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ITU and MoUs - an Explanation

by Tony Rutkowski
October 23, 2020

The following is what the ITU Press Office released as a summary yesterday in a Briefing Note:
Memorandum of Understanding A long debate on the policy for authorizing the Secretary-General of the ITU to act as Depository of Memorandum of Understanding ensued. Some felt that article 42 of the Constitution enabled Member States and other recognized entities to enter into agreement among themselves if it was in conformity with the Constitution and the Convention of the ITU. So, article 42 was considered a sufficient condition for the Secretary-General to accept to act as depository. All was needed, it was felt, was to add a provision in the Convention to clearly spell out this possibility. Others however felt that it was up to Council to act as a oversight body on MoUs which was an essential element in any policy decision and that clear guidelines for implementing of MoUs were needed to be able to equitably assess the various requests received. Opposition was expressed however on the appropriateness for PP98 to decide on any given MoU as had been proposed. Clear support was however given to request the Council to draft the required guidelines in the spirit of article 42. Four principles finally emerged:
  • the Secretary-General should be able to accept to act as depository of MoUs
  • this role must be in line with article 42
  • the Council should determine whether each MoU meets the general requirements of article 42
  • full cost-recovery should be applied
It was therefore decided to set up a working group (C5/5) to consider whether there was a need to modify or not the Convention and to prepare a draft resolution instructing Council to develop suitable guidelines on the basis of the agreed four principles. (see document 52 for the possible criteria and guidelines suggested by the Secretary-General).

It's important to emphasize that ITU governing bodies, by long tradition and specific constitutional provisions, have allowed the elected officials and permanent staff almost no discretionary authority. Functions are very narrowly defined; and if authority is not specified, it's not allowed. The issue is not only consonant with local law, but literally goes back to a decision involving the creation of the ITU secretariat and a Swiss civil servant, Louis Curchod who became Director of the Berne Bureau of the International Telegraph Union in 1868 and ran it initially out of his apartment in Berne. (There are still little plaques around Berne marking the various locations!)

At that time, the only structure that existed was the equivalent of Plenipots that met every two or three years. The notion of an independent permanent bureau was not a popular idea. Indeed, considering the original Telegraph Union was created in 1850 and further expanded in 1865, it took some years before the Members were comfortable with the idea. It only proceeded after one of the delegates specified at the 1868 Vienna Conference that the Director would have "no decision to make, no means to impose his ideas...."

As probably the first true international organization, that secretariat model became the norm for scores of other international organizations - even a fundamental component of trust in the international civil service. That issue has resurrected itself from time to time over the ensuing decades as various Directors and elected officials have sought to head off on their own without gaining approval from the organization's governing body. On every occasion, the ITU's governing bodies have underscored the extremely limited discretionary authority of officials and staff.

The rationale here is fairly obvious. Given the diversity of views on issues worldwide, the considerable resources of the ITU, the ITU's official "zero growth budget policy," and the visibility of elected positions, the ITU's governing Members don't want elected officials heading off on their own.

The notion of the ITU serving as repository for MoUs - and thereby somehow giving them special stature is not a trivial matter. It also bypasses all the traditional legislative mechanisms and controls contained in the ITU Constitution and Convention.

There are only two MoU examples at present. One concerning global mobile telephone equipment that emerged from a semi-formal ITU policy forum, and the gTLD example that the Secretary-General just accepted on his own without authority or ITU process.

The "long debate" mentioned in the release, primarily centered on the gTLD-MoU - which at the time both the ITU Legal Advisor and the U.S. Secretary of State formally indicated were beyond the authority of the Secretary-General to pursue on his own and otherwise not consonant with ITU requirements. The matter was subsequently brought before the ITU's interim governing body - the ITU Council - which conducted a circular letter proceeding among Members, considered it again, and then passed the matter on to the Plenipot.

It was suggested by some that the MoU depository function could be justified under ITU Constitution Art. 42 - a long-standing provision dealing with instruments of accession to the ITU Constitution and Convention by Member States, and depositing them with the Secretary-General. However, it's an implausible stretch for Art. 42 to be used to provide a basis for serving as a depository for non-Members and for other instruments. So many argued that without modifying the Convention, establishing the basis, conditions, and rules under which the ITU could act as a depository - as well as an associated process- the Secretary- General could not do this.

What the Plenipot has tentative decided is specified in the Note, namely:

This now establishes a policy and process that each prospective MoU deposited with the ITU must meet. The Art. 42 language is interesting, and may yet be modified by the Plenipot, since in its present form, seems largely inapplicable. The only present nexus is an apparent requirement that the MoU parties must "accede to [the ITU] Constitution and Convention." This is a long-standing practice that has applied to private-sector parties such as Private Operating Agencies (i.e., private telecom providers) as a condition to their being "Recognized" by the ITU - and basically means they agree to accept ITU jurisdiction and agree to abide by all its instruments and decisions, and must be sponsored by an ITU Member State. Increasingly, today, not even telecom carriers want to accept these conditions and choose to forego being RPOAs.

The "full cost-recovery" provision goes to fully compensating the Union for all related costs - including translation and other requirements for ITU-related instruments. It's a very expensive avenue.

I hope this helps explain in some measure what is occurring here. There are two major reference books in this field if anyone wishes to pursue some of these matters. Codding, The International Telecommunication Union, E.J. Brill, Leiden, 1952 (reprinted by Arno Press in the 1970s). Codding & Rutkowski, The ITU in a Changing World, Artech House, Norwood MA, 1983. The ITU Constitution and Convention texts are also available as links at the ITU in a Nutshell site, <http://www.wia.org/dns-law/pub/itu-overview.html>

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