Dilemmas and Dispute Resolution of Human Rights Guarantees in
the United Nations Convention Against Cybercrime: From the
Perspective of the Scope of Criminalisation
Siyuan Qu
Administrative Law School, Southwest University of Political Science and Law, Chongqing, China
Keywords: Criminalisation, UN, Cybercrime, Human Rights.
Abstract: The development of cybertechnology and the increasing frequency of cross-border interactions have made
cybercrime a major challenge in both public and private law. The United Nations Convention against
Cybercrime, which was concluded after many rounds of negotiations to fully coordinate different concerns of
countries, is not only a great achievement in the global governance of cybercrime, but also a brilliant
breakthrough in the difficult period of multilateralism. The human rights controversy over the convention has
long existed but has been less studied, and the failure to clarify the ambiguity will most likely affect the
subsequent entry into force and implementation. Through comparative and interpretative research methods,
comparing the claims of both broad and narrow criminalisation patterns, and focusing on the existing
provisions of the convention to analyse the reality of its criminalisation scope, the study finds that the
convention is not in fact a product dominated by a broad criminalisation pattern. In adher-ing to the stance of
combating cybercrime while taking into account human rights safeguards to the greatest extent possible, a
good job in coordinating with domestic laws for the convergence and harmoni-sation of the convention and
setting up a bona fide research exception term can provide reference for the subsequent improvement of it
and the formulation of its draft supplementary protocol, contributing to the better coordination of the interests
of parties and responding to the purpose of combating cybercrime eventually.
1 INTRODUCTION
1.1 Conclusion of the Convention
The background of the times, in which criminal
offences have become more and more rampant in
virtual space and in which multilateralism and
unilateralism are at war, provided the basis for the
birth of the United Nations Convention against
Cybercrime (hereinafter referred to as "the
Convention") and the necessity for its subsequent
implementation. In recent years, technological
innovations and cross-border interactions have
fuelled the free flow of information and sharing of
resources, while at the same time providing a
breeding ground for cybercrime by taking advantage
of public health emergencies and other crises
(Albader, 2022), posing serious challenges to the
international interests and domestic governance of
countries. Therefore, seeking an authoritative and
stable cooperation system at the international level to
coordinate the interests of multiple parties has
become a breakthrough recognised by most countries.
The United Nations General Assembly adopted the
Convention on 24 December 2024, as the first
universal international convention formulated under
the auspices of the United Nations in terms of global
governance of crimes in cyber-virtual space, which is
highly cohesive of the consensus of multinational
cooperation and bridges the differences in the
legislation among countries (Jiang, 2023), providing
a systematic legal framework for combating
cybercrime in today's world where criminal offences
are increasingly rampant on the basis of digital
networks. And that, it once again proves the
superiority of multilateralism in dealing with global
challenges and provides a reference for other
international issues that need to be addressed
urgently, particularly when pseudo-multilateralism is
posting a threat to world peace.
Qu, S.
Dilemmas and Dispute Resolution of Human Rights Guarantees in the United Nations Convention Against Cybercrime: From the Perspective of the Scope of Criminalisation.
DOI: 10.5220/0014293100004859
Paper published under CC license (CC BY-NC-ND 4.0)
In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 13-19
ISBN: 978-989-758-785-6
Proceedings Copyright © 2026 by SCITEPRESS Science and Technology Publications, Lda.
13
1.2 Dispute and Resolution
The various focuses on the value positions,
institutional needs and ecological foundations of
cybercrime governance among the participating
parties have given rise to a variety of major games and
focal issues in the formulation and implementation of
the Convention (Wu, 2025). Opponents believe that
the Convention, in which the concept of cybercrime
and legislation are broad and universal (Chalana &
Bhanu, 2024), is likely to be maliciously exploited by
some countries and that it should not be ratified
because of its shortcomings of violating human rights,
endangering security, suppressing freedom and
hindering development. Among them, compared with
international cooperation and technology governance
issues, which are the main research hotspots, the
controversy over human rights is particularly
prominent but less targeted research. The concern of
human rights mainly focuses on the belief that the
scope of criminalisation of the Convention is so broad,
leading to the over-interference in human rights.
