International Communications

The International Telecommunication Union and the Universal Postal Union

Francis Lyall

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409408697
• eBook ISBN: 9781317114338
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The International Telecommunication Union (ITU) and the Universal Postal Union (UPU) are the two major international organisations that are involved in the regulation of international communications. The ITU deals with electronic communications including radio. The UPU deals with mail. As such, both organisations are of major importance in modern life. This volume provides an up-to-date analysis of their development from inception to the present as they have responded to technical and political change. It also makes suggestions for the future. The volume will be an invaluable resource for researchers and students, policy-makers, government officials and administrators, and legal staff in telecommunication and postal organisations.

Chapter 1
Introduction: A General Survey

Communications have undergone massive change in the last two hundred years. Old roads were improved and new road systems built. The railway came on the scene. Shipping was transformed as engines replaced sails. Aviation was developed. These all facilitated the carriage of mail. Inventors produced the telegraph, and the railway helped the laying of electrical communications networks. Further experiment led to wireless communication. Computers and the Internet, using both cable and radio, have come on the scene. Technology has improved and the pace of innovation has increased. Of course it is arguable whether technical development and rapidity of communication has been an entirely good thing – that is material for a separate book.1 But our modern communications infrastructures are there. The ‘post’ distributes physical objects – letters and parcels. All modes of electrical communications carry data, documents, photographs and movies, news and trivia. We have to learn to live with these facilities.2 And, as we live with them, most either ignore, or are ignorant of, the substantial body of international law and less formal agreements that underlie modern international communications.

This book attempts a discussion of the two major international institutions through which international communications have been developed and are facilitated, the International Telecommunication Union (the ITU) and the Universal Postal Union (the UPU). With the arguable exception of the Rhine Commission,3 traced from their respective roots these two are the oldest international institutions that still operate in our modern world. Their histories are complex and considerable. In general I therefore omit the internal or municipal arrangements through which individual states organise their communications.

How to organise the world is a matter of continuing debate.4 But many may take issue with the preceding sentence. Its formulation implicitly suggests an overarching authority which will dictate on a global basis and reduce the separate and individual powers of the state – a view that is incompatible with the hallowed doctrine of state sovereignty.5 The question may be better expressed as how the world should be organised, leaving the means obscure. The notion that ‘sovereignty’ might have to be infringed in order properly to ‘organise’ is thereby avoided.6 Modern discussions have therefore chamfered the language of discourse preferring to discuss ‘global governance’.7 The fact to be faced is that there is now a considerable number of international organisations and associations through which are regulated (or, more congruent with reality, which regulate) international intercourse of many kinds and which, as a result, can affect matters traditionally the exclusive province of the ‘sovereign right’ of a state.8

Reliable communications are essential for the existence of modern civilised society. The internal functioning of individual states requires good communications. Internationally, communications between the ruling authorities of sovereign states are important, but in many ways it is the communication between companies, financial institutions and other commercial entities, that mould our lives. These cannot conduct their business without internal messaging between branches and between the enterprise, its suppliers and its market. There is also a demand for personal communication between individuals, family and friends. Email and the holiday postcard, the telephone and birthday cards, the news media, journals and book publication, all need communication services. Trustworthy communication systems, whether international or domestic, make sense in modern societies, and many now consider access to such systems to be a human right that should be available to all.9

Under the traditional rules of ‘state sovereignty’ it is for each state to determine how communications are organised within its territory. In the past many states fused their postal and electrical communications services into a single agency, usually classified for historical reasons as a PTT (a Postal, Telegraph and Telephone agency or service), albeit that the term clearly antedates the prevalence of radio services. Some have therefore come to consider communications as a public service to be provided by the state. On the other hand there has been a recent significant ingress of private enterprise communications providers, a development often accompanied by other ‘privatisation’ of state services. Nonetheless, without exception all states impose a measure of control on their internal communications for reasons of military and state security. Some also do so (or wish so to do) in respect of the content of communications entering or leaving their territories.10

So much for the organisation and control of communications within a state, entering it or emanating from it. However, although considerations as to content remain, for practical purposes international communications require a modification of the internal powers of states. For there to be international communications connections it is both sensible and desirable that systems and procedures are agreed between the states concerned and that they are complied with. Common usages and practices develop to cope with international traffic. Once that happens there is little point in the internal communication systems of a state differing unnecessarily from the relevant agreed international system. Effectively the internal variant would be redundant. The result is that internationally agreed arrangements are considerably determinant of national systems at least in their technical aspects.11 Thus the ITU Radio Regulations determine within each state the signal characteristics of radio stations that are capable of interfering with the use of similar stations in a neighbouring state. More anciently, through the UPU an envelope is delivered in a state other than that of its origin because it bears an address front and middle, and at top right a ‘frank’, usually a ‘stamp’ affixed in its state of origin,12 that has been cancelled at the time of its receipt into the postal system of the dispatching state both to signify that postal charges have been paid and to prevent its later re-use.

Curiously, the importance of the ITU and UPU now remains largely unacknowledged although without them (or something very like them) international communications would not exist. In general the two work well, and, working well, they are taken for granted.13 As the following pages demonstrate they are, however, the outcome of much discussion, negotiation, compromise and occasional conflict. Both have had documentary histories of almost a century and a half.

* * *

The evolution of the ITU and UPU to their present state has been complex. During the process they have had to meet various challenges and solve numerous problems. Of these certain may be summarised.

