WCIT: Failure or success?
Impasse or way forward?
Richard Hill
Hill & Associates
ATU-ITU Seminar on the
outcomes of WCIT
Durban, 10 July 2013
Parts of this presentation are based on Richard Hill, “WCIT: failure or success, impasse
or way forward?” International Journal of Law and Information Technology (forthcoming)
DOI:10.1093/ijlit/eat008
Was WCIT-12 a success or a failure?
• Failure:
– Did not achieve desired goal, which was full consensus
– Split amongst the membership, resulting in a vote
– Media coverage was partly inaccurate, influenced by
misinformation campaign
• Success:
– Active participation from all parts of the world
– Broad agreement: 90% of the treaty is not controversial, 10%
was agreed by 62% of Member States present and
accredited to sign
– Key issues were identified and discussed
– It was agreed to continue discussions with a view to reaching
consensus
Why the ITRs are important
The International Telecommunication Regulations (ITRs):
 Establish general principles on the provision and operation of
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international telecommunication services offered to the public
Facilitate global interconnection and interoperability
Underpin harmonious development and efficient operation of
technical facilities
Promote efficiency, usefulness, and availability of international
telecommunication services
Treaty-level provisions are required for international networks
and services
The ITRs underpin how we communicate with
each other by phone or computer, with voice,
video or data, and across the globe.
The 1988 ITRs were not limited to telephony, on the
contrary, they enabled the growth of the Internet.
What is “telecommunications”?
• Defined in the ITU Constitution:
– “Any transmission, emission or reception of signs,
signals, writing, images and sounds or intelligence
of any nature by wire, radio, optical or other
electromagnetic systems.”
• Many interpret this to include at least parts of
“the Internet”.
– But this is not the case in all countries
ITU’s mandate
• Explicitly includes Internet matters
– greater role in Internet governance
– cybercrime
– spam
– respect for privacy and the protection of personal
information and data
– etc.
This was agreed by consensus by all Member States
The goal is universal connectivity
But consider Average Broadband Speeds (Mbps)
2011
2012
2013 2014 2015 2016
Global
9
12
16
21
27
34
Asia Pacific
8
11
15
21
28
36
Latin America
4
5
7
8
10
12
North America
11
14
18
23
29
37
West Europe
11
14
18
24
32
42
C and E Europe
9
12
15
19
24
29
Mid East & Africa
3
4
5
6
7
8
Source: CISCO VNI, 2012
Key WCIT12 overall outcomes
• New ITRs (as old ITRs) not restricted to telephony
• New ITRs (as old ITRs) cover “authorized operating
agencies”, not just ROAs, but only with respect to
international services offered to the public
• No treaty text explicitly mentioning Internet
– But implicitly included in some provisions, as is
the case for the old ITRs
• Explicit recognition of existing human rights
provisions
• New pro-consumer provisions
• New pro-competitive provisions
• New pro-investment provisions
• Recognition of divergent views on Internet matters
and need to discuss further
What is in the 2012 ITRs (1/2)
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Preamble (human rights, right to access)
Article 1: Purpose and scope (not content-related, AOA)
Article 2: Definitions
Article 3: Right to communicate at good technical quality;
countries to coordinate their infrastructure (misuse, CLI, traffic
exchange points)
Article 4: International telecom services to be made available
to the public (roaming transparency, quality and competition)
Article 5: Priority to be given to emergency communications
(emergency number notification)
Article 6 [5A]: Network security
Article 7 [5B]: Combating spam
Note: these are not the actual titles of the articles. The number in [ ] is the old art. no.
Items in red are new compared to the 1988 version
What is in the 2012 ITRs (2/2)
• Article 8 [6]: Charging and accounting (commercial
agreements, encourage investments, competitive wholesale
pricing)
• Article 9 [7]: Suspension of services
• Article 10 [8]: Dissemination of information (Member States to
communicate information to ITU)
• Article 11 [8A]: Energy efficiency, E-waste
• Article 12 [8B]: Accessibility
• Article 13 [9]: Special arrangements
• Article 14 [10]: Entry into force; reservations
• Appendix 1: Accounting rate system
• Appendix 2: Maritime telecommunications
• Some provisions of the old Appendix 3 on service
telecommunications were moved to Article 6
Note: these are not the actual titles of the articles.
