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Saying No to the ITRs

The afternoon of 13 December in Dubai is notable for one important deadline—“declaration” if a Nation State is willing to accept the obligations of the resulting treaty instrument and if so, subject to what conditions.

It is worth emphasizing that multilateral treaty instruments are serious constraints on a Sovereign’s powers, and most nations even if they do sign, make general declarations that provide escape routes to the obligations. In the case of the International Telecommunication Regulations that date from 1850 and have no real reason to exist today, there are no real value propositions, and plenty of negative ones. The ongoing efforts in Dubai to stuff all kinds of utterly inane provisions into the ITRs, dramatically increases the adverse obligations. The measure of success for the WCIT is arguably a lack of signatures!

Furthermore, there are no real adverse consequences to not signing or accepting the obligations. This is not only conjecture, but the experience of the United States which did not sign the treaty instrument or even attend the WCITs for 110 years, and for the two recent ones the U.S. did attend, it declared that it would not be bound by most of the provisions. What the U.S. said over those many decades is worth recounting.

For the 28 years after the first ITRs were crafted at Dresden in 1850, they were not even relevant to the U.S. as the U.S. networks were isolated in America and privately owned. (Louis Napoleon imported those provisions into the Paris agreement in 1865 that became reinvented as the starting date for the provisions.) In nations outside the U.S., networks were owned and operated by State agencies. The first Transatlantic Cable in 1866 altered the isolation. However, the U.S. made a fundamental decision that it would not attend WCITs or sign the resulting ITRs. Only U.S. private network operators attended—which gave rise to the creation of the Recognized Private Operating Agency concept.

It was not until the ITU’s actual formation at the Plenipotentiary Conference at Madrid in 1932, that an explicit statement on the ITR’s by the U.S. became necessary. In the record of numerous committees dealing with the integration of previous treaty instruments, the U.S. delegation of the United States declared why the ITRs were unacceptable. In many of these discussions, the U.S. was joined by Canada and faced hostility from the USSR. (How times don’t change.)

From the beginning of our deliberations, the Delegation of the United States of America believes it can hasten the work by indicating briefly the basic principle upon which it participates in the Conference. This principle stems from the fact that in the United States of America, the means of electronic communications are the property of private companies that operate them. The United States of America has never been a party to the International Telegraph Convention because, by virtue of its constitutional and legal system, it cannot undertake obligations.

Commitments that the government can take are those that serve to protect the public and its use of services, but the responsibility for the management and operation of these services belongs to operating agencies themselves. These impediments which have Telegraph Convention impossible, still exist. They cannot be removed by changing the name of the act. We would like to meet the wishes of other governments, who suggest that the Conventions for radiotelegraph and telegraph should be met, but they should understand that we cannot make commitments that as we stated clearly we are unable to accept.

The position of the U.S. in 1932 was underscored by the well-known metrics that the U.S. through its manner of providing services, resulted by far in the most rapid introduction of equipment and services of any nation in the world, as well as the extensive innovations. Again, it is ironic today how similar the situation is at WCIT-12 in view of the utter failure of the ITU to bring about new services and innovation, and proposals to expand the ITRs to apply to all private providers and services - which is being proffered as a grand new ITR model for the world. The U.S. declaration in 1932 is even more applicable today to the ITU institutional megalomania now unfolding.

In the subsequent ITU 1947 treaty conferences, the U.S. entered the following declaration.

The United States of America formally declares that the United States of America does not, by signature of this Convention on its behalf, accept any obligation in respect of the Telegraph Regulations, the Telephone Regulations, or the Additional Radio Regulations referred to in Article 13 of the Atlantic City Convention.

When the U.S. for the first time signed the 1973 Telegraph and Telephone Regulations, it limited its obligations both by declaring they would not apply to any North American traffic nor to any services other “those open to public correspondence.” The provisions themselves applied very narrowly only to legacy international telecommunication services and Recognized Private Operating Agencies.

When the WCIT-88 joined the separate treaty instruments into the International Telecommunication Regulations and attempted to expand them to many new kinds of international telecommunication services, the U.S. with considerable reluctance, ultimately signed the result. It was apparent already in 1988 that the ITU-T was a failed mechanism outside of legacy services, and that any ITR obligations to implement ITU-T standards and other requirements was foolhardy. As a result, the U.S. made the following declaration.

The United States of America formally declares that it does not, by signature of these Telecommunication Regulations, nor by any subsequent approval thereof:

a) accept any obligation to enforce any provision of the domestic law or regulations of any other Member;

b) endorse, in any way, domestic procedures of other Members which would require approval for providers of telecommunication services and services dependent on telecommunication transport seeking to do business outside the United States of America;

c) accept any obligation in respect of the application of any provision of these Regulations to service within the United States with respect to telecommunication services between the United States, on the one hand, and Canada, Mexico, and Saint-Pierre and Miquelon Islands, on the other hand, and to the rates applicable to such services;

d) accept any obligation in respect of the application of any provision of these Regulations to services other than public correspondence services.

It is the understanding of the United States of America that:

a) the Recommendations of the International Telegraph and Telephone Consultative Committee are produced for voluntary consideration by, among others, providers of international telecommunication services and manufacturers of telecommunications equipment;

b) its rights and obligations are determined by the Telegraph and Telephone Regulations (1973) among Members party thereto, until the United States and such Members express their consent to be bound by these Telecommunication Regulations in accordance with the provisions of the basic instrument of the International Telecommunication Union to which the Member is a party.

The only remaining unknown of interest out of WCIT-12 is how many nations will 1) not sign the resulting instrument, or 2) enter wholesale reservations to all the provisions. Option 1 is the better choice. We will all find out on 13 December.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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