Nº 10 2012 > World Conference on International Telecommunications | Special report
Innovations in the updated treaty
Tough topics that provoked considerable debate at WCIT‑12 included network security, unsolicited bulk content such as spam e-mail, the definition of entities providing services under the terms of the treaty, the principle of non-discriminatory access of countries to each other’s networks, and whether or not to mention freedom of expression in the treaty.
Conference affirms right to freedom of information online
Delegates overwhelmingly recognized the importance of Article 19 of the Universal Declaration of Human Rights affirming the right of all people to freedom of opinion and expression, including the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
There had been a proposal to include an explicit reference in Article 1 of the Regulations that would call on Member States to “acknowledge that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice”.
The proposal sparked some vigorous debate, with delegates unanimously speaking out in favour of online freedom.
However, the conference asserted that there was no need for additional text in the highly technical treaty, in view of the fact that the right to freedom of expression is already expressly protected by texts of treaties which take legal precedence over the ITRs, including Article 19 of the Universal Declaration of Human Rights and Article 33 of the ITU Constitution. Instead, it was agreed to issue a press release as a way of sending a strong signal about the need to protect the right to freedom of expression. The press release, published on 4 December, was entitled: “World Conference on International Telecommunications affirms right to freedom of information online: Delegates emphasize pre-eminence of UN treaties on human rights”.
Reference to right to access
In view of the importance of the matter, a group of countries further presented a document requesting to add the following clause to the Preamble of the ITRs: “While implementing these Regulations Member States shall take into account their international obligations in relation to universal human rights.”
There was opposition to the request, on the grounds that the matter had already been settled at an earlier plenary, where it had been unanimously agreed that no language needed to be added to the ITRs regarding respect for human rights, because the respect of those rights was imposed by instruments of a higher level than the ITRs, in particular the ITU Constitution and the United Nations Declaration of Human Rights, as stated in the press release.
Some countries said they needed to consult with their capitals before they could take a position on the matter. Others considered that the proposed clause needed refining. The Chairman of the conference ruled for refinement, with the following result: “Member States affirm their commitment to implement these Regulations in a manner that respects and upholds their human rights obligations.”
While a number of countries supported inclusion of this refined clause in the Preamble, another group of countries found the reference to human rights incomplete without an explicit mention of the right of access of Member States to international telecommunication services. These countries requested that the phrase “and recognize the right of access of all Member States to international telecommunication services” should be added after the word “obligations”. A long debate ensued.
Opposing this new request, one delegation said: “We have made a number of interventions and we have worked closely with colleagues to try to find a way to express the importance of human rights obligations, and we have made considerable progress, as is reflected in the Preamble text before us.”
Another delegation stressed that the proposed text did not correspond to well-established human rights language: “We believe that this conference should not draft new human rights language, but reaffirm our existing commitments. Human rights are for individuals, not for States. We regret that some Member States are trying to politicize the very important issue of human rights therefore we cannot agree to the changes proposed.”
Echoing a similar sentiment, another delegate said: “I need to reiterate that human rights are for individuals. The text respecting the rights of access of all Member States to telecommunication services appears to create new human rights language. I must say to the conference that this is not the forum to be creating new human rights language. And so while we recognize that all Member States shall respect their human rights obligations, with regret I cannot support this addition.”
In the end, a decision was taken by vote — with 77 for, 33 against and 8 abstentions — to include in the Preamble an explicit reference to the right of access of Member States to international telecommunication services.
The full text of the Preamble says that: “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.”
International mobile roaming
When the ITRs were agreed in 1988, mobile phones were a rarity and mobile roaming was not a concern for ITU members. But in a world with over 6.3 billion mobile cellular subscriptions, many ITU members today believe that mobile roaming charges are too high in relation to costs and that competition is not driving down prices fast enough.
Generally, delegations agreed that it was important to adopt provisions to ensure transparency of end-user prices for international mobile services, and that users receive full information promptly whenever they cross a border. However, delegations were divided regarding a second set of proposals to ensure that prices are based on costs for the service provider, or on prices charged in the user’s home country, or on those charged to customers in the visited country.
After a lively debate, new provisions were adopted, which are intended to ensure transparency of end-user prices for international mobile services, and to allow users to receive full information promptly whenever they cross a border, as detailed below:
- “Member States shall foster measures to ensure that authorized operating agencies provide free-of-charge, transparent, up-to-date and accurate information to end users on international telecommunication services including international roaming prices and the associated relevant conditions in a timely manner.
- Member States shall foster measures to ensure that telecommunication services in international roaming of satisfactory quality are provided to visiting users.
- Member States should foster cooperation among authorized operating agencies in order to avoid and mitigate against inadvertent roaming charges in border zones.
- 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.”
These provisions were initially considered under Article 6 on “Charging and accounting” before being moved to Article 4 on “International telecommunication services”.
Charging and accounting
Discussions on Article 6 ranged from leaving the 1988 provisions unchanged, to adapting them to give greater weight to ITU–T Recommendations, to replacing them with general principles related to those agreed at the World Trade Organization, to deleting the existing provisions on the grounds that they are no longer appropriate in a world of liberalized telecommunications.
