16 January 2013

The WCIT’s outcomes: an Indian civil society perspective

A report by

Abstract

Rishab Bailey participated for the Internet Democracy Project in the ITU’s World Conference on International Telecommunications (WCIT), as part of the Indian delegation. What follows are seven comments and observations by Rishab on what happened at the WCIT and on ITU processes more generally, based on attending the World Conference. For background information on the ITU, the WCIT, the ITRs, and their importance for Internet governance, read Rishab’s earlier FAQ on the WCIT and the ITRs, which complements this report.

Extremist positions by Northern governments are harming the formation of an effective normative framework for global Internet governance as much as such positions from governments in the South

It is clear that the ITU would like to position itself in the vanguard of institutions dealing with the governance of the Internet, but there appears little to no chance of this succeeding while countries such as the USA continue to exercise real control of the telecommunication system and continue to demonstrate a lack of trust in or understanding of multilateral global institutions. The United States and other northern countries that largely control the Internet clearly do not want to take any risk of upsetting the apple cart and will oppose a move towards any global system of Internet regulation.

While one can see the benefits of aligning with such a position, among other things due to the lack of democratic engagement in most developing countries as well as poor human rights records of many of the countries supporting greater governmental involvement in the Internet sphere, the need for governmental intervention in some areas even of Internet governance must be appropriately considered. It is important for organisations, especially from the global South, to ensure that multilateral institutions are not completely bypassed or rendered ineffective (while pushing for greater democratisation even of these institutions) as issues such as non-discriminatory access, increasing infrastructure capabilities, etc., possibly require intergovernmental mechanisms to resolve and adequately enforce.

It was, therefore, disappointing to see the position taken by many countries from the global North, who used the inclusion of issues such as Resolution 3 on the Internet, text on human rights in the preamble, text on non-discriminatory access, etc., as an excuse to walk away from the entire treaty (as opposed to taking reservations with certain specific provisions).

The final ITRs prima facie are fairly weakly worded and unlikely to have a disastrous effect on present mechanisms of Internet governance. It is to be noted that while the ITRs constitute a binding international treaty, large sections of the ITRs are in effect framed as recommendations, and this was highlighted numerous times in the course of the WCIT.

There is clearly a need for some forms of global regulation over the Internet as well as general telecommunications, whether it be in the form of universal service obligation norms, common carrier conditions, etc.

While it is clear that there can be no harmonious system of global content regulation, it is important to ensure that the telecommunication space is not taken over only by commercial regulation, but that public interest issues such equitable access, infrastructure development, etc., are equally addressed.

Governments of third world countries in particular appear to desperately want a multigovernmental forum where issues governing the Internet can be adequately addressed (content related issues and others). Due possibly to the media storm surrounding the WCIT and the effective public message that governments were seeking to control the Internet, etc., the present conference has done little to change methods of Internet governance – the stances of the countries from the global North excluded the scope for drastic revision of governance structures. While certain new provisions have undoubtedly ensured that the Internet is very much on the table for the ITU, these too are worded fairly weakly and are usually couched in non-mandatory language. Further, specific clauses that ensure the protection of human rights, that ensure that content is not regulated, etc., clearly demonstrate that the ITRs are not necessarily evil and must be read within context of the ITUs powers and mandate.

It must also be remembered that the WSIS did envisage a role for the ITU as a leading facilitator in dealing with issues such as cyber security. The ITU clearly believes that it has a role to play in certain issues that touch the Internet (or at the very least acting as the umbrella body under which governance mechanisms can be set up) and the battle for control over governance mechanisms of the Internet is yet to be truly decided. This also helps explain why the ITU attempted to function in a more transparent and open manner, for instance by including and recognising the role and importance of civil society in governance institutions. Further and continuous pressure must be applied to institutions such as the ITU to ensure that they continue to work towards greater transparency and access to the governing processes.

