EU Telecom Flash Message 2/2013
January 11, 2013
Inês Nolasco
WCIT-12: a post-mortem
ITU member states failed to reach a consensus agreement at the December World
Conference on International Telecommunications 2012 (WCIT-12) and, as a result, 55 ITU
member states, including the EU member states, the USA and Japan, have decided not to
sign the revised International Telecommunications Regulations (ITRs).
The failure of WCIT-12 is said to have stemmed from a crucial point of principle which
divided member states from the outset – whether the internet should or should not feature in
the revised treaty.
The new issues covered by the amended ITRs (and the accompanying non-binding
resolutions) include mobile roaming, the misuse and fraudulent use of numbering resources,
security of networks, energy efficiency, e-waste, and accessibility.
More controversial proposals presented in the run-up to WCIT-12 – such as allowing for
differentiated traffic management, making ITU Recommendations binding, ensuring
compensation for traffic carried - were left out of the revised treaty.
The ITRs will enter into force in January 2015, binding the 89 signatory states (subject to
any national ratification procedures). The 55 member states which refused to sign the treaty
will, unless there is later accession, be bound by the 1988 version of the ITRs. Relations
between a non-party to the 2012 treaty and a party to the 2012 treaty will be governed by
the 1988 treaty.
Background
WCIT-12 was an ITU-led forum which considered the review of the ITRs, a treaty signed by
178 states which provides the general framework for the provision and operation of
international telecommunications.
WCIT-12 took place in Dubai, United Arab Emirates, between 3 and 14 December, 2012.
A total of almost 1,600 delegates were present in Dubai, including representatives from
governments, regional and international organizations, scientific and industrial
organizations, industry, and civil society.
Only ITU member states had the right to vote. Other participants, including sector members
(industry) and regional organisations and agencies, had an observer status.
NB. For further background information on the preparatory phase, the ITRs, WCIT-12 and
the ITU, see Telecom Flash 76/2012 and Telecom Flash 96/2012.
A. The run-up to WCIT-12: divided views
In the run-up to WCIT-12, member states tabled several proposals spanning a wide range of
issues but were divided on a crucial point of principle.
Countries such as the African States, the Arab States, Cameroon and Cuba were among
those which wanted more thorough regulation and the rebalancing of interests in the internet
and network ecosystem.
The CEPT, USA, Australia and Israel opposed any significant changes to the ITRs and to
the internet value-chain, so that the review would focus on promoting competition and
liberalisation – the triggers for innovation and private sector investment in
telecommunications infrastructure.
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NB. For an overview of the key proposals with an indication of the positions taken by
different ITU member states see annex 1 of Telecom Flash 96/2012.
B. The EU in Dubai
As the scope of the ITRs and certain proposals related to aspects falling within the scope of
the EU regulatory framework (e.g. roaming and the relationship between regulatory
authorities and operators), a coordinated EU position was required.
The EU member states agreed on a common position (based on a Commission proposal)
which fundamentally aimed to ensure that the ITRs were not extended in scope, that what
was agreed at WCIT-12 would not conflict with the EU acquis and that the amendments to
the ITRs would “contribute to the development of the information society for the benefit of all
citizens and telecommunications users world-wide, and users in the Union.”
The EU was particularly concerned about proposals tabled by non-EU countries which
aimed to increase the scope of the treaty and the regulatory burden on operators, including
internet service providers (ISPs), thus potentially impacting on innovation and costs.
Table 1 –Principles guiding the EU member states in Dubai
Issue
Guiding principles
EU acquis
Obligations on operators
Not to support any proposals that could affect EU common rules or
alter their scope, or introduce obligations on operators which went
beyond those already provided for under these rules
High level treaty
ITU recommendations
To support proposals that sought to ensure that the revised treaty
remained high level, strategic and technology neutral, and to oppose
proposals to make ITU recommendations binding
Scope of the ITRs
ITU mandate
To ensure the ITR revision process would not lead to an increase in
the scope of the current ITR treaty or to an increase in the
responsibilities exercised by the ITU under its current mandate
Human rights
Data protection/privacy
To support proposals to respect human rights in relation to
international telecommunications, such as on privacy and personal
data protection in relation to personal data and communications;
Cooperation
Robustness of networks
To support measures to promote greater international cooperation in
ensuring the robustness of networks used for international
telecommunications traffic
Roaming
To support pro-competitive measures and greater transparency on
prices for international telecommunications traffic and roaming, based
on commercial negotiations in a free and fair marketplace.
Having adopted a common position, EU member states coordinated their actions in Dubai.
The EU had a special observer status (“observer in an advisory capacity”).The EU position
was tabled in plenary discussions by the EU member states and by the European
Commission on behalf of Cyprus (the country which held the EU Presidency).
C. The new ITRs and the plenary resolutions
1.
What was retained from the 1988 ITRs
Several provisions included in the 1988 version of the ITRs were, with some modifications,
kept in the new treaty, including those which aimed at:

