3 - Corporations and the Making of Public Standards in International Law

Summary

Transnational private regulation poses distinct questions of coherence and legitimacy within the international legal order. Regretfully, international legal scholarship is not sufficiently concerned with the interplay between public and private authority in spite of the proliferation of the latter. This contribution critically studies this interaction while zooming in on the dynamics of standard-setting through two case studies: the growing need for coherence and legitimacy of global food safety standards, and the growing (security) concerns for regulatory capture in the critical standard-setting domain of international communication within the International Telecommunication Union. Focusing in particular on international trade law rules such as those applying to sanitary, phytosanitary and technical barriers to trade, but also on those at the regional level such as in the EU, the contribution studies how democratic accountability and legitimacy of transnational private rule-makers is enhanced both ex ante as well as ex post though forms of recognition.

3.1 Introduction

The present contribution has been inspired by a recent regulatory battle in a specialized agency of the United Nations (UN),¹ the International Telecommunications Union (ITU). The theme is particularly rich to illustrate some fundamental questions underlying the relationship between private and public actors and standards in international law, in particular, issues of corporate capture, democratic legitimacy and accountability, and human rights. It is also, from another point of view, a fascinating tale about the rise of China within the UN system; about how Chinese technology corporations are actively proposing new international standards on a number of issues, including a new internet protocol and rules on facial recognition, through international regulatory agencies like the ITU; and how Western governments, including the European Union (EU) and its Member States, have rallied to counter the Chinese offensive.² While their actions are officially inspired by concerns for the protection of personal data and the privacy of individuals – in other words, by human rights – there are other matters at stake, including the question of corporate influence in public standard-setting bodies, the coherence with existing standards, and, last but not least – and not within the purview of this contribution – the preservation of Western normative dominance.³

We start with situating the recent regulatory battles in the ITU (Section 3.2) and delve subsequently in the other issues: corporate influence in public standard-setting bodies (Section 3.3), democratic legitimacy and accountability (Section 3.4), and human rights (Section 3.5).

3.2 The Battle for Facial Recognition Standards and a New Internet Protocol at the ITU

3.2.1 China’s Choice for the ITU

The ITU is one of the oldest global regulatory agencies.⁴ Originally founded as the International Telegraph Union in 1865 to promote cooperation among international telegraphy networks, the ITU has contributed for more than 150 years to the connectivity, interoperability, and standardization of telecommunications, from the use of the Morse code to satellite communications. As a UN specialized agency since 1947, it has evolved into a unique platform for global public–private partnerships and has firmly embraced the corporate sector and other stakeholders, proudly announcing on its website that its “global membership includes 193 Member States as well as some 900 corporations, universities, and international and regional organizations.”⁵ More accurately, there are two types of members: 193 Member States and the 900 “Sector Members.” Since 1994, Sector Members are allowed to formally participate in the decision-making processes of the ITU and since 1998 they are recognized as having formal rights of participation under the ITU Constitution.⁶ The ITU has three sectors: Radiocommunication (ITU-R), Telecommunication Standardization (ITU-T), and Telecommunication Development (ITU-D). Corporations or organizations may become a member of one or more sectors and may join as a Sector Member or Associate.⁷ Importantly, much of the regulatory dynamics in the ITU starts in “Study Groups,” which are renewed every four years. Each of these Study Groups, in which “thousands of experts representing government, industry and academia” participate, is responsible for progressing ITU work in a specific field of the ITU’s mandate; they develop the technical basis for ITU agreements, standards, and reports. The mandates and leadership teams of each Sector’s Study Groups are decided by the Sector’s respective governing bodies, that is, the Radiocommunication Assembly (RA), the World Telecommunication Standardization Assembly (WTSA), and the World Telecommunication Development Conference (WTDC).⁸ It has been observed by members of delegations to the ITU that ITU standards – which typically take around two years to be developed – “are increasingly written by companies, rather than governments”.⁹

It is in this context that China has displayed a remarkable drive to shape international standards, reflecting “long-standing concerns that Chinese representatives were not at the table to help set the rules of the game for the global Internet.”¹⁰ The country is known for sending the largest delegation to the ITU’s Study Groups, including Huawei and other state-owned enterprises. Huawei itself is said to have introduced some 2,000 new standard proposals to ITU Study Groups on topics such as 5G, cybersecurity, and artificial intelligence.¹¹ More in particular, since the autumn of 2019, through quite a number of its technology corporations, China has been pushing two initiatives in the ITU: (i) a new standard for facial recognition and (ii) a new Internet Protocol (“New IP”). It was the Financial Times that disclosed on December 1, 2019, that a battle was looming within the ITU regarding the shaping of facial recognition standards.¹² The newspaper reported that

Chinese technology companies are shaping new facial recognition standards at the UN … as they try to open up new markets in the developing world for their cutting-edge technologies. Companies such as ZTE, Dahua and China Telecom are among those proposing new international standards – specifications aimed at creating universally consistent technology – in the UN’s International Telecommunications Union (ITU) for facial recognition, video monitoring, city and vehicle surveillance.