Therefore, if we do not base our analysis on the
specific text of the Convention to resolve the
disagreements in criminalisation, find a point of
balance between broad and narrow criminalisation
patterns to safeguard human rights, respond to and
resolve the suspicion that broad criminalisation is
detrimental to human rights, and guide the return to
the fundamental purpose of combating cybercrime,
the flaws in the design of the human rights guarantee
system will be the main ground for the opposing
parties to level malicious accusations against the
Convention (Secrss, 2024). This will strengthen the
risk of "group polarisation", which in turn will affect
the ultimate effectiveness of the first attempt to
develop a universal convention in the cyber and digital
domains (Secrss, 2024). At the same time, given that
the Convention has not yet formally entered into force,
timely amendment and improvement of the relevant
provisions or relevant explanations will help more
subjects to understand the purpose of the Convention,
eliminate relevant concerns and actively participate in
signing. Therefore, in order to facilitate the formal
entry into force of the Convention, and provide a
reference for its subsequent refinement and for the
formulation of the draft supplementary protocol, this
study uses comparative and interpretative research
methods to explore the reality of the criminalisation
scope of the Convention on the basis of its specific
provisions, to sort out and respond to existing
disputes, and to provide paths for its improvement.
2 THE DICHOTOMY BETWEEN
THE CLAIMS OF BROAD AND
NARROW CRIMINALISATION
Criminalisation is a complex social issue that requires
a reasonable and effective balance between order
maintenance and human rights guarantee. Overly
broad criminalisation standards may lead to the
conviction of innocent people and, conversely, may
fail to respond to the law-making purpose of
effectively combating crime.
2.1 Broad Versus Narrow
Criminalisation
China, the Russian Federation and other countries
advocate the broad criminalisation pattern, believing
that the scope of criminalisation under the Convention
should be as comprehensive as possible to cover
offences committed through the use of the Internet,
such as telecommunication network fraud. At the
same time, given that the Convention itself has not
responded to the new problems posed by the
development of new technologies, such as artificial
intelligence, it should be revised in a timely manner
in accordance with the needs of practice and
technological changes, expand the types of offences
in due course, and improve the framework by means
of supplementary protocols (Wu, 2025).
States parties to the Budapest Convention,
represented by European and American countries,
supported the narrow criminalisation pattern. They
claim that an overly broad scope of cybercrime
entailed the risk of unduly interfering with human
rights and consider that the scope of criminalisation
should be limited to offences committed against
computer systems and the idea of expanding the
scope of criminalisation must be adopted with caution
(Wu, 2025). For example, Germany argued that the
expansion of the scope of cybercrime to all crimes
committed with computers should be considered with
caution, as the use of computers to commit crimes
was not necessarily cybercrime (Zhang & Gong,
2020). At the same time, they insisted on the principle
of "technological neutrality", with a view to making
the legal framework of the Convention inclusive of
technological developments and avoiding frequent
revisions that would undermine the relative stability
of the rules (Wu, 2025).
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2.2 Causes of Confrontation
2.2.1 Immediate Causes: The Broadness of
the Concept of Cybercrime
Chapter II of the Convention, entitled "Interpretation
of terms", does not define cybercrime, although it
clarifies the meaning of many words and phrases in
the context of cybercrime for the purpose of defining
the nature of the acts in question. Taking into account
the lagging nature of the law, the majority of countries
have not clearly defined the concept of cybercrime at
the legislative level, although some of them have
interpreted it in their effective judicial practice in very
broad terms for purposes of underpinning. At the
same time, the forms and means of cybercrime are
constantly evolving. As a result, the long-term
absence of a uniform framework of rules, coupled
with the complexity and diversity of cybertechnology,
has made it difficult to resolve the problem of the
broad concept of cybercrime. Moreover, there are
differences in the perceptions of cybercrime in
various sectors of society, and there are various
preferences between severe punishment, education
and rehabilitation. To a certain extent, these have led
to differences in the value stance and factors to be
considered by countries in the management of
cybercrime, which in turn affects the development of
the two propositions of scope of criminalisation.
2.2.2 Root Causes: The Choice between
Security and Human Rights
The focus between security and human rights is key
to distinguishing between broad and narrow patterns
of criminalisation, representing the core values of
each. The immediate reason represented by the
broadness of the concept of cybercrime is simply to
serve as a vehicle to provide a platform for adding
one's own values to the two propositions.
