Criticism of the 2012 ITRs not valid, says former senior ITU official

As previously reported [insert link], failure to reach agreement in Dubai in December 2012 at the ITU World Conference on International Telecommunication (WCIT-12) resulted in a refusal to sign the treaty that was approved at the conference.  Various reasons have been given to justify not signing the treaty.

Former senior ITU official Richard Hill, now an independent consultant, has published an article in the prestigious Oxford University International Journal of Law and Information Technology.  Hill claims that criticism of the ITRs is not valid from a legal point of view, even if it may be valid for political or other reasons.

By special agreement with Oxford University Press, the full article is available online until INSERT DATE, at INSERT LINK.  Hill's article can be summarized as follows.

The World Conference on International Telecommunications (WCIT-12) was convened in December 2012 at the request of the ITU members in order to revise the International Telecommunication Regulations (ITRs), which had been agreed in 1988.  It was felt necessary to revise the ITRs in light of the significant changes structural and technological changes that have taken place since 1988, in particular privatisation, liberalization, and the growth of mobile and IP-based networks.

Unlike previous ITU conference, the ITU membership failed to reach consensus, with the result that the treaty agreed at WCIT was not signed by all the states present and having the right to sign: 89 signed and 55 did not.

Was WCIT-12 a failure or a success?

WCIT-12 was a failure in the sense that:

• It did not achieve its desired goal, which was full consensus.
• It resulted in a split amongst the membership, resulting in a vote, which is unusual in ITU.
• Media coverage was partly inaccurate, influenced by a misinformation campaign.

WCIT-12 was a success in the sense that:

• There was active participation from all parts of the world.
• There was broad agreement: 90% of the treaty is not controversial, 10% was agreed by 62% of Member States present and accredited to sign.
• Key issues were identified and discussed.
• It was agreed to continue discussions with a view to reaching consensus.

Criticism of the 2012 ITRs

It has been said that the WCIT outcomes establish a new international regulatory regime for the Internet and give new powers to the ITU.  This new regime threatens the current multi-stakeholder model for Internet governance which has proven its worth, and it threatens economic growth and freedom of speech around the world.

In particular a provision in the Preamble of the ITRs creates new rights for states (which threaten established individual rights); new articles on security and spam invite governments to take content-based action which could result in regulation of speech on the Internet; a new Resolution represents a direct extension of ITU’s role and scope into the Internet and shifts the emphasis from community and consensus to centralization through government action. 

Analysis of the criticism

The criticism of the 2012 ITRs appears to be based on a superficial and out-of-context reading of the provisions in question.  When analysed correctly from the legal point of view, it can be seen that the new provision in the Preamble does not conflict with existing rights of individuals or of states; that the new provisions on security and spam cannot be understood to related to content; and that the new Resolution does not in any way expand ITU’s role and scope, while it does recognize the multi-stakeholder model agreed at WSIS.

Thus it is incorrect to conclude that the WCIT outcomes establish a new international regulatory regime for the Internet and give new powers to the ITU.  Nor do they threaten the current multi-stakeholder model for Internet governance or free speech.

A refusal by some countries to implement the new ITRs could deprive their citizens of certain benefits (such as transparency of roaming prices, prevention of numbering misuse, transmission of calling party identification, improved accessibility for people with disabilities, and best practices regarding energy efficiency and e-waste).

Further, non-uniform implementation could create difficulties for companies operating worldwide, if different regulatory regimes emerge. 

In the limit, refusal to implement the new ITRs might result in the development on non-harmonized national practices which might well lead to an undesired fragmentation of the Internet. 

Regarding criticism of specific provisions:

• The new provision in the Preamble does not create any additional rights or obligations, it merely recognizes the rights and obligations that already existed under the Constitution.
• New language in Article 1 regarding “authorized operating agencies” merely aligns the ITRs with the ITU Constitution (which has precedence over the ITRs) and thus does not extend the scope of the ITRs.
• Article 5A on security and 5B on spam must be interpreted in light of Article 1, which defines the scope of the treaty and states that it does not address the content-related aspects of telecommunications.  Since the ITRs do not address content, those cannot be seen to be addressing content.  Thus, those articles are about measures that do not depend on content. There are many such security measures and many such measures to combat spam.
• Articles 5A and 5B call for cooperation amongst ITU Member States. Many countries have initiatives regarding security and spam.  Presumably it would be desirable for countries to cooperate to adopt "best practices" in these area.  That is, practices that clearly do not impinge on human rights and that respect due process  So it would appear that the call for cooperation is positive, because it should make it less likely that some country would (perhaps unwittingly) adopt inappropriate measures.  That is, the call for cooperation appears to make it more likely that security measures would follow the best-practices models that are generally agreed.
• The operative part of Resolution 3 invites ITU Member States to discuss Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums; to engage with all their stakeholders in this regard.  And it instructs the Secretary-General of ITU to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multi-stakeholder model of the Internet as expressed in § 35 of the Tunis Agenda; and to support the participation of Member States and all other stakeholders, as appropriate, in the activities of ITU in this regard.  The Resolution cannot (and does not) expand ITU’s role and scope, and it cannot (and does not) modify the WSIS outcomes.  It does not shift the emphasis from the multi-stakeholder model towards top-down government action, on the contrary, it promotes multi-stakeholder consultations.

Possible ways forward

• Most countries agree to be bound by the ITRs
• Most countries do not agree to be bound by the ITRs
• Most countries implement the ITRs in a non-controversial manner:
• Recognize that Preamble does not prevent suspension of services or otherwise modify existing rights and obligations
• Recognize that there is no extension of the covered entities or of the scope
• Recognize that the security and spam provisions do not relate to content
• Recognize that Resolution 3 does not change the mandate of the ITU