The United Nations Cybercrime Convention and Challenges to the Principle of Non-Refoulement

Kasampong Pongthai, Thailand 

In the twenty-first century, the rapid advancement of information technology is increasingly transforming individuals across states into interconnected members of a global society. Communication and expression through online platforms have become fundamental to identity formation, relationship building, and the facilitation of global connectivity, thereby aiding the process of  globalization. Nevertheless, the accelerated development of technology has not only reshaped human lifestyles and modes of communication, but has also generated new legal challenges for refugees through the emerging cybercrime framework established under the United Nations. In particular, significant concerns arise regarding the Principle of Non-Refoulement, a norm of customary international law designed to protect individuals from being returned to situations where they may face persecution, danger, or torture in their countries of origin (United Nations 2011). Such concerns are especially relevant to Thailand, given its longstanding involvement with refugees and migrant populations (Thipphayaphokin and Pitakanjanakul 2026).

On 25 October 2025, the United Nations Convention against Cybercrime was signed by representatives of more than 68 United Nations Member States in Hanoi, Socialist Republic of Vietnam (Ministry of Foreign Affairs 2025). The Convention constitutes the first international legal instrument established within the United Nations framework. It aims to strengthen international cooperation, as well as providing assistance and support to Member States in the effective prevention and suppression of cybercrime (United Nations). While the Convention seeks to establish a global framework for addressing cyber-enabled criminal threats, concerns remain regarding the breadth of certain provisions and their potential implications for human rights protection.

Particularly noteworthy is Article 2(h), which establishes the definition of serious crime. The provision appears to be drafted in broad terms and may give rise to divergent interpretations across states with differing legal and political systems. Rather than being confined to a narrow definition of cybercrime, the scope of the provision extends to criminal offences punishable by imprisonment for a term of four years or more (United Nations). Such an expansion may generate risks that are not limited to cybercrime alone, but may also create opportunities for states to classify a broad range of offences as serious crimes under domestic law. Therefore, any conduct carrying a sentence of four years imprisonment or more could potentially fall within the Convention’s ambit, depending on the interpretation adopted by individual states.

In this regard, the definition of a serious crime could potentially be employed as a political instrument to suppress dissent. Additionally, it could serve as the basis for requests for Mutual Legal Assistance (MLA), enabling states to seek access to digital information or facilitate extradition proceedings against individuals critical of governmental authority (Brown 2025). Such conduct, particularly political expression, may in some jurisdictions be characterized not merely as ideological disagreement but as acts affecting national security or constituting terrorism-related offences (Muntarbhorn 2025). Consequently, political dissent expressed through digital platforms may, in certain contexts, be reframed as criminal conduct falling within the Convention’s definition of serious crime. This raises concerns regarding the potential erosion of international refugee protection mechanisms, particularly for individuals persecuted on the grounds of political opinion.

Thailand’s position as a signatory to the Convention, despite not yet having ratified it, further illustrates the complexity of these concerns (Ministry of Foreign Affairs). A comparative example can be drawn from the situation of Uyghurs in Thailand who may seek refugee protection on political grounds due to expressions of opinion considered contrary to state ideology. Under such circumstances, a foreign state may potentially invoke the Convention’s legal mechanisms to characterize such conduct as threatening national security or constituting terrorism-related activities, thereby satisfying the threshold of serious crime under the Convention (Laws on Countering Terrorism 2016). This may result in requests for legal cooperation with Thailand concerning the transfer or return of such individuals.

Furthermore, even if Thailand does not regard the political expression of refugees as constituting a serious criminal offence, the Convention may not impose a strict requirement of dual criminality in every context of international legal cooperation. Thus, conduct that is not criminalized under Thai law may nevertheless be treated as a criminal offence under the law of another requesting state. As a consequence, Thailand may face legal or diplomatic pressure to provide digital evidence or information, which could ultimately facilitate the identification of refugees and increase the risk of return to their countries of origin (Brown 2025).

Although Thailand has enacted the Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2565 (2022), particularly Section 13, which expressly incorporates the Principle of Non-Refoulement into domestic law, (Prevention and Suppression of Torture and Enforced Disappearance Act 2022) practical difficulties may still arise when foreign governments invoke international obligations relating to the suppression of serious crimes and cyber-enabled terrorism. While the Convention appears to permit state parties to refuse cooperation where requests are politically motivated or intended to prosecute individuals on the basis of political expression, proving such motivation in practice may be very difficult (United Nations Convention against Cybercrime 2024). In many instances, requests framed in terms of national security or cybercrime may obscure their underlying political dimensions, thereby limiting the practical effectiveness of these safeguards.

These developments reflect a broader tension within contemporary international law. Although the United Nations seeks to establish legal mechanisms to combat cybercrime and strengthen international cooperation, the Convention may still contain legal ambiguities capable of affecting refugee protection systems. In particular, there remains a risk that existing frameworks of international criminal cooperation could be used in ways that indirectly undermine the Principle of Non-Refoulement by facilitating the identification, surveillance, or return of politically vulnerable individuals.

Therefore, when considered within the Thai context, Thailand’s decision to sign the Convention may reflect the State’s commitment to combating transnational cybercrime, particularly online scam operations that have significantly affected the country (Global Partnership against Online Scams 2025). Nevertheless, should Thailand seek to ratify the Convention? It may be necessary to consider entering specific reservations or interpretative safeguards to ensure that obligations arising under the treaty do not adversely affect the Principle of Non-Refoulement. Otherwise, limitations on refugee protection mechanisms in Thailand may emerge, potentially affecting both the rights of refugees and Thailand’s international standing in the long term.

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