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After Saying No in Dubai: What Next

What occurred in Dubai on 14 December was unprecedented in the history of the ITU. It was unprecedented in the history of international telecommunication law. Most of the major nations of the telecommunication world rejected a profoundly broken treaty instrument that had no reason to even exist. A large number of “minor” networking nations accepted the obligations of the treaty instrument, although almost all of them entered significant reservations. In the long history of telecommunication law and intergovernmental organizations since 1850, this has never occurred.

This also was no minor treaty. It went to the core of how nations deal with international telecommunication networks and services today. It went to continuing a legacy approach to these matters that had existed for the past 162 years. It went to the most basic constructs of what the International Telecommunication Union is and does as an intergovernmental organization.

In the process, the world’s principal networking countries also rejected the unrelenting advocacy and tactics over more than ten years of a Secretary-General, his staff, and the supporting Nation States that promoted a kind of ITU megalomania as the global solution for anything and everything related to telecommunications and IT systems.

It was not surprising that this historic rejection occurred. The proffered International Telecommunication Regulations were not only unnecessary and wrong-headed in their entirety in today’s world of global communications. They contained multiple specific perverse provisions in every clause of the treaty and appended resolutions that advanced extreme agendas already in play.

The worst aspect of the new provisions, however, was the attempt to expand their application and the related jurisdiction of the ITU to “any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service…” to the public. Given the reality that the telecommunication and IT world today exists just about everywhere else than the ITU, such an expansion of the ITU’s scope is nothing less than delusional. Looking to the ITU for solutions to today’s networking challenges described in the ITRs, also ultimately harms those nations least able to afford what is little more than ITU Snake Oil. Those nations that signed the ITRs and actually accept the obligations have essentially consigned themselves to a fundamentally broken approach to developing their networks and participating in the global network economy—a kind of second-class network and economic development status.

The way forward now is uncertain. Clearly the ITU needs major reform. The next treaty making opportunity to bring about actual reform is the 2014 ITU Plenipotentiary Conference. The current Secretary-General is also a lame duck, who additionally led a number of its members to jump off a “telecom law cliff.” So it isn’t clear where the leadership will come from, although those potentially in the running for the next Secretary-General may be able to provide viable visions for a new kind of ITU that eschews the institutional megalomania and facilitates a completely open collaboration among the diverse industry activities today where the real expertise and solutions exist.

Any way forward must also deal with the first of the Dubai Debacles—namely the WTSA agenda for the ITU-T put in place for the next four years that has copious links to the egregious WCIT/ITR extreme agenda items. Indeed, on the last day of the WCIT, China’s government was calling for participants at a January 2013 meeting in Beijing to advance their cloud computing regulatory agenda. There are a significant array of such highly adverse developments in play in the ITU-T, and they will be occurring when essentially all of the ITR non-signatory nations and industry will be even more reluctant to devote any resources to these machinations.

The months following WCIT-88—which was far less institutionally traumatic—resulted in some major institutional reform. The late Secretary-General Butler as one of his last major initiatives in office—pushed the only useful part of the ITR’s, the Art. 9 provisions, into what is now the ITU Constitution. This action allowed the ITRs to essentially become completely irrelevant—which quickly ensued.

The late Secretary-General Pekka Tarjanne who succeeded Butler, encouraged development of the first substantial efforts to open up the ITU-T as well as move it out of the ITU in an effort to save whatever was left of the meaningful work in that body. Lastly, most of what are essentially the ITR-12 non-signatories, pressed for major reform in public international law in what is now the World Trade Organization. The WTO General Agreement on Trade in Services helped bring about a permanent diminution and compartmentalization of ITU treaty instruments.

The answers to the WCIT-12 “what next” question likely lie in similar initiatives over the next two years and beyond. Given the scale of the rejection of the ITRs as well as the WTSA agenda, there seems also like an opportunity for the non-signatories and their industries and sympathetic international organizations to begin self-organizing to develop, advocate, and implement needed strategies going forward.

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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