Under the traditional system when the original ITRs were negotiated in 1988, telephone traffic was exchanged between carriers in different countries, and a phone operator that sent more traffic than it received had to make “settlement payments” to the receiving company. These payments were calculated bilaterally with a formula called an “accounting rate,” which is established according to principles set out in the ITRs, complemented by ITU–T Recommendations.
Advances in technology have led to more and more traffic bypassing the traditional system, for example, by taking the cheapest route for an international call — not necessarily the most direct one. How to reform the accounting system to reflect these changes has been studied at ITU since 1991, involving industry players alongside representatives of more than 80 countries.
Accounting rates are still used in some parts of the world, but they are no longer widely used, and most traffic today is billed on the basis of bilateral commercial agreements.
So in revising the treaty, some delegations argued for the deletion of text referring to accounting rates on the basis that the 1988 provisions reflected a communication market where most traffic was exchanged between monopoly carriers, whereas charging and accounting arrangements between operators have now become a commercial matter in many countries. In their view, the rates set out in the ITRs were adopted when the market comprised mostly State-owned telecommunication providers exchanging circuit-switched minutes. “We consider it inappropriate to mandate matters subject to commercial arrangements in a binding multilateral treaty,” they argued.
Speaking as Vice-Chairman of Committee 5, Australia’s Bob Horton described the current situation as a dual highway. “A highway where in some cases we have heard that there are many countries that need to negotiate with each other using the charging and accounting regime, which has been in place for 24 years,” said Mr Horton. “And there is still a definite need for that, and also a legitimate requirement for it within the Constitution and the Convention. On the other hand, we have seen an enormous growth of commercial arrangements and that is the second lane of the highway. If we recognize that it is a dual highway then we can cross over at certain points when we’re ready.”
A decision was then taken to set up an ad hoc group, chaired by Australia, to examine the positions that had been presented. The ad hoc group was open to all those who felt strongly about the issue, to make their views known. Some countries, announcing their participation in the group, stressed that “rather than prescriptive regulations, we need a regulatory environment that promotes competition, development, entrepreneurship and innovation, since this would benefit consumers worldwide.” Others reiterated that Article 6 dealt with the important subject of accounting and settlement principles, and that for settlement of accounts it is still basically being followed. “So though it is not used much nowadays, we would suggest keeping it in some part of the ITRs.”
At the end of one the most contentious debates of the conference, delegations approved new provisions that cater for the different situations around the world, with a general provision on the use of both arrangements, and specific provisions on accounting rates:
- “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” (paragraph 6.1 of Article 6).
- “For each applicable service in a given relation, authorized operating agencies shall, by mutual agreement, establish and revise accounting rates to be applied between them, in accordance with the provisions of Appendix 1 and taking into account the relevant ITU–T Recommendations” (paragraph 6.2.1 of Article 6).
- “Unless otherwise agreed, parties engaged in the provision of international telecommunication services shall follow the relevant provisions as set out in Appendices 1 and 2” (paragraph 6.2.2 of Article 6).
- “In the absence of special arrangements concluded between authorized operating agencies, the monetary unit to be used in the composition of accounting rates for international telecommunication services and in the establishment of international accounts shall be:
- either the monetary unit of the International Monetary Fund (IMF), currently the Special Drawing Right (SDR), as defined by that organization;
- or freely convertible currencies or other monetary unit agreed between the authorized operating agencies” (paragraph 6.2.3 of Article 6).
- “The charges levied on customers for a particular communication should in principle be the same in a given relation, regardless of the international route used for that communication. In establishing these charges, Member States should try to avoid dissymmetry between the charges applicable in each direction of the same relation” (paragraph 6.2.4 of Article 6).
Recognized operating agencies and operating agencies
To whom the Regulations being renegotiated would apply was a fundamental question for WCIT‑12 and there was a major debate on whether the ITRs should apply to recognized operating agencies or to operating agencies.
Operating agencies are defined in provision No. 1007 of the ITU Constitution as: “Any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service.”
Recognized operating agencies are defined in provision No. 1008 of the ITU Constitution as: “Any operating agency, as defined above, which operates a public correspondence or broadcasting service and upon which the obligations provided for in Article 6 of this Constitution are imposed by the Member State in whose territory the head office of the agency is situated, or by the Member State which has authorized this operating agency to establish and operate a telecommunication service on its territory.”
On one side were Member States who preferred to restrict the scope of the ITRs to recognized operating agencies — the major telecommunication operators, which provide a public service. These countries argued that recognized operating agencies are the traditional target for the Regulations and that it would not be appropriate to expand the scope of the ITRs — and in particular they should not apply to private networks.
On the other side were Member States who advocated application of the ITRs to operating agencies, which would bring in public service providers without licensing obligations and would thus extend the scope of the Regulations.
These countries argued that the ITRs had to be adapted to the current regulatory reality.
The question of operating agencies versus recognized operating agencies was highlighted at the start of the conference, with some countries proposing that the definitions for both terms, as well as the term “telecommunications”, be agreed to before any substantive work at the conference began. The response to this request was the setting up of an ad hoc group of the Plenary, under the leadership of the conference Chairman.