The desire of countries to form joint efforts in the
international community to combat crime is based on
the consideration that, on the one hand, it is proactive
in safeguarding the security of the country and its
people, so that, in the event of a threat to security, the
appropriate subjects can be punished in accordance
with international rules. On the other hand, it is a
passive way to improve the means of redress, that is,
in the event that security is violated by any foreign
infringement, redress is available in accordance with
the rules and the state of security is restored.
Sovereignty just establishes a reasonable balance
between the hopes of States. Thus, both the fight
against crime and the emphasis on and protection of
sovereignty can be understood in most international
contexts as an emphasis on national security.
The universality pursued by the Convention
determines that the principles of human rights and
sovereignty have become its two basic principles, and
the game between the two was played throughout the
negotiation process of the Convention. China, Some
countries have consistently insisted that the principle
of sovereignty should be applied to cyberspace as a
prerequisite for the protection of the security of the
country as well as the people's personal property in
the virtual space. However, Western countries,
represented by the United States and EU member
states, based on ideological traditions, glorify
freedom, highlight human rights protection, and even
downplay the importance of national sovereignty
(Wu, 2025). They argue that some criminal
convictions and procedures and law enforcement
measures infringe on privacy and freedom of
expression (Tropina, 2024). Although the notion of
respect for and preservation of human rights is
recognized by the majority of countries, there is still
a substantial variation in the understanding of the
relationship between human rights, sovereignty and
the battle against cybercrime among them (Wu,
2025).
3 RESPONSE AND SETTLEMENT
OF DISPUTES
The essence of international communication is
cooperation and conflict. Being in the stage of the
situation, in the face of the suspicion of the
deficiencies of the human rights protection of the
Convention due to the overly broad conviction, we
should conduct a detailed analysis based on the
existing provisions of the Convention, seek a
compromise to correctly deal with the contradiction
between the increasingly serious situation of
cybercrime and the highlighted need for human rights
protection, and return to the original intention of
gathering international strength to combat crime and
protect the citizens of the world.
3.1 Observations: The Reality of the
Scope of Criminalisation of
One of the main obstacles to establishing a common
strategy for international harmonisation in the area of
cybercrime has been the lack of a consensus over
whether acts qualify as this kind of criminality
(Tropina, 2024). The hasty aggregation of national
Dilemmas and Dispute Resolution of Human Rights Guarantees in the United Nations Convention Against Cybercrime: From the
Perspective of the Scope of Criminalisation
15
forms of criminalisation will inevitably lead to an
expansion of the scope of domestic criminalisation in
multiple countries, leading to a range of problems
such as abuse of power, overpunishment and
ineffective governance. Just operating simple
intersection calculation will also foresee realities that
are incompatible with the domestic context, such as
fish escaping from the net, ineffective crackdowns
and declining public trust, and may infringe on the
human rights of a wider range of potential victims.
While the Convention's middle-of-the-road approach
has temporarily calmed the interests of many, its
subsequent implementation remains a great
challenge. The controversy over human rights
guarantees is now highlighted in the game between
the broad and narrow criminalisation patterns. The
overly broad criminalisation which leads to excessive
interference of human rights has been the focus of
criticism of the Convention by advocates of the
narrow criminalisation pattern. In this context, it is
necessary to return to the specific provisions of the
Convention for practical analysis.
3.1.1 List of Offences
Chapter II of the Convention, entitled
"Criminalisation", covers a total of 11 criminal
entities, including Illegal access, Interference with
electronic data, Offences related to online child
sexual abuse or child sexual exploitation material,
Non-consensual dissemination of intimate images
and laundering of proceeds of crime and so on. In
addition, it also includes content about specific
identification of liability of legal persons,
participation and attempt.
3.1.2 Responding to Questions
Through analysing the opinions of the opponents, the
spirit of the Convention and its specific provisions, it
is clear that the Convention is not in fact characterised
by an extremely broad criminalisation and does not
ignore human rights, which are even guaranteed in
both substance and procedure. The questioning of the
excessive broadness of the criminalisation of the
Convention has been expressed in two main ways,
directly and indirectly.