Constitutional Revision

Any international organisation must remain efficient and relevant. This requires the occasional revision of the constitution. The evolution of the constitutions of the ITU and UPU illustrate an insightful recommendation of C.W. Jenks.14 Surveying a vast number of institutions, in 1945 Jenks warned against inflexibility, undue flexibility, undue speed, or the overriding of a large and powerful minority in the modification of the constitutional instrument(s) of any international organisation.15 The passage of time produces the need to modify, particularly when an organisation deals with technical matters. What was sensible or desirable at one period of its existence may become outmoded, irrelevant or even deleterious. New developments have to be recognised and integrated into its working. In the Nineteenth century the normal method by which this was done was the holding of successive conferences, usually of plenipotentiaries, at which a new constitution was adopted. In the early ITU and UPU agreements this led to a problem. Each new Convention had to be ratified, but ratifications were not always speedily or timeously forthcoming. Different members might therefore be bound by different versions of the organisation’s documents. The UPU showed one possible solution. In its second Convention, that of Paris, 1878,16 Art. 23 1 provided: ‘After the date on which the present Convention takes effect, all the stipulations of the treaties, conventions, arrangements, or other acts previously concluded between the various countries or administrations, in so far as those stipulations are not in accordance with the terms of the present convention, are abrogated, without prejudice to the rights reserved by Article 15 above’.17 A similar provision appeared in successive UPU Conventions for nearly ninety years.18 The current UPU Convention, that of 1964 as amended,19 provides that whether a country does not ratify it or does not approve other UPU Acts, they remain valid for the other members (Art. 25 4). Otherwise the UPU Convention, General Regulations and other Agreements enter into force simultaneously, and from that date the corresponding Acts of the previous Congress are abrogated (Art. 31 2). In other words a UPU member can either ratify, or, at least technically, cease to be a member, its relationships with those members that ratify the new order having been cancelled as the old order has passed away.20 In the case of the ITU the early agreements as to wire communications did not require such measures. The wire service connections either existed, or they did not. Residual arrangements could be tolerated. It was only with the Madrid Telecommunication Convention of 1932 that its Art. 1 1 specifically provided that the new ITU replaced the old Telegraph Union, and its Art. 8 that all the previous Telegraph and Radio Conventions and their Regulations were abrogated and replaced.21 Similar provision was made by Art. 23 of the 1947 Atlantic City and later ITU Conventions. Now Art. 58 2 (239) of the ITU Constitution of Geneva, 1992, provides that the Nairobi Convention was abrogated and replaced as between the parties that had ratified the Geneva documents.22 The sanction for non-ratification is that by CS Art. 52 2.2 (210) a party loses its right to vote if it has not ratified the relevant documents within two years of their coming into force. However, the possibility of different members being bound by different versions of basic documents remains.

So says a strict interpretation of the texts. However, in any event as a matter of practice the ITU applies new provisions once they are in force, whether or not a particular state has ratified them. The UPU does similarly. In short, the complexity of the international communications networks for postal and electrical communications requires there to be uniformity so far as possible in such matters, and in practice that uniformity is applied irrespective of the technicalities of ‘hard law’. However, the slowness or failure of states to ratify is disappointing. Both institutions are considering moves towards a more stable constitution where the need for regular ratification is diminished.

Constitution, Convention and Regulations

In 1857 the Austro-German Telegraph Union (a major forerunner/antecedent of the ITU) pioneered the division of its constituent documents into a basic agreement and supplementary documents (‘Regulations’, ‘Instructions’ and the like) which, while of the same legal status as the ‘basic law’ documents, were likely to be regularly altered to cope with new problems and situations. This device is now found in both the ITU and the UPU. The model has been adopted in other international agreements that deal with technicalities additional to their general obligations and structural provisions.23 The division between constitutional and regulatory instruments can to an extent avoid the ratification problem outlined above.

Experts

Experts are needed both for the negotiation of agreements that regulate technical matters, and for the operation of those agreements in practice. We deal with these in that order.

A potential problem in the creation of international law by treaty is the competence of those who negotiate. While one aspect of ‘competence’ is negotiating skill, another is the extent to which a negotiator understands the nature of the subject that the negotiations are about. Diplomats, who are the officers through which a state normally negotiates, may not possess that competence when technical or practical matters are under consideration. In such a case it is therefore to be hoped either that diplomats comprehend the degree of their ignorance and seek advice or, perhaps better, that the state entrusts the negotiation to knowledgeable non-diplomats – in short to experts.

A feature of both the ITU and UPU is the role that experts play. ‘Experts’ were not unknown in the negotiation of early postal agreements when agreement between Post Offices depended on a thorough knowledge of the problems and the practicalities of the physicalities. Sometimes the expert was part of the diplomatic representation and sometimes merely an adviser. Nowadays in both Unions it is the experts, suitably authorised by their home states but without formal diplomatic status, who effectively hammer out the practical arrangements concerned. It must be acknowledged that when the practice began in the nascent ITU and UPU the presence of experts in international delegations was not novel. International conferences were considering and making recommendations on a variety of matters of common c...

Table of contents

• Cover
• Title Page
• Dedication
• Copyright Page
• Contents
• Preface
• Abbreviations and Acronyms
• 1 Introduction: A General Survey
• 2 The International Telegraph Union
• 3 The International Radio Union
• 4 The ITU – 1932-1992: Fusion, Reconstruction, Sclerosis
• 5 The Modern ITU
• 6 The Future of the ITU
• 7 The Universal Postal Union: to 1964
• 8 The Modern Universal Postal Union
• Appendix 1: Telecommunication Technologies
• Appendix 2: Restricted Postal Unions
• Index