Enforcement issues, including status of ITU-T Recommendations APT-ITU workshop on the International Telecommunications Regulations Bangkok, 6-8 February 2012 Richard Hill, ITU

Background A treaty must be applied by the Member States that are party to it A treaty could create rights and obligations for individuals or entities that are under the jurisdiction of Member States that are parties to the treaty 2

Implications for parties (1/5) Vienna Convention of 1969 on the Law of Treaties every treaty in force is binding upon the parties to it and must be performed by them in good faith. But a treaty may contain non-binding provisions, or, in some cases, provisions whose intent is uncertain and mostly left to the appreciation of the parties.

Implications for parties (2/5) a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty Unless the treaty specifically provides otherwise, or a reservation has been duly made, a party should adapt its national laws to be consistent with the treaty.

Implications for parties (3/5) The principle of good faith performance of treaty obligations imposes the transposition to the national legal system of the parties of those treaties that create rights and obligations for individuals or entities. Unjustified failure to implement a treaty shall entail the international responsibility of the concerned States.

Implications for parties (4/5) However, since States are sovereign, and not subject to any higher authority unless they have specifically agreed to the contrary, there are no generic mechanisms for enforcing treaties. If a State does not comply with the terms of a treaty to which it is a party, then, in general, there is no legal mechanism to oblige it to comply.

Implications for parties (5/5) There are, however, numerous specific enforcement mechanisms that form part of specific treaties. – bilateral investment treaties – WTO treaties – European Convention on Human Rights – International Court of Justice – ITU Constitution and Convention

Proposals made to CWG-WCIT To date, some Member States have suggested that consideration should be given to adding some sort of dispute resolution mechanism to the ITRs, but no specific, concrete proposal has yet been made.

Status of ITU-T Recommendations (1/5) The immediate predecessor of the ITRs, the 1973 Telephone Regulations, included a provision regarding Recommendations – In implementing the principles of the Regulations, Administrations* should comply with the relevant CCITT Recommendations, including any Instructions forming part of those Recommendations, on any matters not covered by the Regulations.

Status of ITU-T Recommendations (2/5) That provision was widely considered to require that telecommunications operators comply with Recommendations, in particular those dealing with tariff and accounting matters.

Status of ITU-T Recommendations (3/5) The current ITRs also contain a provision related to CCITT Recommendations. That provision, shown as a revision of the 1973 provision, is: – In implementing the principles of these Regulations, Aadministrations* should comply with, to the greatest extent practicable, the relevant CCITT Recommendations, including any Instructions forming part of or derived from these those Recommendations, on any matters not covered by the Regulations.

Status of ITU-T Recommendations (4/5) Further, the current ITRs contain an additional provision related to CCITT Recommendations that was not found in the 1973 Telephone Regulations: – References to CCITT Recommendations and Instructions in these Regulations are not to be taken as giving to those Recommendations and Instructions the same legal status as the Regulations.

Status of ITU-T Recommendations (5/5) It is clear that that the language adopted in 1988 cannot be understood to imply that either Member States or operating agencies have an obligation to comply with CCITT Recommendations.

Proposals made to CWG-WCIT Some of the proposals presented to CWG- WCIT take the view that this situation should be changed, at least with respect to certain specific areas covered by ITU-T Recommendations, and that certain Recommendations should have binding force.

Additional background (1/2) International organizations have the external normative authority – Most common approach is treaties/conventions. – Certain international organizations are expressly empowered to adopt regulatory texts having a general scope and that do not require ratification as treaties. – This derives from a provision of the constitutive act expressly assigning such competence.

Additional background (2/2) WHO can enact health-related regulations ICAO is authorized to adopt international norms and procedures that are binding on its Member States European Union regulations are directly binding on its Member States UN Security Council Resolutions are binding on all members of the UN, even if they are not members of the Security Council

ITU situation There is a mechanism in the Radio Regulations used to confer, under specific conditions, binding force to selected ITU-R Recommendations From the international legal point of view, it would be entirely possible to envisage a mechanism in the revised ITRs that would confer treaty value and, as appropriate, binding force to non-treaty instruments such as Recommendations Of course this says nothing about the advisability of such a provision, which is a matter to be decided by the Member States