avoiding double taxation;

ensuring a satisfactory quality of service;

regulating the suspension of international communications services;

allowing for special arrangements on telecommunications matters; and

ensuring special treatment for safety of life and priority communications.
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Charging and accounting principles (including provisions relating to maritime
telecommunications) were also included in the revised treaty, with the supplementary nature
of the defined rules now being clearly established (see article 6.2 which states that the
provisions on charging and accounting are not applicable to arrangements established
through commercial agreements).
2.
New issues addressed in the revised ITRs
The main new points introduced in the ITRs include:
Table 2 – Major new points introduced in the ITRs
Topics covered
Mobile roaming
Content





Relevant
provision(s)
Ensure a satisfactory quality of service
Transparency of prices and conditions (free-of-charge,
up-to-date and accurate information)
Promote competition in the provision of roaming services/
develop policies that foster competitive roaming prices
Cooperation in neighbouring territories to avoid inadvertent
roaming charges
Inform users of number to be used to call emergency
services
Articles 4.4,
4.5, 4.6, 4.7
and 5.4
Interconnection/
Routing

Foster the implementation of regional telecommunication
traffic exchange points in order to improve quality, increase
connectivity and resilience of networks, foster competition
and reduce the costs of interconnection
Article 3.7
New principles on
economic issues

Encourage investments in international telecommunications
networks
Promote competitive wholesale pricing for traffic carried on
the international networks
Avoid asymmetry between charges in each direction of the
same communication
Articles 6.1.1
and
6.2.4


Misuse of
numbering
resources


Prevent the misuse/hijacking of numbering resources
Transmission of calling party identification
Articles 3.5
and 3.6
Combating spam

Cooperation in preventing the propagation of unsolicited bulk
electronic communications and minimising its impact
Article 5B
Security and
robustness of
networks

Ensure the security and robustness of international
telecommunication networks
Article 5A
Emergency
services

Inform users of number to be used to call emergency
services
Article 5.4
Energy efficiency
E-Waste

Adoption of energy-efficient and e-waste best practices,
taking into account the relevant ITU-T Recommendations
Article 8A
Human rights

ITRs to be implemented in a manner that respects and
upholds member states’ human rights obligations
Preamble
Accessibility

Promote access to international telecommunication services
for persons with disabilities
Article 8B
Right of access to
international
telecommunications
services

Member states have the right of access to international
telecommunications services
Preamble
Scope of the ITRs

ITRs applicable to member states and to ‘authorised
operating agencies’ (i.e. operating agencies authorised or
recognised by a member state to establish, operate and
engage in international telecommunications services to the
public)
3.
Article
1.1 abis
New issues addressed in the plenary resolutions
The plenary meeting also adopted five free-standing resolutions which covered new issues.
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The resolutions are not part of the treaty and are effectively in force (even for those member
states which have not signed the treaty). The resolutions create no binding obligations on
member states.
NB. The ITU Constitution and Convention do not specify the legal effect of such
resolutions.
Table 3 – New issues covered by the adopted resolutions
Resolution
Issue
Main provisions
Special measures for
landlocked developing
countries (LLDCs) and
small island developing
states (SIDS) for access
to international optical
fibre networks

n. 2
Globally harmonized
national number for
access to emergency
services

Member states invited to introduce a globally harmonised
national number for access to emergency services (in
addition to existing national emergency numbers and taking
into account relevant ITU-T Recommendations).
n. 3
Fostering an enabling
environment for the
greater growth of the
Internet
(see annex 1)