Items in red are new compared to the 1988 version
WCIT-12 Resolutions
1. Special measures for landlocked developing
countries
2. Globally harmonized national emergency number
3. Fostering an enabling environment for the greater
growth of the Internet (controversial)
4. Periodic review of the ITRs
5. International telecommunication service traffic
termination and exchange
Note: these are not the actual titles of the Resolutions.
All are new. All old Resolutions, Recommendations, and the
Opinion were suppressed.
Legal status
• All Resolutions entered into force on 15 December
2012
• New treaty enters into force in January 2015
– Until then the 1988 treaty is valid
• After January 2015
– New treaty binds countries that have agreed to be bound
(they are parties to the treaty)
– Old treaty binds countries that have not agreed to be
bound by the 2012 treaty (non-parties)
– Relations between a party to the 2012 treaty and a nonparty are governed by 1988 treaty
– Unless a 2012 party denounces the 1988 treaty
Obligations of non-parties
• The provisions of the new treaty do not apply to
countries that do agree to be bound by it. These
provisions include:
– transparency of mobile roaming prices
– accessibility
– energy efficiency and reduction of e-waste
– cooperation to combat unsolicited bulk electronic
communications
– Etc.
• Thus, the citizens of non-parties may not benefit
from those provisions
Consequences of split regime
• Hard to predict
– Non-controversial provisions might be implemented
even by non-signatories
– USA did not sign the predecessors of the ITRs until
1973
– But the situation today is not the same as prior to
1973
• Worst case: non-harmonized practices lead to
fragmentation
– Danger if there is no uniform international
framework to facilitate global interconnection and
interoperability?
Ways forward to avoid a split
• Most countries agree to be bound by the ITRs
• Most countries do not agree to be bound by the ITRs
• Most countries implement the ITRs in a noncontroversial manner
– Recognize that Preamble does not prevent suspension of
services or otherwise modify existing rights and obligations
– Recognize that there is no extension of the covered
entities or of the scope
– Recognize that the security and spam provisions do not
relate to content
– Recognize that Resolution 3 does not change the mandate
of the ITU
WCIT-12 key numbers
• 1,275 proposals from Member States
• over 1,400 delegates from 151 Member States
• 150 hours of official conference meetings
onsite
• Final acts signed by 89 countries out of the
144 present and having authority to sign
WCIT-12: ITU as a global convener
 151 countries in Dubai
 strong participation in negotiations
 richer, more representative and more powerful treaty
 Discussions about Internet governance revealed the full
complexity of this issue
 Strong divergence on some topics
 During the preparatory process
 And in Dubai.
 Government and market forces were represented at WCIT-12
 This resulted in an extremely valuable exchange of views and
ideas
 Compromise outcome:
 Signed by 89 governments out of 144 accredited to sign
 More are expected to join
WCIT-12 procedure
 The ITU Secretariat’s role is to bring the world together and
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facilitate their negotiations with an efficient support team to help
delegates reach agreement.
Do not conflate the Secretariat with the ITU: the ITU is its
membership
ITU hosted many preparatory meetings, and translated over 450
contributions in 6 UN languages to facilitate negotiations
WCIT-12 was the most open and transparent treaty making
conference ever held
 Decision-making sessions were publicly webcast
 There were social media and interactive briefings
 Stakeholders from government, private sector and
civil society were all represented in the negotiations
Ultimately, it is ITU membership who negotiate, and the treaty is
their agreement
Role of Member States (1/2)
• Tunis Agenda (WSIS) paragraph 55:
– “Policy authority for Internet-related public policy issues is
the sovereign right of States. They have rights and
responsibilities for international Internet-related public
policy issues.”
