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Holding Trump Accountable Under Public International Law

Trump and his enablers are well known to disrespect if not disdain legal systems, including public international law. He has effectively abrogated every treaty instrument relating to international communications at the whim of a tweet. His behavior has dishonoured the USA in a way that will take years to remedy. Trump’s actions to ban access to Android Operating System updates on Chinese products have significantly harmed cybersecurity worldwide. His latest summary actions against Tik-Tok and We-Chat to further a Trump Firewall are beyond reprehensible.

However, international legal systems still exist and can be leveraged to begin holding Trump accountable. Some of the potential causes of action are legislative in nature and operate over a longer time period. There is a relatively unknown mechanism for reporting infractions and enhancing accountability that is described here. Although, these actions must be done by Nation State representatives, they can potentially be very effective and enhanced as a result of Trump’s extraordinarily egregious behavior.

Public International Law of the ITU

The treaty instruments of the International Telecommunication Union (ITU) have provided the fundamental foundation for all international telecommunication since 1850. Every nation in the world exercises exclusive, absolute sovereignty over its communication networks and services. However, through the ITU treaty provisions which have been universally ratified, those same nations agree to interconnect their communication networks, transport traffic, and allow for services across their borders for larger social and economic good.

All electronic communications today are based on these treaties. Except during time of war, no nation is permitted to take the kinds of unilateral actions taken by Trump. Consistent adherence to these norms has existed over the past 170 years among almost all nations and remain a bedrock of international cooperation.

Causes of action pursuant to ITU Resolutions 64 and 69

The idea for a global norm to ban unilateral, discriminatory denial of access to network facilities and services arose at the ITU’s World Telecommunication Development Conference at Buenos Aires in 1994 and resulted in the adoption of WTDC-94 Resolution 5. When the nations of the world convened at the ITU Plenipotentiary Conference at Kyoto later that year, they placed the norm in the Final Acts of the ITU (Kyoto) treaty instrument as Resolution 64 – Non-Discriminatory Access to Modern Telecommunication Facilities and Services. It resolved “that there should be non-discriminatory access to telecommunication technologies, facilities and services established on the basis of ITU-T and ITU-R recommendations” and called for the ITU to play a leading role to implement the norm.

Eight years later, when the nations of the world convened at the ITU Plenipotentiary Conference at Marrakesh in 2002, a concern for non-discriminatory access to Internet resources was expressed by the German ambassador to the assembled nations. He stated that “the [Internet] should, therefore, be regarded as an important part of national infrastructures and non-discriminatory access for all citizens and companies to a stable and secure network must be assured.” See Minutes of the First Plenary Meeting, Plenipotentiary Conference (PP-02), 25 Sep 2002.

In 2006, at the Antalya Plenipotentiary Conference, Resolution 64 was expanded to include “Non-discriminatory access to modern telecommunication/information and communication technology facilities and services.”

Two years later, when the World Telecommunication Standardization Assembly (WTSA) was convened at Johannesburg in October 2008, a collective concern arose that unilateral actions might be taken to access Internet-based services. The result was Resolution 69 directed at all Nation-States “to refrain from taking any unilateral and/or discriminatory actions that could impede another Member State from accessing public Internet sites, within the spirit of Article 1 of the Constitution.” Article 1 is a list of the eighteen reasons why all nations have entered into a universal treaty that enables global communications among themselves and extends back to 1850.

Especially significant was that WTSA-2008 provided a cause of action mechanism for Resolution 64 infringements—in the form of a process to enable a nation to report incidents of where another nation impeded access to Internet services. This Resolution 69 mechanism was subsequently implemented via a web-based infringement portal that allowed not only reporting, but for responses by the alleged infringing nation. The concept was to allow both for transparency and due process and enable global shaming for egregious unilateral behavior.

As concern over unilateral Internet actions grew after 2008, the support for Resolutions 64 and 69 among the world’s nations increased significantly. At the Plenipotentiary Conference at Busan in 2014, the WTSA Resolution 69 provision was added to Resolution 64 of the ITU treaty, stating that nations should “refrain from taking any unilateral and/or discriminatory actions that could impede technically another Member State from having full access to the Internet, within the spirit of Article 1 of the ITU Constitution and the WSIS principles.”

