Enforcement issues, including
status of ITU-T Recommendations
APT-ITU workshop on the International
Telecommunications Regulations
Bangkok, 6-8 February 2012
Richard Hill, ITU
Background
• A treaty must be applied by the Member
States that are party to it
• A treaty could create rights and obligations for
individuals or entities that are under the
jurisdiction of Member States that are parties
to the treaty
2
Implications for parties (1/5)
• Vienna Convention of 1969 on the Law of
Treaties
• “every treaty in force is binding upon the
parties to it and must be performed by them
in good faith”.
• But a treaty may contain non-binding
provisions, or, in some cases, provisions
whose intent is uncertain and mostly left to
the appreciation of the parties.
Implications for parties (2/5)
• “a party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty”
• Unless the treaty specifically provides
otherwise, or a reservation has been duly
made, a party should adapt its national laws
to be consistent with the treaty.
Implications for parties (3/5)
• The principle of good faith performance of
treaty obligations imposes the transposition to
the national legal system of the parties of
those treaties that create rights and
obligations for individuals or entities.
• Unjustified failure to implement a treaty shall
entail the international responsibility of the
concerned States.
Implications for parties (4/5)
• However, since States are sovereign, and not
subject to any higher authority unless they
have specifically agreed to the contrary, there
are no generic mechanisms for enforcing
treaties.
• If a State does not comply with the terms of a
treaty to which it is a party, then, in general,
there is no legal mechanism to oblige it to
comply.
Implications for parties (5/5)
• There are, however, numerous specific
enforcement mechanisms that form part of
specific treaties.
– bilateral investment treaties
– WTO treaties
– European Convention on Human Rights
– International Court of Justice
– ITU Constitution and Convention
Proposals made to CWG-WCIT
• To date, some Member States have suggested
that consideration should be given to adding
some sort of dispute resolution mechanism to
the ITRs, but no specific, concrete proposal
has yet been made.
Status of ITU-T
Recommendations (1/5)
• The immediate predecessor of the ITRs, the
1973 Telephone Regulations, included a
provision regarding Recommendations
– In implementing the principles of the Regulations,
Administrations* should comply with the relevant
CCITT Recommendations, including any
Instructions forming part of those
Recommendations, on any matters not covered by
the Regulations.
Status of ITU-T
Recommendations (2/5)
• That provision was widely considered to
require that telecommunications operators
comply with Recommendations, in particular
those dealing with tariff and accounting
matters.
Status of ITU-T
Recommendations (3/5)
• The current ITRs also contain a provision related
to CCITT Recommendations. That provision,
shown as a revision of the 1973 provision, is:
– In implementing the principles of these Regulations,
Aadministrations* should comply with, to the greatest
extent practicable, the relevant CCITT
Recommendations, including any Instructions forming
part of or derived from these those
Recommendations, on any matters not covered by the
Regulations.
Status of ITU-T
Recommendations (4/5)
• Further, the current ITRs contain an additional
provision related to CCITT Recommendations
that was not found in the 1973 Telephone
Regulations:
– References to CCITT Recommendations and
Instructions in these Regulations are not to be
taken as giving to those Recommendations and
Instructions the same legal status as the
Regulations.
Status of ITU-T
Recommendations (5/5)
• It is clear that that the language adopted in
1988 cannot be understood to imply that
either Member States or operating agencies
have an obligation to comply with CCITT
Recommendations.
Proposals made to CWG-WCIT
• Some of the proposals presented to CWGWCIT take the view that this situation should
be changed, at least with respect to certain
specific areas covered by ITU-T
Recommendations, and that certain
Recommendations should have binding force.
Additional background (1/2)
• International organizations have the external
normative authority
– Most common approach is treaties/conventions.
– Certain international organizations are expressly
empowered to adopt regulatory texts having a
general scope and that do not require ratification
as treaties.
– This derives from a provision of the constitutive
act expressly assigning such competence.
Additional background (2/2)
• WHO can enact health-related regulations
• ICAO is authorized to adopt international
norms and procedures that are binding on its
Member States
• European Union regulations are directly
binding on its Member States
• UN Security Council Resolutions are binding
on all members of the UN, even if they are not
members of the Security Council
ITU situation
• There is a mechanism in the Radio Regulations
used to confer, under specific conditions, binding
force to selected ITU-R Recommendations
• From the international legal point of view, it
would be entirely possible to envisage a
mechanism in the revised ITRs that would confer
treaty value and, as appropriate, binding force to
non-treaty instruments such as
Recommendations
• Of course this says nothing about the advisability
of such a provision, which is a matter to be
decided by the Member States