumental in drafting the same were Japan, Canada, South Africa, the United States of America along the Council of Europe. It comprises a total of 4 Chapters and 48 Articles. It is more of a multilateral criminal justice treaty that mainly focuses on:

• Criminalization of various acts done with the aid of computers and the internet;
• Implementing a procedural law to further investigate the cybercrime and also the admission of evidence that is mainly electronic in nature;
• Interpol and cooperation of all judicial jurisdictions to tackle cybercrime.

Approximately 67 nations are signatory to the European Convention on Cybercrimes and together with a total of ten international organizations (the International Telecommunication Union, the Organisation of the American States, the Commonwealth Secretariat, European Union, INTERPOL, the UN Office on Drugs and Crime, and others), these signatory nations consent to their participation as observers or members in the Cybercrime Convention Committee.

This Committee concerns itself with the fact that this convention is being implemented by all signatory nations. However, India is not yet a signatory to this convention. Hence, it is not under the obligation to make amendments in its local laws as per the provisions of this convention.[4]

The European Convention on Cybercrimes has provided nations with a model framework for the growth of municipal laws in accordance with the principles of international law on cybercrime, digital evidence, and preventive measures for the same.

Possible Benefits And Risks

The ones supporting the Convention say that it puts a major step towards combating cybercrimes as it enforces vigorous punishment for offenders in signatory nations, however, the reality is not the same. It has been observed that many signatories fail to do the same.[5] It has been noted by the critics that for the convention to act as a deterring agent, more nation-states will have to be a signatory to the convention. They noted that the participant countries are not really the epicentre for the cybercriminals to operate freely.

The hotspot nations that are frequently used by hackers are, Yemen and North Korea, neither of them being signatories to the convention. Another point of concern raised by civil liberal groups is that this convention curbs individual privacy rights and overpowers state surveillance[6].

III. Hague Convention On Jurisdiction And Foreign Judgments

The Hague Convention on Choice of Court Agreement is a multilateral treaty extending its scope to the enforcement of judgments brought up by one nation concerning the other nation. It was formulated in 2005 and provides a structural framework for rules concerning jurisdiction agreements. Nations may become a part of the abovementioned Convention by either

1. signature followed by ratification, acceptance, or approval, or
2. by accession. It requires two ratifications or accessions for it to enter into force.”

The Convention accommodates various conditions in which a Contracting State may make presentations that limit its application. For instance, a state with a solid interest in not adhering to the abovementioned convention to a particular matter can announce that it won’t make the convention applicable to the matter at hand. That declaration will have an impact both in the relevant state itself and furthermore in the other Contracting States, who need not have any significant bearing the Convention.

Scope Of The Convention

A Contracting State can likewise decline to have a complementary relationship with another Contracting State. It can do this by telling the depositary that agreement by another state ought not to set up relations between them, in which case the Convention will have no impact as between those two Contracting States.

There are certain matters that see themselves excluded from the ambit of the Convention. Matters relating to intellectual property rights, privacy, certain antitrust issues, etc are not subject to the enforcement of the Convention.[7]

There are additional arrangements that clarify that the Convention won’t influence the utilization of different settlements where certain models are met, eg where the deal being referred to was finished up before the convention.

When Can Recognition Or Enforcement Be Refused?

There are certain grounds under which a judgment is not recognized under the Convention. These grounds include the improper serving of notice by either of the parties, obtaining of the judgment by fraud which is in turn against the public policy. The enforceability can also be questioned on the grounds of the proceedings of the state of origin being in contravention to the agreement to locate and determine disputes in another jurisdiction.

IV. Conclusion

The international character of cybercrimes has waged a war against them, both nationally and internationally. There is constant change in the computer and internet world due to which, international cooperation is highly expected for the countries to stand in solidarity and tackle the virus. The above-mentioned conventions and regimes are targeted to fight cybercrime and achieving cooperation.

Even though India is not a signatory to the European Convention on Cybercrimes, it is putting all its effort to fight it. It has been instrumental in enacting several municipal laws such as the IT Act of 2000, and the IT (Amendment) Act of 2008.[8] However, these efforts are not enough to curb the problem of cybercrimes, and hence, a more holistic, cooperative approach is sought after.

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[1] Xingan Li: International Actions against Cybercrime: Networking Legal Systems in the Networked Crime Scene; Webology, Vol 4, No. 3, September 2007, Date of Access: 10.10.2019 Available Here

[2] The Council of Europe is an international organization, established in 1949 and composed now by 47 member states, with the aim of promoting democracy and protecting human rights and the rule of law in Europe

[3] Smith et al., 2004, 86; Flanagan, 2005, 108

[4] William New, “Privacy agenda in 2002 has an international flavour,” National Journal Technology Daily, Jan. 23, 2002; “Under Antiterror Law, Government Can Use U.S. Standards to Nab Foreign Hackers,” Associated Press, Nov. 21, 2001.

[5] “European Cybercrime Pact Aims to Set Global Benchmark,” Agence France Presse, Nov. 22, 2001.

[6] Declan McCullagh, “Global Cybercrime Treaty Gets Senate Nod,” Silicon.com, Aug. 7, 2006.

[7] Information provided by e-mail by Albert C. Rees Jr, Computer Crime & Intellectual Property Section (CCIPS), Criminal Division, U.S. Department of Justice, 2 April 2010

[8] Anuraj Singh: Studies Report on Cyber Law in India & Cybercrime Security; International Journal of Innovative Research in Computer and Communication Engineering; Vol. 5 Issue 6; June 2017 Available Here

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