The expanded scope of concern was also reflected at the WTSAs held in 2012 and 2016. The scope of Resolution 69 was widened to include “use of Internet resources and telecommunications/information and communication technologies,” and numerous links to other related intergovernmental activities and mandates were identified. Additional responsive actions were also added to encompass and involve almost all ITU bodies, including “to submit contributions to the ITU-T study groups that contribute to the prevention and avoidance of such practices.”

As Trump became increasingly unstable and hostile to international cooperation after coming into power, the ITU Plenipotentiary Conference held at Dubai in late 2018 witnessed a new focus on Resolution 64. Its non-discriminatory access norm appears no less than 22 times throughout the treaty instrument. See Final Acts of the Plenipotentiary Conference (Dubai, 2018).

At this point, the actual reporting of incidents pursuant to Resolution 69 has been minimal—consisting of 37 incidents identified by Sudan against the United States between 2009 and 2016. The incidents reported are actually very good examples of unilateral, discriminatory transgressions of Resolution 64 and include USA impairments of access to website and cybersecurity tool providers, operating system vendors, application providers and associated services. The last two incidents were filed in April and May of 2016 and describe several incidents, including the banning of access to Apple Inc. iPhones, iPad and Operating Systems. Rather embarrassingly, the USA has never once provided a response.

Potential Actions Against Trump

As a result of Trump’s recent actions and in light of the next WTSA being held in three months with preceding meetings of ITU-T Study Groups, there are several potential actions that could ensue to implement the Resolution 64 treaty provisions.

The simplest action would simply consist of any of the 192 other ITU Member States to begin filing Resolution 69 complaints concerning Trump’s actions similar to those done by Sudan using the extremely easy on-line filing process. Although USA citizens adversely affected by Trump’s banning cannot themselves file an incident against Trump, other national administrations could file on behalf of individuals, classes of individuals, or organizations in the USA. The net effect of this activity in itself can be reported publicly and would constitute a global shaming of Trump’s behavior and an affirmation of public international law.

Resolution 69 also provides for several additional actions that significantly further amplify the submissions. The ITU-T bureau Director is required to integrate and analyse the reported incidents in reports to the Member States, the Standardization Advisory Group, and the next WTSA, which occurs in November.

Any ITU-T members can also make submissions “to the ITU-T study groups that contribute to the prevention and avoidance of such practices.” With several study group meetings occurring in the coming weeks, actions could be undertaken there through submissions that establish new work items and provide reports to the WTSA-20.

The three ITU Directors (Telecommunication Standardization, Radiocommunication and Telecommunication Development Bureaus) must also “report on progress on [the Article 69] resolution through a report of the Secretary-General to the ITU Council.

It is the WTSA-20 itself, however, that could serve as a means for collective legislative action against Trump’s unlawful behaviour that profoundly affronts the basic tenets of the ITU and international cooperation for global communication. Here, there are many options ranging from enhancement of Resolution 69, creation of new ITU-T Questions for multiple Study Groups, and recommendations to the next Plenipotentiary Conference. Provisions could even be made for entities other than Nation States to file incident complaints.

It is noteworthy that WTSA-20 convenes on 17 November—exactly two weeks after the U.S. national election that should likely expel Trump from office. However, Trump’s representatives will still be representing the U.S., and the new Biden Administration will not come into power for two months. As occurred in the past, it seems essential for the nations of the world to strongly condemn Trump’s conduct and to set both a benchmark and a continuing mechanism for promoting acceptable behaviour under public international law. In a world of global 5G/F5G extraterritorial virtualized architectures and services, that benchmark concerning unilateral or discriminatory actions that could impede technically another Member State will be especially critical.

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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WTSA-20 Postpones to February Anthony Rutkowski  –  Aug 11, 2020 10:38 AM

Late breaking news.

WTSA-20 has been postponed to convene 23 Feb - 5 Mar.  Thus, with reference to the last paragraph in the article, the USA delegation will be that of the new Biden Administration.  This is good.

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