Clarify Suspicions of Directly Extend the Scope of
the Accusation. The Convention is not an extensive
list of offences. The establishment of the
Convention's system of offences was one of the
controversial issues throughout its formation and
development, with each country expressing its own
concerns on the basis of values, culture and actual
national conditions, and thus proposing different
offences to be included in the Convention. Taking
internet pornography offences as an example,
European countries are more open to adult
pornography and focus their efforts on fighting
against child pornography, while Iran treats adult
pornography in the same way and believes that adult
pornography also needs to be cracked down on
(Zhang & Gong, 2020). On the whole, compared with
the advocates of the narrow criminalisation pattern,
the advocates of the broad criminalisation pattern
believe that the Convention should include offences
other than pure cybercrime, and at the same time take
technological developments into consideration,
trying to make up for the lag in law-making in a
timely manner. However, compared with the text of
the former sessions of the Special Committee, the
final adopted text deleted 17 traditional cybercrime
offences, such as copyright infringement. And in
terms of the constituent elements of each offence,
some of them have also been streamlined and
lightened, such as article 14, paragraph 4, of the
Convention on the determination of the exceptions to
the child pornographic material (Jing, 2024; Li,
2025). It can be seen that the Convention does not
show the characteristics of a broad criminalisation
pattern, but rather favours a narrow criminalisation
scheme. At the same time, the author believes that
there is no basis in reality for criticising the
Convention for being too broadly criminalised on the
basis of the argument that it may be relied upon by
some States to criminalise a wide range of offences at
the domestic level. The Convention itself does not
have the ability to directly intervene in domestic
governance, and how to effectively and appropriately
reconcile domestic and international law mainly lies
at a country's own rule of law capacity and political
strategy.
Dispelling the Suspicions of Indirectly Extend the
Scope of the Accusation. It has been argued that the
Convention is given a broad scope of application
because article 3 of the Convention provides for the
application of it to all stages of the prevention,
investigation and prosecution of offences, while
article 4 provides for the linking of the Convention
with other United Nations conventions, such as The
Convention against Transnational Organized Crime,
by requiring States parties to incorporate into their
domestic legal systems the action of using the Internet
to commit those offences included in these
Conventions (Wu, 2025). Thereby, this indirectly
expands the offence system. In the author's view, this
is not the case.
ICPLSS 2025 - International Conference on Politics, Law, and Social Science
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First, the phrase "applicable to all stages of the
prevention, investigation and prosecution of
offences" is a procedural safeguard, a means of
ensuring that the spirit of law-making can be carried
out and reflected in the entire process of prosecution,
and has no substantive impact on the judgement of the
broadness of criminalisation in substantive terms.
Secondly, the provisions of article 4 of the
Convention on linkage with other conventions do not
establish additional offences outside of those
conventions, and a distinction needs to be made
between offences and crimes in different
jurisdictions, that is, whether or not new criminal
offences are established in essence. To be more
specific, the method in which an offence is
"committed through information and communication
technology systems" does not have the "resistance"
which helps this offender escape from punishment
according to the existing laws, even facilitates the
perpetration. And even if the offence is not committed
in that manner, the circumstances and consequences
of the act are already worth punishing. Furthermore,
paragraph 2 of the article stresses that "nothing in this
article shall be construed as establishing a criminal
offence in accordance with this Convention". It is
clear that article 4 of the Convention is in fact a
cautionary provision, which is intended to remind and
stress the importance of not overlooking the special
circumstances of the use of the Internet to commit an
offence and to reiterate the specificity of the basic
provisions. In addition, the view that the creation of a
new provision is equivalent to the establishment of a
completely new criminal offence is also too arbitrary.
The offence is only a superficial judgement. The
reason why some countries will create a new offence
or article in such situation is that some of the
provisions of the Convention can not be organically
integrated into the existing domestic legal system, so,
in order to better integrate with the treaty, they have
to supplement or explain through these new articles.
Therefore, in the light of the spirit of the purpose of
the Convention, the author believes that articles 3 and
4 of the Convention do not encourage the
establishment of a new criminal offence in
accordance with a Convention other than the two
conventions, which certainly does not lead to the
alleged indirect expansion of the scope of
criminalisation.
Human Rights Concerns of the Convention.