• Resolution 102:
– the role of governments includes providing a clear,
consistent and predictable legal framework, in order to
promote a favourable environment in which global ICT
networks are interoperable with Internet networks and
widely accessible to all citizens without any discrimination
and to ensure adequate protection of public interests in the
management of Internet resources, including domain names
and addresses
Role of Member States (2/2)
• The ITRs are international law
• National laws are agreed by parliaments
– stakeholders do not participate in the formal
decision-making process in parliament
– nor they are consulted prior to the decisions being
made
• Similarly, in treaty-making conferences,
Member States make decisions, after national
consultations
– stakeholders do not participate in the formal
decision-making process at the treaty conference
WCIT multi-stakeholder involvement
• In the WCIT preparatory process
– open to all ITU members
– ISOC submitted proposals
• WCIT public comment web site
– few comments received
• Through national consultations
– could be open to the public
– documents could be made available to the public
• As members of national delegations
– ITU places no restrictions on who can be included
• If ITU members, can attend WCIT as observers
– could ask to speak, but none did
Some key points (1/2)
 WCIT-12 made one thing extremely clear: every single country represented
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understands the critical importance of ICTs to its future socio-economic
development and future prospects for growth and prosperity. This was not the
case in 1988, and represents a major paradigm shift in the political and
economic agenda
WCIT-12 showed that there is no single world view, but several different
emerging views which need to be taken into account, especially in light of
convergence
In particular, there were sharp disagreements regarding whether the ITRs
should apply to “the Internet”, with significant misinformation being
published
The fact that some countries have not yet signed does not mean that the
treaty is not useful to the countries who have signed
Given the complexity of potentially managing international relations across
several treaties (1988 / 2012 / bilateral), more countries may eventually
recognize the value of accession to the new ITRs.
Some key points (2/2)
 WCIT-12 represents the start of global dialogue: ITU members will
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continue to work to find consensus solutions
The 2012 ITRs have been negotiated with one over-riding goal: to
bring the benefits of communications to the 700 million people who
still don’t have mobile phone network coverage and even more
importantly to the 4.5 billion people who are not yet online
With over 90% of the world’s people now within reach of mobile
phones, the challenge today is to bring Internet access to the twothirds of the world’s population which is still offline
In order to maintain a single, interoperable and open Internet, some
of the challenges that were raised by the developing countries and
other countries have to be addressed, in particular concerns
regarding financial matters and security issues
It is important to work together to bring connectivity to all the
world’s people
WCIT-12 Key Achievements (1/3)
• The treaty contains many major revisions and new areas, as
important improvements on the 1988 treaty. Member States:
 put special emphasis on freedom of access to the
international telecommunication services
 affirmed their commitment to implement the treaty in a
manner that respects and upholds their human rights
obligations
 Agreed that the ITRs do not address the content-related
aspects of telecommunications
 Agreed that, consistent with the Constitution, the ITRs apply
to “authorized operating agencies”: operating agencies,
authorized or recognized by a Member State, to establish,
operate and engage in international telecommunications
services to the public
WCIT-12 Key Achievements (2/3)
The revised ITRs include provisions for:
improving transparency in mobile roaming charges
promoting investments and competition
improving energy efficiency and cutting e-waste
ensuring the security and robustness of international
telecommunication networks
combating unsolicited bulk electronic communications
(spam)
preventing misuse of numbering resources
Calling Line Identification
bringing benefit of ICTs to 650 million people with
disability
improving access to emergency services
WCIT-12 Key Achievements (3/3)
5 new Resolutions
improving broadband connectivity to
landlocked developing countries and small
island states
Globally harmonized emergency number
Foster greater internet growth
Periodic review of the ITRs
International traffic termination and exchange
WCIT-12: proposals left out (1/2)
• Cost-oriented charges for mobile roaming and
wholesale prices
• General price transparency
• Fair compensation for traffic carried/terminated
• Restrictions on taxation
• Restrictions on network neutrality
• Routing transparency
But it was agreed to study further most of these matters
WCIT-12: proposals left out (2/2)
• Extension of scope to Operating Agencies (OAs)
• Restriction of scope to Recognized Operating Agencies
(ROAs)
• Extension to ICT
• Provisions on data protection, privacy, cybersecurity,
cybercrime
– Even though these are in the mandate of the ITU pursuant to
Council Resolution 1305
• Making ITU Recommendations mandatory
• Alternative dispute resolution on international
connectivity matters including Internet
• Provisions regarding Internet
• Purely liberalized approach to broadband deployment
Reasons given for not signing
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Third paragraph of the preamble
ITRs apply to “authorized operating agencies”
Expansion of scope of ITRs
Article 5A
– Security and robustness of networks
• Article 5B
– Unsolicited bulk electronic communications
• Resolution 3
– To foster an enabling environment for the greater
growth of the Internet
Paragraph 3 of the Preamble
These Regulations recognize the right of access of
Member States to international telecommunication
services.