All governments should have an equal role and
responsibility for the governance, stability, security, and
development of the internet; public policy on the internet
should be developed in consultation with all stakeholders
Member states to elaborate, at various ITU fora, on their
positions on international internet-related technical,
development and public-policy issues within the mandate of
ITU
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 multi-stakeholder
model of the Internet as expressed in § 35 of the Tunis
Agenda; and to support the participation of Member States
and all other stakeholders, as applicable, in the activities of
the ITU
n. 1



Member states to cooperate with LLDCs and SIDS on
projects and programmes to ensure greater access to
international fibre-optic networks
LLDCs and SIDS to give high priority to
telecommunication/ICT activities to promote socioeconomic
development
n. 4
Periodic review of the
ITRs

Invites the 2014 plenipotentiary conference to convene a
WCIT periodically (e.g. every eight years) to revise the
ITRs
n. 5
International
telecommunication
service traffic termination
and exchange

Member states to collaborate to ensure that:

for the purpose of alternative dispute resolution, a
party to a connectivity agreement can seek the
support of the relevant authorities in the counterpart’s
member state;

commercial agreements abide by the principles of fair
competition and innovation
ITU-T Study Group 3 to develop, if appropriate, a
recommendation and guidelines on termination and
exchange of traffic, namely the conditions for the related
charges.

4.
Main proposals to WCIT-12 which were left out
Proposals to WCIT-12 presented in the run-up to the conference which were neither
incorporated in the treaty nor in the plenary resolutions include:
Table 4 – Proposals to WCIT-12 left out of the treaty and of the plenary resolutions
Proposal on
Issues covered
Mobile
roaming

Setting cost-oriented charges
Routing


Transparency with regard to the routes used for managing international traffic
Member states should be able to impose routing regulations/ regulate traffic
termination conditions at national level (for security reasons/ to avoid fraud)
Allowing

Development of IP interconnection, providing both “best effort delivery” and “end to
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Proposal on
Issues covered
end” quality of service delivery
differentiated
traffic
management
New
principles on
economic
issues




Cooperation
on (cyber)
security
issues

Internet
governance



Other





Transparency of retail tariffs
Cost oriented wholesale charges
Foster investment in high-bandwidth infrastructure and ensure adequate return on
investment in network infrastructure
Allow for fair compensation for traffic carried/terminated
(although resolution n.5 instructs ITU-T Study Group 3 to develop, if appropriate, a
recommendation and guidelines on termination and exchange of traffic, namely the
conditions for the related charges.)
Development of technical standards and legal norms, harmonisation of national
legislation, jurisdictions and practices related to the investigation and prosecution of
cybercrime
Data protection and privacy
Member states have equal rights to manage the internet (including the assignment of
internet numbering, naming addressing and identification resources), implement
internet governance policies and regulate operators providing internet access or
carrying internet traffic (principles alluded to in the internet resolution – see annex 1)
Member states to refrain from taking unilateral and/or discriminatory actions that
could impede member states access to internet/internet websites (it could be argued
that this is partly addressed in the third paragraph of the preamble)
Make ITU Recommendations mandatory
Evaluation of significant market power and abuse to take into account international
market shares/international market
Freedom of expression (proposal not directly included but reference made in the
preamble to the need to respect human rights obligations)
Global telecommunications services/numbering resources
Access to alternative dispute resolution and to the national regulatory and
competition authorities of the other party’s state on international connectivity matters,
including the internet (partly covered by resolution n. 5)
D. Why WCIT-12 failed - internet issues a key factor
1.
Opening positions and discussions
Intensive negotiations at WCIT-12 led to near agreement on several topics, including
transparency of mobile roaming prices and conditions, misuse of numbering resources,
accessibility and the reduction of e-waste. However, proposals on internet and internet
governance (particularly the proposal from Russia) remained very contentious.
The start of the conference appeared fairly positive on internet issues, with the new
President and CEO of ICANN, Fadi Chehadé having stressed the complementary roles of
ICANN and the ITU, and the need for cooperation. Dr Hamadoun Touré, the ITU secretary
general, reaffirmed that the ITU had “no wish or desire to play a role in critical Internet
resources such as domain names” and no “mandate to challenge ICANN’s role and
competency”, and that “the work of ICANN and ITU can be, and should be, fully
complementary.”
During the conference, the ITU secretary general and the conference chairman carried out
informal discussions/bilateral meetings on the Russian internet governance proposal, while
proposals on spam and non-discriminatory access to the internet were discussed in ad hoc
groups. Before the negotiations started to break down (see below), the ongoing positions
were as follows:
Table 5 – Ongoing positions before December 12/13
Issue and background
The Russian proposal to WCIT-12 stated that:

