[governance] ITU vs. ICANN

[William Drake]

Hi

No surprises, some governments, including GAC members, have been saying this for years. A few considerations:

With regard to the possible extent of support, even within the RCC (which BTW lists on its website Telegraph Network Modernization as one of its work areas)  only 8 of the 12 governments have endorsed the proposal.  Looking beyond them, one imagines there could be support from (just guessing) China, Pakistan, the Arab countries, parts of Africa, Cuba, and then…who else?  Maybe a few other Asian and Latin American governments, don't know; maybe there are even some European ministries that in their heart of hearts would like to see ITU oversight...one hopes there sufficient EU coordination to offset any such yearnings...But a majority of the 192 member states?  This seems unlikely going in; whether any plenary debates, regional and back channel consultations etc could shift positions one way or another is impossible to know ex ante.   In any event, a more accurate subject line for this thread would be A Group of ITU Members vs ICANN. 

It's not clear to me in what form this proposal is being made; maybe someone on the ground in Guadalajara can clarify?  Other parts of the RCC doc are clearly marked as draft resolutions, but this proposal is not.  As Avri's correspondent notes, it does matter whether a text is integral to the Constitution or Convention or is instead a Resolution, Recommendation, or Opinion.  And the Final Acts do always include lengthy lists of national Declarations and Reservations, which can be quite interesting reading.  Often these have been on wider political issues like apartheid, Palestine, the US embargo on Cuba, etc, but there's also stuff of direct relevance to global telecom governance as well.  For example, the US for many decades included in its reservations a statement saying it would not be bound by the International Telegraph and Telephone Regulations, a key substantive treaty that was long used to restrict competition, private networking, etc, and the revision of which is also on the table and of interest viz the Internet.  More generally, many governments routinely make reservations to the effect that they reserve their sovereign rights to protect their interests through any actions they deem necessary, which obviously allows a certain latitude.

While it's unlikely the conference will ultimately adopt a wildly divisive text that is opposed by the industrialized countries, many developing countries, the global private sector, etc, or that the US would ever agree to be bound to such a provision, this does finally bring to a head some politics that have been percolating for a long time and could unleash new pressures in various settings…UN, ICANN, nationally, etc.   So it merits close tracking…hope there'll be discussion in a webcast session.  It also raises once again a point I've been flogging to no avail on this list off and on for seven years, which is that it'd be sensible for IGC members to follow events in the ITU more, inter alia since this rather than the IGF is where the real intergovernmental stuff is happening.  It's a pity there are no CS organizations prepared to test the secretariat's frequent declarations of openness to CS participation and actually apply to be sector members in ITU-T or ITU-D; the only related entity participating is ISOC, which has made many good interventions against heavy intergovernmentalism but has not sought to be a vehicle for wider member/community/CS engagement etc.

Best,

Bill



On Oct 8, 2010, at 11:13 PM, Avri Doria wrote:

> 
> On 8 Oct 2010, at 13:04, Avri Doria wrote:
>> 
>> I do not see why the US would have to accept it.  Is there a controlling treaty that the US has signed that indicates it MUST accept all ITU decisions?  I did not have the impression that this was the case.  Can anyone point me to the law on this?
>> 
> 
> I was sent the following tidits, with permission to pass them on.
> 
> They confirm to me that the even if the ITU passes this thing, no country, including the US, will be bound by it.
> 
> 
> ---
> 
> 
> The Plenipotentiary Conferences produce Final Acts.  Some of those could include changes to the Constitution and Convention, which are treaty instruments.  It also produces Resolutions, which are not binding on countries unless they are ratified.  At the official signing of the Final Acts, at the end of the Plenipot, it is normal for countries (Member States) to take "Reservations" on some or all of the Conference outputs, as described in Article 32B of the Convention, reproduced below.  I managed to find a copy of the Final Acts from the 2006 Plenipot that I think is accessible without a TIES account at: 
> 
> http://www.itu.int/council/groups/stakeholders/Background-Documents/final-acts.doc
> 
> If you search you can find all of the Reservations taken at that time. 
> 
> As for ratification, in democratic countries, this normally requires an Act of Parliament or equivalent.  The reservations can be incorporated even in the act of ratification, as for example:
> 
> "United States of America
> "The Government of the United States of America has ratified the Instruments amending the Constitution and the Convention of the International Telecommunication Union (Antalya, 2006). The instrument of ratification was deposited with the Secretary-General on 16 January 2009. The Government of the United States of America confirmed Declarations and Reservations made at the time of signature."
> 
> Bottom line, the provisions of the Plenipot are only binding upon states with the consent of the state.
> 
> 
> ==============
> 
> ARTICLE 32B
> 
> Reservations
> 
> 1	As a general rule, any delegation whose views are not shared by the remaining delegations shall endeavour, as far as possible, to conform to the opinion of the majority.
> 
> 2	Any Member State that, during a plenipotentiary conference, reserves its right to make reservations as specified in its declaration when signing the final acts, may make reservations regarding an amendment to the Constitution or to this Convention until such time as its instrument of ratification, acceptance or approval of or accession to the amendment has been deposited with the Secretary-General.	
> 
> 3	If any decision appears to a delegation to be such as to prevent its 
> government from consenting to be bound by the revision of the Admin- istrative Regulations, this delegation may make reservations, final or provisional, regarding that decision, at the end of the conference adopting that revision; any such reservations may be made by a delegation on behalf of a Member State which is not participating in the competent conference and which has given that delegation proxy powers to sign the final acts in accordance with the provisions of Article 31 of this Conven- tion.
> 
> 4	A reservation made following a conference shall only be valid if the Member State which made it formally confirms it when notifying its consent to be bound by the amended or revised instrument adopted by the conference at the close of which it made the reservation in question.
> 
> 
> 
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***********************************************************
William J. Drake
Senior Associate
Centre for International Governance
Graduate Institute of International and
 Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
www.graduateinstitute.ch/cig/drake.html
www.linkedin.com/in/williamjdrake
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