When India first circulated an unofficial draft of its proposals for the treaty in September 2012, it looked like India too was in favour of an expansion. Civil society and industry in India were alarmed that the government seemed to plan to support the inclusion in the treaty of ICTs, the Internet’s naming and numbering system and security issues at various levels of the network — each of which could have a dramatic impact on the way Internet functions.
But a subsequent close engagement on their part with the government seems to have borne fruit. The positions that were put forward in Dubai by the Government of India in the end were far more nuanced, effectively taking into account many of the concerns that civil society and industry had put on the table. Sticking points definitely remain. For example, though the government agreed in most cases to restrict the application of provisions regarding security to the physical layer of the Internet, it nevertheless continued to espouse inclusion of provisions regarding spam in the treaty — a move that effectively expands the scope of the treaty to the content layer. Yet many positives can be counted as well. For example, the government also clarified that it sought the inclusion of ICTs in the International Telecommunication Regulations or ITRs [which were being renegotiated in Dubai] only to the extent that they relate to the physical layer of the network; other aspects of ICTs, including content, would remain out of the treaty’s purview. Similarly, reflecting another important recommendation, India expressed its support for inclusion in the treaty of language which calls on States to uphold their human rights obligations while implementing ITRs. Both positions are important gains from the perspective of users’ rights and are reflected in the final version of ITRs.
Nuance also marks India’s position on the treaty as a whole. While the country put on record its satisfaction with the text of the treaty and four of the resolutions passed in Dubai, it also expressed its reservations concerning a fifth resolution, which addresses Internet governance in particular. It noted it would hold further consultations with stakeholders within the country to understand the potential impact of this resolution on the Internet before committing to sign the treaty.
The Internet Resolution is indeed problematic, particularly for two reasons. First, it emphasises the role of governments without giving equal recognition to the role of other stakeholders, as has become the tradition in Internet policy making. This is particularly disconcerting as ITU is in any case one of the UN bodies most difficult to access for civil society. Secondly, the resolution was pushed through in a backdoor manner, with the chairperson calling for a show of hands to supposedly “feel the temperature of the room” and then effectively treating that show of hands as a vote. These two elements makes it difficult not to be deeply suspicious of the intentions behind the resolution, even if it is non-binding.
In some ways, the thrust of the resolution in itself should not come as a surprise. For years now, developing countries have been asking the global community to make good on promises of enhanced cooperation on Internet policy — promises that were first documented in the Tunis Agenda of 2005. India has often played a leading role in such developments. Though its proposal for a UN Committee on Internet Related Proposals might have been misguided, India has made some other, outstanding recommendations to promote enhanced cooperation.
It is precisely because of its leadership role on these issues that India’s reluctance to sign the ITRs sends such an important signal to the world community. If India does sign the treaty, the immediate impact on the Internet within the country will likely be small since, to the extent that they affect the Internet, most provisions now integrated in ITRs are already part of local laws and regulations. But as an irrevocably transglobal network, the Indian Internet cannot be seen in isolation, and the Indian government has clearly understood this fact.
By not accepting unconditionally the Internet Resolution — which is unbalanced even if perhaps not an immediate threat — India has made it clear that it is ready to push back against any unwise or inconsiderate proposal for global Internet regulation: the terms of the proposal matter. Moreover, by expressly stating the need to seek the inputs of all stakeholders concerned before making a decision, India has also advocated for a clear commitment to multistakeholderism at all levels of decision-making, exactly as the Tunis Agenda prescribes. It is in a widespread and continuous commitment to these very stances by governments that hope for the survival of the free and open Internet, in India as elsewhere, in fact lies. At the WCIT meeting, India has set a heartening example.