Member states have equal rights to manage
the internet (including the assignment of
internet numbering, naming, addressing and
Position reached
Internet issues should be addressed in a
non-binding resolution
This was the outcome of a closed doors
compromise to leave the Russian proposal on
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Issue and background

identification resources ), to implement internet
governance policies, and to regulate operators
providing internet access or carrying internet
traffic
Member states shall ensure cooperation at
national level on reliability and security of the
internet/infrastructure
Proposals on non-discriminatory access to the
internet/internet websites were originally tabled by
Cuba (and by the Asia Pacific Telecommunity) in
the run-up to WCIT-12.
2.
Position reached
internet governance out of the treaty.
Proposal on non-discriminatory access to the
internet/internet sites not to be included in the ITRs
The provision was discussed but with no agreement
reached on including it in the treaty text.
Negotiations break down
In a late night plenary meeting on December 12, it became clear, to the surprise of some,
that there was no consensus on the internet resolution. While the ITU secretary general
stressed that the resolution had been accepted as a compromise to accommodate opposing
views, the meeting chairman wanted to “have the feel of the room” (not a formal vote). A
majority supported the resolution as it then stood and the resolution was adopted. This
development may have started to weaken the consensus approach of the conference.
The breaking point was reached during final discussions on the treaty text held on
December 13.The African States proposed to add text, immediately after the preamble
statement on the protection of human rights, recognising the right of access of member
states to international telecommunications services, i.e. to safeguard non-discriminatory
access to the internet, a proposal which had previously been left out of the draft.
Several member states intervened, with the US, Canada and the European states rejecting
the proposal, stating that human rights issues should not be mixed with member states’
rights. China, Cuba, Iran, the African states and several Middle East countries supported the
proposal, arguing that there is a connection between human rights and member states’
rights, and that some member states are currently deprived of access to international
telecommunications services and to the internet.
The chairman attempted to set the new proposal aside due to a lack of consensus but Iran
raised a point of order and a formal vote was called. On a show of hands, the proposal was
accepted, now standing as the third paragraph of the preamble, “These Regulations
recognize the right of access of Member States to international telecommunication
services.”
From that moment onwards, some member states, including the US, Canada and a number
of European states, indicated that they would not be in a position to sign the revised treaty.
3.
Final outcome
Despite considerations by the ITU secretary general in his final speech that the “conference
was not about Internet control or Internet governance” and that there were “no treaty
provisions on the internet”, 55 ITU member states of the 144 present decided not to sign the
treaty.
The dissenting member states chose not to exercise their right to make reservations to the
provisions that they objected to (so that these provisions would not have been binding on
them).
Terry Kramer, the US ambassador, claimed that "As the ITU has stated, this conference
was never meant to focus on Internet issues. However, today we are in a situation where we
still have text and resolutions that cover issues on spam and also provisions on Internet
governance."
The EU stated that “a proposal made in the final discussions introduced proposals
unacceptable to EU Member States. This included possible extension of the ITRs to cover
internet issues and ruptured the possible fragile compromise. A vote was then called by Iran
which determined a final revised ITR treaty text which EU Member States were not in a
position to sign.”
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While the vote on the proposal on access to international telecommunications services was
the ‘final nail in the coffin’, other internet related provisions (and resolutions) may also have
been involved:

Concerns that certain provisions would reinforce member states’ rights to monitor and
control internet traffic, limit the freedom of expression, and interfere in the way the
internet is currently governed (particularly articles 5A and 5B on the
security/robustness of networks and on unsolicited bulk electronic communications,
and the internet resolution – see annexes 1 and 2); and

Fears that the treaty would be applied too broadly, in particular also to cover ISPs as
well as traditional telecommunications operators.
4.
Reactions
Reactions from the press and external commentators have verged on the extreme:

Internet governance project: “it is the pro-Internet freedom nations that are insisting on
using denial of access to internet services and infrastructure as a form of policy
leverage, and the anti-human rights nations that are claiming a universal right of internet
access.”