During the negotiation process of the Convention,
human rights issues were one of the focal points of
the game in the draft treaty. While China, Russia and
other countries have consistently emphasised national
sovereignty over cyberspace, countries and regions
led by the United States and Europe are more inclined
to emphasise human rights protection. Under the
impetus of Western countries, the current text of the
Convention has a considerable degree of reflection of
the concern for human rights protection (Secrss,
2024). Article 6 of the Convention, as an independent
provision on respect for human rights, gives great
human rights concern to the fight against cybercrime
in the status of a fundamental principle, and
paragraph 2 of this article also specifically lists the
relevant obligations under international human rights
law, such as freedom of expression, belief and
association, so as to make clear the Convention's
value position of respect for and protection of human
rights. The procedural safeguards set out in article 21,
paragraph 2, of the Convention, the conditions and
safeguards provided for in article 24, the protection of
personal data in article 36, and the affirmation of the
principle of non-discrimination in mutual legal
assistance in article 40, paragraph 22, also reflect that
the Convention has in fact affirmed the protection of
human rights at the three levels of principle,
substance and procedure.
3.2 Breaking the Ice: Combating
Cybercrime as a Priority,
Guaranteeing Human Rights
Secondly
Although the Convention has textually balanced the
scope of criminalisation and human rights guarantees,
dispute is a subjective interpretation of objective
rules, which may accompany the Convention all the
way forward. In the future, with the continuous
development of cybertechnology and changes in the
international situation, the Convention still needs to
be improved and adjusted to meet new challenges and
needs.
3.2.1 Premise: The Need to Understand the
Importance of Human Rights
Guarantees
Human rights and cyberspace have grown so
entwined as policy domains that comprehending one
necessitates ongoing attention to the other (Aliyu,
2022). The controversy between the advocates of
broad and narrow criminalisation patterns fully
reflects the different considerations of human rights
between the two sides. In order to find a compromise
solution to the differences, it is necessary to clarify
the necessity of human rights protection, so as to find
the two protection thresholds at the opposite end of
Dilemmas and Dispute Resolution of Human Rights Guarantees in the United Nations Convention Against Cybercrime: From the
Perspective of the Scope of Criminalisation
17
the spectrum, and the two sides can then negotiate and
consult within this reasonably closed scope. As we
live in the same global village and participate in
building a community with a shared future for
mankind to meet various global challenges, the
improvement and implementation of human rights
protection also need to rely on the strategy of moving
from domestic human rights concepts to international
human rights concepts and finally to international
human rights norms (Mao, 2023). How human rights
are safeguarded in international exchanges reflects
the international responsibility of each country and
the value stance of its domestic governance.
International Responsibility. The establishment of
the principle of the protection of basic human rights
is the result of the joint efforts of the international
community in recent times, reflecting the universal
recognition of the human dignity and value of human
beings. And as a basic principle of international law
explicitly stipulated in international legal documents,
different from jus cogens which mainly regulates
treaty relations between countries, it is applied to all
relations between countries. Respecting, protecting
and fulfilling human rights is a responsibility and a
right of all countries. The global governance of
cybercrime should likewise insist on the
implementation of the basic principle of protecting
basic human rights, and should be integrated
organically with other rules in order to build a just,
prosperous and harmonious cyberworld.
Domestic Governance Requirements. When legal
interests become the only object of protection of the
law, the law loses its meaning of existence. The
establishment of a society governed by the rule of law
and the manifestation of the rule of law's spirit in the
nation will be facilitated when citizens' fundamental
rights are protected by coercive force at both the
substantive and procedural levels. This will give them
the confidence to express their desires and find legal
solutions to their problems. At the same time, human
rights, as a common value of all mankind, is an
important foundation for building international trust,
which, together with respect for national sovereignty,
promotes equal democratic exchanges and
cooperation among countries, providing an
opportunity for absorbing and learning from each
other's beneficial achievements. Governance
practices vary from country to country, and the
transnational nature of cybercrime has made the issue
of how to govern it a hot topic of discussion in various
circles; in the face of the problem of protection and
punishment, human rights safeguards are a necessary
consideration to ensure the legality and legitimacy of
actions to combat cybercrime.
