ANALYSIS OF THE CONVENTION
The Budapest Convention is the world’s first international treaty against cybercrime, also named as the Council of Europe’s Convention on Cybercrime, The convention is focused on crimes perpetrated over the Internet and other computer networks, and it includes measures that address computer-related fraud, copyright infringements, child pornography, and network security breaches.
According to the preamble, the fundamental goal is to “pursue… a common criminal policy aimed at the protection of society against cybercrime, inter alia, by adopting appropriate legislation and fostering international cooperation.”[1] The Convention aims to harmonise member states’ domestic legislation and enhance collaboration among them.
The Council of Europe in Strasbourg, France drafted the Convention with Canada, Japan, the Philippines, South Africa, and the United States as observer states. The Committee of Ministers of the Council of Europe approved it on November 8, 2001, at its 109th session, and it was available for signing on November 23, 2001, in Budapest. On July 1, 2004, the Convention became effective.[2]
The criminalization part of cybercrime legislation has been a major focus in most jurisdictions, with new offences being created or existing rules being adapted to suit the issues of cybercrime. The majority of these clauses have changed over time as a result of each jurisdiction’s unique experience. The convention lays out the substantive and procedural measures that must be incorporated into domestic legislation by parties in order to achieve legal harmonisation, which is a prerequisite for efficient international cooperation.[3]
While addressing cybercrime and digital evidence, the “Budapest Convention” is considered an international norm. It provides a structure of international collaboration between State Parties to this convention as well as a roadmap for any country adopting thorough national laws against cybercrime. The Supplemental Protocol renders it illegal to use computer networks to disseminate xenophobic and racist propaganda. The Budapest Convention, on the other hand, does not encompass the entire spectrum of cybercrime. “Identity theft, child sexual grooming, and unsolicited spam emails” are some examples of cybercrime.[4]
HIGHLIGHTS
The Budapest Convention, as articulated by the Council of Europe, underlines some of the key features for countries becoming parties to the convention. Any country is free to join the treaty. The Convention’s primary goal, as stated in its descriptive report, is to:
1. Align the domestic criminal substantive law elements of offences and related regulations in the domain of cybercrime,;
2. Establish domestic criminal procedural law essential for the detection and punishment of such offences and a few other crimes done using a computer system or evidence in electronic form;
3. Establishing a quick and efficient global co-operation regime.
BENEFITS OF BEING A PART OF BUDAPEST CONVENTION
Whereas any country can utilise the Budapest Convention as a standard, the Council of Europe points out that there are substantial benefits to becoming a signatory to the convention. The treaty establishes a legal framework for international cooperation on cybercrime and electronic evidence, including provisions for “to the greatest degree possible” cooperation among parties. The Cybercrime Convention Committee (T-CY), which is the most relevant intergovernmental organisation addressing cybercrime at the moment, is made up of parties. Parties can join in future instrument negotiations and the growth of the Budapest Convention by sharing knowledge and incidents.[5]
Parties to the Convention work together in a trustworthy and effective manner, and there is proof that private sector entities are more likely to work with criminal justice authorities of Parties to the Convention. States that are requesting or have already acceded to the Convention may be designated as priority countries for facilitation initiatives in order to assist full implementation of the Convention and improve their capability to interact internationally.[6]
RUSSIA-LED RESOLUTION
The Russian proposal, titled “Countering the Use of Information and Communications Technologies for Criminal Purposes,” was introduced to the UN General Assembly (UNGA). This latest UN proposal follows prior Russian moves, such as the 2017 “Draft United Nations Treaty on Cooperation in Combating Cybercrime” to establish a UN cybercrime convention.[7]
The Russian strategy allows for the formation of a committee that will meet in New York in August 2020 to devise a new treaty that will allow nation-states to communicate and exchange data in order to combat cybercrime. This proposed Convention goes considerably far outside Budapest Convention in terms of cross-border accessing data, including restricting a signatory’s power to deny disclosing information requested.
This is why some human rights organisations have criticised the UN proposal as a means of extending a Chinese and Russian form of internet governance, also known as the “closed Internet” or “state-controlled internet.” If the UNGA approves this resolution, it will become the second worldwide convention on cybercrime. On the basis of national sovereignty concerns, Russia and China have questioned the Budapest Convention and have proposed their own convention at the United Nations.[8]
THE INDIAN STANCE
India has remained a non-member of the Budapest Convention, which is governed by Europe. Despite this, India supported a UN motion headed by Russia to establish a separate treaty. Information sharing with external law enforcement agencies, according to India’s Intelligence Bureau (IB), violates the country’s sovereignty. India has already stated that it will not sign the Budapest Treaty because it was crafted without India’s involvement.[9]
DRAWBACKS OF THE CONVENTION
The International Convention on Cybercrime has also been heavily criticised, both for its specific provisions that fail to protect individual and state rights, and for its overall inadequacies in ensuring a cyberspace void of criminal activities. The Convention’s provisions have been criticized for allegedly intruding on state sovereignty. Article 32, in particular, has caused controversy since it permits local police to monitor servers in another country’s territory without asking permission from the country’s authorities.
Stakeholders agrees that the existing system of cross-border data exchange for law enforcement, known as the Mutual Legal Assistance Treaty (MLAT), is inadequate in the internet age. However, the question of whether to update MLAT or create a whole new system for cybercrime in the shape of this Convention is still being debated. Since its inception in 2001, this Convention has been pleading for Indian participation, but India has refrained from joining.
The 12th T-CY’s Plenary (at page 123) decided that the Convention’s mutual legal assistance provision was too complicated and time-consuming in practice, rendering it ineffective. The Convention’s requirements are manifestly obsolete, and they do not meet the demands of modern investigation.[10]
CONCLUSION
Cybercrimes are considered extraditable offences under the Convention, which allows law enforcement agencies in one nation to collect computer-based evidence for those in another. It establishes a 24/7 communication network to aid with cross-border investigations. This framework must be developed with active participation from all states in order to achieve maximum unanimity and adherence. The Convention’s reach is clearly restricted, with many countries being non-signatories and little room for change in their attitudes. There is a clear need for a one-of-a-kind, egalitarian, and all-encompassing instrument to regulate cybercrime.
[1] Convention on Cyber Crime-Budapest Convention, https://rm.coe.int/1680081561 (last visited Sept 29, 2021).
[2] Eleni D. Chrysopoulou, The Budapest’s Convention as a guarantee limit against cybercrime, https://conferences.ionio.gr/icil2011/download.php?f=papers/055-chrysopoulou-full_text-en-v001.pdf (last visited Sept 28, 2021).
[3] Jonathan Clough, A World Of Difference: The Budapest Convention on Cybercrime And The Challenges of Harmonisation, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2615789 (last visited on Sept. 28, 2021).
[4] Ibid.
[5] Supra note 1.
[6] The Budapest Convention on Cybercrime & treaties, https://ngm.com.au/budapest-convention-on-cybercrime/ (last visited on Sept. 27, 2021).
[7] Shi Tian, Russian resolution to fight cybercrime worthy of support, https://www.globaltimes.cn/content/1175260.shtml#:~:text=The%20UN%20General%20Assembly%20adopted,the%20US%20and%20the%20EU (Last Visited Sept 28, 2021).
[8] Ibid.
[9] Convention on global cybercrime. https://www.drishtiias.com/daily-updates/daily-news-analysis/convention-on-global-cybercrime (Last Visited on Sept 27, 2021).
[10] Supra note 3.
YLCC would like to thank Mili Kanoujiya for her valuable insights in this article.