In an attempt to find a compromise, the Chairman had proposed in his ad hoc group that perhaps the way forward could be to use the concept of authorized operating agencies as referred to in provision No. 38 of the ITU Constitution.
This, he explained, would have the advantage of not creating a discrepancy between the Constitution and the ITRs.
Provision No. 38 in the ITU Constitution states: “The Member States are also bound to take the necessary steps to impose the observance of the provisions of this Constitution, the Convention and the Administrative Regulations upon operating agencies authorized by them to establish and operate telecommunications and which engage in international services or which operate stations capable of causing harmful interference to the radio services of other countries.” But this clause, it was argued, does not give any clear indication on how an exclusion process would work nor to whom it would apply.
In the end, the conference adopted the following provisions:
- These Regulations also contain provisions applicable to those operating agencies, authorized or recognized by a Member State, to establish, operate and engage in international telecommunication services to the public, hereinafter referred as “authorized operating agencies” (paragraph 1.1.a bis of Article 1).
- Within the framework of these Regulations, the provision and operation of international telecommunication services in each relation is pursuant to mutual agreement between authorized operating agencies (paragraph 1.5 of Article 1).
- In implementing the principles of these Regulations, authorized operating agencies should comply with, to the greatest extent practicable, the relevant ITU–T Recommendations (paragraph 1.6 of Article 1).
- These Regulations recognize the right of any Member State, subject to national law and should it decide to do so, to require that authorized operating agencies which operate in its territory and provide an international telecommunication service to the public be authorized by that Member State (paragraph 1.7.a of Article 1).
Keeping content-related aspects of telecommunications out of the treaty
Content, as such, has no place in the Regulations. Delegations were in agreement about this, with a number of them wanting to see a clear and explicit statement that would expressly exclude content from the scope of the Regulations. Several attempts were made to find suitable wording.
Under Article 1 on the “Purpose and scope of the Regulations”, the Chairman of the conference proposed including new text that would make it clear that the Regulations do not address — nor can they be interpreted as addressing — content. He suggested adding the phrase “to the exclusion of their content” as shown in bold in the following sentence: “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, to the exclusion of their content.”
A group of countries expressed the opinion that this addition was not clear for two reasons. First, it was not clear whether the exclusion was intended to relate to services or transport. Second, the word “content” has a broad meaning, which also covers technical content because a telecommunication system that does not transport information does not transmit anything. The group of countries therefore proposed, instead, a clear and unambiguous sentence stating that “These Regulations do not address the content-related aspects of telecommunications.”
There were no objections to the proposal, which was then approved as shown in bold in the following provision: “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.”
Security and robustness of networks
There was a divergence of views on whether security, robustness or resilience were appropriate topics for the treaty.
Despite general consensus that improving security in the sphere of ICT is an important matter today, some countries did not want the word “security” included in the treaty, believing that the ITRs are not an appropriate place for addressing security matters, so they would not support a vague provision that would have significant implications but make few practical improvements to security.
New Article 5A on security and robustness of networks was approved after a lengthy discussion. It says that: “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.”
Unsolicited bulk electronic communications
With regard to unsolicited bulk electronic communications, there was a lively debate over whether prohibiting spam would raise issues over what constituted prohibited content. Some countries regretted that the word “spam” had been dropped from the initial proposal but others argued that spam is a form of content and that regulating it would inevitably open the door to regulation of other forms of content, including political and cultural speech. Others wanted it stated clearly that the ITRs should not address the content-related aspects of telecommunications as stated above.
In the end, the following provision was adopted: “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.”
A proposal was put forward that requested Member States to cooperate to encourage operating agencies and industry to adopt energy-efficiency international standards and best practices, including disclosure and labelling schemes, so as to reduce energy consumption of communication facilities and installations. A number of developed countries took the floor to indicate that, while the issue was relevant, there were other ITU Resolutions that covered it and they suggested that the proposal should not be incorporated into the ITRs.
A number of other countries from the developing and emerging world expressed the sentiment that it was important to have treaty-level text, not just recommendations or resolutions.
The Chairman of the conference noted all the comments from the floor and referred the matter to the ad hoc group.
After several meetings, the group delivered a consolidated proposal that was then approved by the conference, recognizing that operators should adopt energy-efficient standards and e-waste policies.
Accessibility for persons with disabilities
Proponents of a new article on accessibility had emphasized that it would complement previous ITU Resolutions, providing general principles that could then be applied across the telecommunication sector.
But some countries argued that, although the issue was relevant, it was already covered by other ITU Resolutions, and suggested not incorporating the proposal into the ITRs.
Noting all comments from the floor, the Chairman of the conference decided that the matter would be debated in an ad hoc group. As mandated, after several meetings, the group delivered a consolidated provision on accessibility that led to the adoption of a new Article 8B which reads: “Member States should promote access for persons with disabilities to international telecommunication services, taking into account the relevant ITU–T Recommendations.”
Dr Touré in his closing remarks said: “I am very encouraged by the new article on accessibility. There are at least 650 million people worldwide suffering from some sort of disability, and each and every one of them has just as much right as you and I to access the full benefits of ICT.”