3.2.2 Path of Improvement
Adherence to the Fundamental Position of
Combating Cybercrime. The primary purpose of the
Convention is to strengthen the prevention of and the
fight against cybercrime in a more efficient and
effective manner. The mere pursuit of freedom and
human rights in favour of an narrow criminalisation
pattern is not conducive to the proper functioning of
the Convention, while adhering to an overly broad
criminalisation pattern in order to curb criminality
harshly by blending the views of various countries
will contribute to turning the law into an inefficient
instrument of violence. And the ultimate result of
both approaches is a departure from the original intent
of each. Security is a prerequisite for human rights.
Therefore, the author believes that the subsequent
improvement of the Convention must insist the prior
position of combating cybercrime while taking into
account human rights protection to the greatest extent
possible, rather than constructing a system of "human
rights law" by sacrificing the essential, as draining the
pond to get all the fish. Emphasis on human rights
protection will dilute or even dissolve the purpose of
the Convention in combating cybercrime (Secrss,
2024).
The Interface Between Domestic Law and
Treaties. International treaties are essentially a
coordination of wills between sovereign countries,
and their effectiveness and governance effects
ultimately depend on whether and how a country can
coordinate the transformation and incorporation of
international treaties so that they can live and work in
peace and happiness at home. With the completion of
the criminalisation system of the Convention,
countries should update the relevant terminology in
their domestic laws to ensure that the relevant
connotations are consistent, complete and accurate,
and integrate their domestic policies with the
purposes of the Convention in order to improve the
relevant domestic laws and regulations (Jing, 2024).
The addition of provisions that do not yet exist in the
country, as well as the path for their incorporation or
transformation, should be carefully designed to
ensure that the purpose of the legislation is not biased,
that the constituent elements are appropriate and that
the level of penalties is commensurate with the
country's situation.
ICPLSS 2025 - International Conference on Politics, Law, and Social Science
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Creating a Bona Fide Research Exception Term.
The Convention's provision on illegal access requires
States to criminalise unauthorised access to computer
systems, that is, it precludes the legitimacy of
improvements such as testing systems. As computer
security research is a key driver for improving
cybersecurity, subsequent consideration could be
taken to exclude certain acts that are bona fide and
beneficial to the development of scientific and
technological progress in the international
community of mankind from the offences punishable
under the Convention, so as to ensure the reasonable
self-research and use of information by mankind. At
the same time, in order to prevent some subjects from
abusing this exception, an incrimination line can be
set for the consequences of the act. When
consequences exceed this line, the act should still be
regarded as a crime, and a lighter penalty should be
imposed than that for the act with subjective malice.
However, the determination of good faith, the
reasonableness of the judgement of the method, and
the setting of the severity of the consequence will be
a major problem that is worth discussing.
4 CONCLUSION
An analysis of the history of the discussion of the
Convention and the specific provisions shows that the
Convention has not, as most people believe, become
a "pocket" full of cybercrime offences, and that the
value of safeguarding human rights was reasonably
taken into account by all parties in the conclusion of
the Convention under the guidance of cracking down
on cybercrime. However, the issue of human rights
protection, as an important point of contention in the
formulation and subsequent entry into force of the
Convention, requires the joint efforts of all parties to
resolve and negotiate a balance between different
cultural value systems. In the author's view, under the
stance of combating cybercrime while taking into
account human rights safeguards to the greatest extent
possible, it is possible to better reconcile the interests
of all parties and promote international cooperation
through such paths as better coordination of the
Convention with domestic laws and setting up
exceptions for bona fide research. This study rectifies
the question of the Convention's overly broad
criminalisation to suppress human rights, and
proposes feasible paths to improve human rights
guarantees by taking into account the reasonable
concerns of all parties. So as to help more subjects
understand the purpose of the Convention, eliminate
relevant concerns, and actively participate in signing
it, thus accelerating the effect of the Convention in
combining the strengths of all countries to crack
down on cybercrime and safeguard a wider range of
human rights. However, as to how to carefully
reconcile the Convention with domestic laws and
introduce well-thought-out security exceptions in
accordance with the actual situation of each country,
a certain country may be determined to be the subject
of future research to further deepen the understanding
of this issue and explore the practicality of the
programme.
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Dilemmas and Dispute Resolution of Human Rights Guarantees in the United Nations Convention Against Cybercrime: From the
Perspective of the Scope of Criminalisation
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