• Is subject to Article 35 of the Constitution:
– Any Member State can cut off communications
with any other Member State, for any reason
whatsoever, provided it informs the SecretaryGeneral
• So no new rights or obligations are created
• It recognizes the rights of citizens, not just of
governments
• Not really “unprecedented”
Purpose and scope
• Unchanged with respect to 1988
– Application to AOA was decided in 1998, by a change
in the ITU Constitution (no. 38, article 6)
– ITRs only apply to services offered to the public
• not to purely private networks (the term “public” is
specifically present in the ITRs)
– OAs (and AOAs) are entities that operate an
installation intended for an international
telecommunication service
• so local ISPs would presumably not be included
• Nobody ever complained about the entities
covered since 1998
• There is no extension of the scope of the ITRs
Article 6 [5A] (1/2)
Security and robustness of networks
• Member States shall individually and
collectively endeavour to ensure the security
and robustness of international
telecommunication networks in order to
achieve effective use thereof and avoidance of
technical harm thereto, as well as the
harmonious development of international
telecommunication services offered to the
public.
Article 6 [5A] (2/2)
• Is subject to:
– human rights obligations
– article 1: “These Regulations do not address the
content-related aspects of telecommunications.”
• Cannot be seen as addressing content
– It is about measures that do not related to content
(see Recommendations ITU-T E.408 and X.805. )
• Should lead to cooperation to implement best
practices that are already prevalent
– should make it less likely that some country would
(perhaps unwittingly) adopt inappropriate security
legislation
Article 7 [5B] (1/2)
• Member States should endeavour to take
necessary measures to prevent the
propagation of unsolicited bulk electronic
communications and minimize its impact on
international telecommunication services.
• Member States are encouraged to cooperate
in that sense.
Article 7 [5B] (2/2)
• Is subject to:
– human rights obligations
– article 1: “These Regulations do not address the
content-related aspects of telecommunications.”
• Cannot be seen as addressing content
– It is about measures that do not related to content
(e.g. address filtering; see Recommendations ITUT X.1231 and X.1240 )
• Should lead to cooperation to implement best
practices that are already prevalent
– should make it less likely that some country would
(perhaps unwittingly) adopt inappropriate spam
legislation
Resolution 3 (1/2)
• resolves to invite Member States
– to elaborate on their respective positions on international
Internet-related technical,development and public-policy issues
within the mandate of ITU at various ITU forums including, inter
alia, the World Telecommunication/ICT Policy Forum, the
Broadband Commission for Digital Development and ITU study
groups;
– to engage with all their stakeholders in this regard,
• instructs the Secretary-General
– to continue to take the necessary steps for ITU to play an active
and constructive role in the development of broadband and the
multistakeholder model of the Internet as expressed in § 35 of
the Tunis Agenda;
– to support the participation of Member States and all other
stakeholders, as applicable, in the activities of ITU in this
regard.
Resolution 3 (2/2)
• No expansion of ITU’s role and scope
• Promotes multi-stakeholder consultations
• Cannot modify or override WSIS outcomes
Specific provisions (1/7)
• 3.5 Member States shall endeavour to ensure
that international telecommunication
numbering resources specified in ITU-T
Recommendations are used only by the
assignees and only for the purposes for which
they were assigned; and that unassigned
resources are not used.
Specific provisions (2/7)
• 3.6 Member States shall endeavour to ensure
that international calling line identification
(CLI) information is provided taking into
account the relevant ITU-T Recommendations.
Specific Provisions (3/7)
• 3.7 Member States should create an enabling
environment for the implementation of
regional telecommunication traffic exchange
points, with a view to improving quality,
increasing the connectivity and resilience of
networks, fostering competition and reducing
the costs of international telecommunication
interconnections.
Specific Provisions (4/7)
• 4.4 Member States shall foster measures to
ensure that authorized operating agencies
provide free-of-charge, transparent, up-todate and accurate information to end users on
international telecommunication services,
including international roaming prices and the
associated relevant conditions, in a timely
manner.
Specific Provisions (5/7)
• 4.5 Member States shall foster measures to
ensure that telecommunication services in
international roaming of satisfactory quality
are provided to visiting users.
• 4.6 Member States should foster cooperation
among authorized operating agencies in order
to avoid and mitigate inadvertent roaming
charges in border zones.
Specific Provisions (6/7)
• 4.7 Member States shall endeavour to
promote competition in the provision of
international roaming services and are
encouraged to develop policies that foster
competitive roaming prices for the benefit of
end users.