The issue of public regulation over private service providers is at the crux of the battle over global Internet governance, with clear demarcations yet to be made on the points over which there is a need for regulation to apply

This is of course a difficult issue to deal with, especially at a global level, with different conceptions of the nation state and the levels of control it should exercise over the populace/corporations. The issue of how common general regulations are to be arrived at (through multi-stakeholder models, inter-governmental models, etc.) is also critical and the debate over an appropriate forum to deal with such issues appears to be at a very nascent stage.

The realpolitik of the situation is important to consider

For instance, countries such as China were not particularly vocal at the WCIT (at least publicly), possibly as they are aware that national laws and action would trump any international norms established under a recommendatory treaty. There was quite simply no need to make a huge fuss about the ITRs and what they could or could not accomplish for such countries.

For certain others, such as Iran, it was particularly important to have in place provisions that could be used to bind western countries to ensuring global connectivity – something that the NATO allies in particular strongly resisted. While the language of paragraph 3 of the preamble, on the right to access, could certainly be argued over (for instance, whether the right to access should be granted to Member States or to the public of these Member States - as human rights, or the right to access telecommunications networks cannot as a matter of fact be granted to a country as a whole), the general principle of ensuring global telecommunications connectivity is, I believe, well within the mandate of the ITU and the ITRs appear the logical place to set such norms.

The WCIT was therefore very much the first stage in a battle for dominance over the Internet sphere, with the US and its allies very clearly refusing to accept any sort of global system of regulation over something that it controls (in any case many issues of governance over telecommunication service providers would be anathema to economic principles of free trade and capitalism). Of course, this makes the position of civil society in global South countries particularly difficult, as one can see the merits of a system controlled largely by a country that has such high tolerance for free speech and expression, but at the same time there is clearly a problem with such a unilateral system of regulation/governance, in particular one that places global corporations in such a privileged position vis-à-vis democratically elected governments/representatives of local populations.

The ITU itself was clearly attempting to belay concerns over its lack of transparency and openness and, largely due to the media pressure in the run up to the conference, was very conscious to ensure that the WCIT was not seen as a government takeover of the Internet governance space

It appears that the ITU is willing to accommodate larger public participation (though this might even at its best fall short of levels of participation for non-state actors in a multi-stakeholder environment), thereby leading to more public acceptability of its role in governance over the Internet.

Care must be taken, however, to ensure that there is no creeping expansion of jurisdiction by the ITU, including through revision of the ITRs in another eight years. A mandate for such periodic revision looks likely given the support for the inclusion of a Resolution to this effect at the WCIT – though it may be noted that northern countries were largely against any periodic review, too, arguing that a stable telecommunications environment would not be enhanced by constant revision of global regulation.

Despite its claims of being a forum that arrives at decision exclusively through consensus building, the WCIT demonstrated that even in a multilateral forum, decisions can be pushed through without appropriate consideration or complete accord

This was clearly illustrated by the ‘temperature taking exercise’ regarding certain text in the preamble and the manner in which the Chair occasionally steamrollered dissent. Further, the fact remains that for all the talk of transparency and openness the major or critical decisions and negotiations took place behind closed doors - the ITU has a tough task on hand to overcome these structural and other problems.

Finding common ground on quite a few issues was difficult, leading to instances of ‘compromise’ that can only be termed absurd

An example of this is the inclusion of both the words ‘security’ and ‘robustness’ in Article 5A, when different countries clearly argued in favour of one and against the other. More concretely, developed countries preferred to use the word robustness, so that this could be read as referring to the ability of a network to recover from systemic failures. They were concerned that the term security left too much room for interpretation. In contrast, other countries, in particular the Arab countries, were insistent that the term security is well-defined in international law whereas the term robust is not, and that the latter does not reflect the intent of the provision adequately.

The entire WCIT appeared to be driven by a need to show a result at the end of the conference (and one that would be publicly acceptable) – which is why the ‘compromise’ text in the new ITRs was by and large pushed through in the final few plenary sessions.

As the final treaty was nevertheless accepted by only 89 states, its eventual impact remains to be seen.


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