Economist: “the world now splits into two camps when it comes to the internet: one is
comprised of more authoritarian countries, which would like to turn back the clock and
regain sovereignty over their own national bits of the internet; the other wants to keep
the internet and its governance as it is (bearing in mind that some of its members’
motives may not always be as pure as they pretend).”
Others more directly involved in WCIT-12 have been more sanguine. Nigel Hickson of
ICANN said, "almost more has been written about WCIT than was contained in the
proposals discussed in Dubai; everyone will have different views but to derive that it was the
initiation of an Internet Cold War is as wrong as it is unhelpful. Yes different countries have
different priorities but this does not mean they are at war with each other!”.
Richard Hill, now an independent consultant but an ITU counsellor at the time of WCIT-12,
said “WCIT-12 was meant to be about finding ways to promote further expansion of the
internet, in particular broadband, notably in developing countries and indeed the agreed text
meets that objective, which is why developing countries have signed it.”
E. The way forward: two ITRs
The new ITRs were signed by 89 ITU member states, with 55 states, including the EU
member states, the USA, India and Japan, refusing to sign the amended treaty.
The new ITRs will enter into force in January 2015, binding those signatory states that notify
the ITU that they have formally ratified the treaty according to their national law. Unless a
signatory state objected at the time of signature, it will be provisionally bound from this date
and its tacit acceptance will be assumed by December 31, 2017. Non-signatory states can
accede to the treaty at any time.
The 55 member states which refused to sign the treaty will, unless there is later accession,
be bound by the 1988 version of the ITRs. Relations between a non-party to the 2012 treaty
and a party to the 2012 treaty will be governed by the 1988 treaty.
NB. More information on the treaty signing process and application can be found here.
Contact the author:
Inês Nolasco
[email protected]
+32 81 25 75 75
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Annex 1 – The internet resolution
“RESOLUTION PLEN/3 (DUBAI, 2012)
To foster an enabling environment for the greater growth of the Internet
The World Conference on International Telecommunications (Dubai, 2012),
recognizing
a)
the outcome documents of the Geneva (2003) and Tunis (2005) phases of the World
Summit on the Information Society (WSIS);
b)
that the Internet is a central element of the infrastructure of the information society,
which has evolved from a research and academic facility into a global facility available
to the public;
c)
the importance of broadband capacity to facilitate the delivery of a broader range of
services and applications, promote investment and provide Internet access at
affordable prices to both existing and new users;
d)
the valuable contribution of all stakeholder groups in their respective roles, as
recognized in § 35 of the Tunis Agenda for the Information Society, to the evolution,
functioning and development of the Internet;
e)
that, as stated in the WSIS outcomes, all governments should have an equal role and
responsibility for international Internet governance and for ensuring the stability,
security and continuity of the existing Internet and its future development and of the
future internet, and that the need for development of public policy by governments in
consultation with all stakeholders is also recognized;
f)
Resolutions 101, 102 and 133 (Rev. Guadalajara, 2010) of the Plenipotentiary
Conference,
resolves to invite Member States
1
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;
2
to engage with all their stakeholders in this regard,
instructs the Secretary-General
1
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;
2
to support the participation of Member States and all other stakeholders, as
applicable, in the activities of ITU in this regard.”
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Annex 2 – Some provisions included in the ITRs
PREAMBLE
1
While the sovereign right of each State to regulate its telecommunications is fully
recognized, the provisions of the present International Telecommunication Regulations
(hereafter referred to as “Regulations”) complement the Constitution and the Convention of
the International Telecommunication Union, with a view to attaining the purposes of the
International Telecommunication Union in promoting the development of telecommunication
services and their most efficient operation while harmonizing the development of facilities for
worldwide telecommunications.
Member States affirm their commitment to implement these Regulations in a manner that
respects and upholds their human rights obligations.
These Regulations recognize the right of access of Member States to international
telecommunication services.
ARTICLE 1
Purpose and scope of the Regulations
1.1 a) These Regulations establish general principles which relate to the provision and
operation of international telecommunication services offered to the public as well as to the
underlying international telecommunication transport means used to provide such services.
These Regulations do not address the content-related aspects of telecommunications.
a bis) These Regulations also contain provisions applicable to those operating agencies,
authorized or recognized by a Member State, to establish, operate and engage in
international telecommunications services to the public, hereinafter referred as "authorized
operating agencies".
(...)
ARTICLE 5A
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 5B
Unsolicited bulk electronic communications
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.
(underlining added)
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