Specific provisions (7/7)
• 5.4 Member States should encourage
authorized operating agencies to inform all
users, including roaming users, in good time
and free of charge, of the number to be used
for calls to the emergency services.
Article 8 [6] (1/2)
• Significantly restructured. Now starts
– 8.1 Subject to applicable national law, the terms
and conditions for international
telecommunication service arrangements may be
established through commercial agreements or
through accounting-rate principles established
pursuant to national regulation.
– 8.1.1 Member States shall endeavour to
encourage investments in international
telecommunication networks and promote
competitive wholesale pricing for traffic carried on
such telecommunication networks.
Article 8 [6] (2/2)
• Then continues with provisions similar to
those of the old article 6, with a chapeau
stating:
– The following provisions may apply where the
terms and conditions of international
telecommunication service arrangements are
established through accounting-rate principles,
established pursuant to national regulation. These
provisions do not apply to arrangements
established through commercial agreements.
• Appendix 1 was simplified and the deadlines
were reduced to 50 days, consistent with
Recommendation ITU-T D.195.
New Articles
9 [8A]: Energy efficiency/e-waste
10 [8B]: Accessibility
• 9 Member States are encouraged to adopt
energy-efficiency and e-waste best practices
taking into account the relevant ITU-T
Recommendations.
• 10 Member States should promote access for
persons with disabilities to international
telecommunication services, taking into
account the relevant ITU-T Recommendations.
New Resolution on International telecommunication
service traffic termination and exchange (1/6)
• Considering
– that the transition from dedicated phone and data
networks to converged IP-based networks raises
regulatory, technical and economic issues which
need to be taken into consideration;
– that many Member States have expressed a need
for the initiation and implementation of
commercial agreements between authorized
operating agencies and service providers of
international services, with the objective of
empowering all the participants in the new value
chain,
New Resolution on International telecommunication
service traffic termination and exchange (2/6)
• Noting
– that some Member States are observing a
deterioration in the quality of international
services and voice traffic;
– that Study Group 3 of the ITU Telecommunication
Standardization Sector (ITU-T) is mandated to
study the development of Recommendations,
resolutions and guidelines related to these issues;
New Resolution on International telecommunication
service traffic termination and exchange (3/6)
– that there is a need for broader understanding of
alternative dispute resolution mechanisms arising
out of commercial arrangements;
– that some Member States have concerns for the
prevention and mitigation of fraud in international
telecommunications,
New Resolution on International telecommunication
service traffic termination and exchange (4/6)
• Resolves to invite concerned Members States
to collaborate so that:
– each party in a negotiation or agreement related
to or arising out of international connectivity
matters can seek the support of relevant
authorities of the other party’s State in alternative
dispute resolution;
– their regulatory frameworks promote the
establishment of commercial agreements
between authorized operating agencies and the
providers of international services in alignment
with principles of fair competition
and innovation,
New Resolution on International telecommunication
service traffic termination and exchange (5/6)
• Instructs the Director of TSB
– to take necessary action in order that ITU-T Study
Group 3 study recent developments and practices
with regard to the termination and exchange of
international telecommunication traffic under
commercial agreements, so as to develop a
Recommendation, if appropriate, and guidelines
for concerned Member States, for the use of
providers of international telecommunication
services in regard to issues they consider relevant,
such as:
New Resolution on International telecommunication
service traffic termination and exchange (6/6)
• conditions for the establishment of invoices
• conditions for sending invoices
• conditions for the payment of invoices
• conditions for dispute resolution
• conditions on fraud prevention and
mitigation
• conditions for charges for international
telecommunication service traffic termination
and exchange
For more information
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http://www.itu.int/en/wcit-12/Pages/default.aspx
http://www.itu.int/osg/wcit-12/highlights/dec13-14.html
http://www.scoop.it/t/wcit-12
http://www.culleninternational.com/ressource/4900/0/wcit-12-a-postmortem-public-version.pdf
• http://ijlit.oxfordjournals.org/content/early/2013/06/10/
ijlit.eat008.abstract?keytype=ref&ijkey=otqkCXVOAelJUP
y
• http://www.ip-watch.org/2013/06/11/criticism-of-the2012-itrs-not-valid-says-former-senior-itu-official/