WCIT Treaty Breakdown -- A Summary and Some Analysis

As you may have read by now (reports from the New York Times and Washington Post are pretty good),  that the WCIT conference has ended in disarray.  The United States and a number of other Western countries have refused to sign the final instrument updating the international telecommunications regulations because of a dispute over what we, in the United States would call the "jurisdiction" of the instrument.  Some in the international community wanted in effect, some acknowledgment that international telecommunications included some form of cognizance over the Internet.  As the Times reports:

The word ‘Internet’ was repeated throughout this conference and I believe this is simply a recognition of the current reality — the two worlds of telecommunications and Internet are inextricably linked,” said Hamadoun Touré, secretary general of the International Telecommunication Union.

By contrast, the United States opposed any mention of the Internet in the context of the new regulations:

The United States has consistently maintained that the Internet should not have been mentioned in the proposed treaty, which dealt with technical matters like connecting international telephone calls, because doing so could lead to curbs on free speech and replace the existing, bottom-up form of Internet oversight with a government-led model.

The end of the conference was mired in procedural irregularities as well.  Initially, a block of countries, including Russia, China and many in the Middle East, had wanted to amend the actual text of the regulations (here is the text of the underlying final regulations draft before the amendment process was complete) to include a mention of the Internet.  The US opposed that and SG Toure proposed consideration of a side resolution on the subject.  When the US and its allies opposed that as well, the chair of the meeting took what he said was a "sense of the meeting" show of hands.  Here is how one report described what happened next:

The Chairman of the Conference stated that he “wanted to have the feel of the room on who will accept the draft resolution. If you can use the big board, please. To have the resolution included.” He then paused as plates were raised in favor of the resolution. Next, he stated “I want the feel of the room, who is against this resolution.” During the pause, an ostensibly different set of plates were raised. He then declared that “[t]he majority is with having the resolution in.” The Chair then began to move to the next topic, the Preamble and the proposed addition of text on human rights obligations, but first recognized Spain. Spain proceeded to ask: “[a]s a point of order, I would like you to clarify whether the temperature you were taking was simply a taking of the temperature. Has it now been interpreted as a vote and had we known that it was a vote, we might very well have acted differently.” “No,” the chair replied, “it was not a vote, and I was clear about it.”

Nevertheless, it appears that the resolution was actually deemed adopted by the meeting -- and that, in turn, is what led to the United States decision to decline to sign the final instrument.  So what exactly does the resolution say?  Here is the text:

PRELIMINARY DRAFT NEW RESOLUTION To foster an enabling environment for the greater growth of the Internet The World Conference of International Telecommunication (Dubai, 2012), recognizing a) the WSIS Outcome Documents including Geneva (2003) and Tunis Phases (2005); b) that the Internet is a central element of the infrastructure of the Information Society, 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 to both existing and new users.; d) the valuable contribution of all stakeholder groups in their respective roles as recognized in paragraph 35 of the Tunis Agenda 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 I consultation with all stakeholders is also recognized,; f) Resolutions 101, 102, and 133 of the 2010 Plenipotentiary Conference., invites Member States 1 to elaborate on their respective position on international Internet-related technical, development and public policy issues within the mandate of the ITU at various ITU fora including, inter alia, the World Telecommunication/ICT Policy Forum, the Broadband Commission and ITU-T and ITU-¬D Study Groups.; 2 to engage with all their stakeholders in this regard., resolves to instruct the Secretary-General 1 to continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder 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 the ITU in this regard.

If you read Jack Goldsmith's earlier analysis, this resolution does not disturb you overmuch.  But it seems as though Jack's sanguine view has been somewhat overtaken by events.  First, note that the Secretary-General's pre-meeting assurance that the WCIT would "not vote on any issues" and proceed only by consensus was been tossed by the wayside.  The International Telecommunications Regulations have, in fact, been amended by majority vote -- a vote in which the US and other nations declined to participate.  Naturally, the new ITRs will not bind the non-signatories -- but the fact is that we now have the prospect of a bifurcated telecommunications system -- with two groups operating under two regulations.  That' can't be good. More importantly, and as Jack noted was possible, the WCIT has turned into an important signalling event.  Here are a few of the signals that I see in the resolution:

• The ITU intends to continue to seek a role for itself in international internet governance.  The instructions to the Secretary General are pretty clear in this regard.  Given that the United States thinks the ITU role should be ... zero ... this amounts to a majority repudiation of that view.  What the scope of the ITU's role will be remains to be determned.
• The invitation to Member States to "elaborate" their positions on internet governance issues is, in effect, a decision to create a series of permanent open fora within which authoritarian nation states like China and Russia can continue to advance their views about internet security and governance.  In effect, the resolution creates a process for continued disagreement.
• The assertion that all governments should have an "equal" role in interent governance decisions is a pretty firm move away from the multi-stakeholder model that involved mostly NGOs like ICANN and the IETF

But I think that in the end the most significant aspect of the seeming resolution is that it marks a declaration of conflict (not war -- but conflict) between competing visions of internet governance.  Most of the rest of the world has laid down a pretty clear marker that they want to see greater sovereign nation control of the internet -- either through the ITU or through nation states.  This phenomenon, which some of called the "Rise of a Cybered Westphalian Age," stands in contrast to the broadly Western view that existing multi-stakeholder governance works well and advances values of freedom and human rights better.  I agree with Jack that as a matter of law the consequence of this conference is likely to be minimal.  I think, however, that I find the atmospherics of the conference (and now, its resolution) more consequential and troubling than Jack does.