[governance] A false consensus is broken

Fri Dec 21 10:42:24 EST 2012

Hi Wolfgang,

Thanks, particulaly for the comment on human rights and the text of
the preamble.

The text is vague, and as you say does not constitute a legal
obligation or new law, however, can be very sure the next time China
etc wish to counter article 19 in some declaration or statement, they
now have a little more treaty text to support them.  Important I think
that governments, whether they sign the ITRs or not, include a
statement noting objection to the text.

Best,

Adam

On Fri, Dec 21, 2012 at 10:45 PM, "Kleinwächter, Wolfgang"
<wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
> Hi Parminder,
>
> I know that you love to play with words. However do not mix up legal language with what a journalist has said who was not in the room but has heard that somebody has said something.
>
> I was the whole time until 3.00 after midnight in the room, night by night. Nobody walked out. However the article says correctly the the US and a many other governments, including Germany, "left the meeting without signing the treaty <http://wftp3.itu.int/pub/epub_shared/GS/WCIT-12/E/web/flipviewerxpress.html> ". This is something different.
>
> I personally support this approach of the German government. ITR are legally binding obligations. The key criteria for any law (and legally binding treaties) is clarity in language, clear common understanding on categories, full consensus on definitions. Ambuigity and diplomatic language which reflects the "agree to disagree" is acceptable in non-binding political instruments (as WSIS or the COE Declaration) but it is unaccetable in a legal binding document.
>
> The quoted article is partly wrong and Kramer gives just a summary. 3.8 was already out (naming and numbering) , 1.1.bis (content ) was seen as a cleaner for 5A and 5B but tghis was not widely accepted. Who really would win in a court if one party treats spam as a content related issue and the other party says this is illegal because we have 1.1bis. In a previous version there ass a footnote as the proposed dealbraker saying that "spam is not content". Wow. One delegate said this is as when we would say "water is no liquid".
>
> I understand that governments fully disagree if it comes to spam, security, naming and numbering etc. This is documented in numerous political documents (take enhanced cooperation with its hundreds of different interpretations). This disagreement should continue to be disucsseed and fixed from time to time in non-binding political documents on a high level. This is okay. But if you write such unclear concepts into a legally binding treaty than you have to do the next 20 years with all kinds of national and international court proceedings. Nobody wants to pay the bills for the lawyers.
>
> This is also true for the discussion on human rights on this list. Jus cogens is the UN Charter and the seven principles, defined in the 1970 delcaration. Full stop. The "peoples right of self-determination" - one of the seven jus cogens principles - is enshrined in the Charter and can be seen as a collective right of "peoples". The main right which emerges from the right to self-determination is the right of the people to select a social order and the form a state. And than the state enjoys "national sovereignty" (based on the peoples right to self-determination). But the "right" does no go from the people to the state. It remains with the people. There are no "collective rights" for states. Human rights are since John Milton individual rights. And states/governments - as long as they have signed the UN treaties - have the legal obligation under the present internationa law to guarantee those rights to their citizens. If  governments deny those rights to their citizens, indivduals can go to the Hunman Rights Council or - in the CoE case - to the European Court on Human Rights.  And governments can sanction other governments which systenmatically deny human rights because massive violation of human rights are seen under the present international law as a threat to security which opens the door to Chapter 7 of the UN Charter.
>
> Alls this was discusses in detail in the 70s and 80s in the debate about the new international economic order and the CSCE process. International law has not changed. Insofar it was just stupid to introduce into ITRs a new understanding of human rights. This was done by (polically motivated) telco-lawyers who had no knolewdge about the body of international human rights law. You can not stop those governments to do this and you can also not give a human rights lecture at 2.00 o´clock in the morning. Hiowever it was not such a big damage because the final language in the preamble does not really constitute a legal obligation or new law.
>
> So I would recommend if we continue to discuss WCIT outcome to make this clear distinction between a legally binding treaty and politcal declarations and compromise language a la WSIS.
>
> Wolfgang
>
> ________________________________
>
> Von: governance-request at lists.igcaucus.org im Auftrag von Koven Ronald
> Gesendet: Fr 21.12.2012 14:03
> An: governance at lists.igcaucus.org; parminder at itforchange.net; avri at ella.com
> Betreff: Re: [governance] A false consensus is broken
>
>
> And so now Parminder tells us not only how to organize Internet governance but also how to recast the English language.
>
>
> Where's George Orwell now that we need him ?
>
>
> Rony Koven
>
>
>
> -----Original Message-----
> From: parminder <parminder at itforchange.net>
> To: governance <governance at lists.igcaucus.org>; Avri Doria <avri at ella.com>
> Sent: Fri, Dec 21, 2012 1:31 pm
> Subject: Re: [governance] A false consensus is broken
>
>
>
> On Friday 21 December 2012 05:11 PM, Avri Doria wrote:
>> On 21 Dec 2012, at 04:47, parminder wrote:
>>
>>> The United States's decision to walk out of the International
> Telecommunication Union's World Conference on International Telecommunications
> (WCIT) in Dubai along with some of its allies last week could represent a
> turning point in global Internet governance.
>> No one walked out.
>>
>> avri
>
> You are talking like a diplomat, Avri :) . What happened is called a
> walkout although maybe a diplomat wont ever utter that word.
>
> See
> http://www.eweek.com/cloud/wcit-treaty-talks-end-in-dubai-with-walkout-of-us-allies/
>
> among many instance of press coverage that uses this term 'walkout' for
> what happened.
>
> BTW, do you have any other substantive comment on the article?
>
> parminder
>
>
>
>>
>
>
>
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