Another Financial Times article, of March 2020, discusses China’s attempts since September 2019 to convince ITU delegates of the need to construct an alternative form of the Internet. It explains why the ITU has been chosen for these two initiatives. As a global organization of 193 Member States and one of the oldest specialized agencies of the UN, it is seen as the de facto standards body for telecoms networks:

Standards produced there legitimise new technologies and systems in the eyes of certain governments – particularly those in the developing world who don’t participate in other internet bodies. Ultimately, they give a commercial edge to the companies who have built the tech they are based upon.¹³

It is said that African states in particular tend to follow ITU standards as they do not have the resources to develop standards themselves.¹⁴ Moreover, such standards “are commonly adopted as policy by developing nations in Africa, the Middle East and Asia, where the Chinese government has agreed to supply infrastructure and surveillance tech under its ‘Belt and Road Initiative’” (BRI).¹⁵ Chinese corporations – particularly Huawei, Hikvision, Dahua, and ZTE – supply AI surveillance technology in sixty-three countries, thirty-six of which have signed up to the BRI.¹⁶ It is also known that Chinese corporations are supplying surveillance infrastructure to countries in Africa, including Angola, South Africa, Uganda, and Zimbabwe.¹⁷ It has been observed that

while European and North American businesses participate heavily in the standards bodies such as the Internet Engineering Task Force (IETF), the Institute of Electrical and Electronics Engineers (IEEE), and the 3rd Generation Partnership Project (3GPP), the ITU gives China a chance to leverage its influence in Africa, the Middle East and Asia, where ITU standards are often adopted as policy.¹⁸

While it is often thought that standard-setting organizations like the ITU, the International Organization for Standardization (ISO), or the Electrotechnical Commission (IEC) operate on a mere technical basis with a view to reaching worldwide interoperability, it has been highlighted that their decision-making processes are more political than expected.¹⁹ It is clear that the Chinese government – notably through the upcoming China Standards 2035 strategy²⁰ – is pursuing a strategy of increasing influence in international organizations, particularly throughout the UN system,²¹ and that it is linking this to the offensive interests of its business enterprises, especially in technologically advanced sectors involving 5G, facial recognition, blockchain,²² and AI. China has recently spread its influence rapidly in the most important organizations for technical standards: Zhao Houlin was secretary-general of the ITU from 2015 to 2022;²³ Shu Yinbiao is president of IEC since 2020; and Zhang Xiaogang was president of ISO from 2015 to 2018.²⁴

3.2.2 China’s New IP proposal

In September 2019, Huawei Technologies Co. Ltd. (China), China Mobile Communications Corporation, China Unicom, and the Chinese Ministry of Industry and Information Technology proposed to the Telecommunication Standardization Advisory Group (TSAG) of the ITU to study the radical idea of a New IP, that would replace the current TCP/IP (Transmission Control Protocol and Internet Protocol).²⁵ In its proposal, Huawei asserted that the current IP is unsuited for the development of new digital applications, for which the development of a new protocol is needed. It therefore suggested the Study Groups of ITU-T to start a further long-term research in the then ongoing (2017–2020) and the next (2021–2025) study period.

In the meetings of the TSAG from February 10 to 14, 2020, this proposal (which has been given the new title “New Vertical Communication Networks”) encountered critical reactions from Dutch and United Kingdom internet registries. They argued that internet protocols have been developed in a “bottom up” manner and that relevant work is taking place in the Internet Research Task Force (IRTF) and in the IETF.

In the course of 2020, discussions took place in various ITU-T Study Groups, as they are the ones preparing proposals for new study questions to be decided at the WTSA meeting that was scheduled to take place in Hyderabad, India, from March 1 to 9, 2022.²⁶ The Chinese New IP proposal was discussed in Study Group (SG) 11 (“protocols and test specifications”) and SG 13 (“future networks”). The United Kingdom, the EU, and its Member States objected to the proposal for a variety of reasons. They saw no evidence that the current standardization setting had failed in developing new internet functionalities nor that foreseeable requirements, such as those linked to the development of AI, Augmented and Virtual Reality, or Internet of Things (IoT), risked being insufficiently addressed. They also expressed their preference that new protocols and standards be discussed in the relevant Standards Development Organizations (SDOs)²⁷, in particular in the IETF, where the decision-making process is transparent, bottom-up, and open to all stakeholders (including industry, civil society, and academia), rather than in the ITU, where decision-making is top-down, intergovernmental, and does not involve all stakeholders. Duplicating work at the ITU could lead to higher costs and undermine interoperability. They also expressed the concern that implementing the Chinese proposal for a top-down, incumbent-controlled internet would bring a high risk of fragmentation of the global internet into locally controlled intranets, of decreased network resilience, and could seriously harm the openness of the global internet. This would not be in line with the European vision for the Internet, which is one of a single, open, neutral, free, and un-fragmented network, supporting permissionless innovation, privacy, and user empowerment.²⁸

At an ad hoc meeting of SG 13 on December 11, 2020, around 100 Chinese participants participated, strengthened by Burundi, which on behalf of ten African countries expressed support for the Chinese proposals. They encountered fierce resistance by all EU Member States, the United States, the United Kingdom, Canada, and Japan. At the next plenary meeting of SG 13, it was found that there was no consensus for the project, and the discussion was ended.

3.2.3 China Telecom’s Proposal for Standards on Facial Recognition

China Telecom introduced a proposal for a new “framework standard” through a document entitled “Requirements for face recognition application in visual surveillance” in ITU SG 16 (“multimedia”). Already in the spring of 2020, the European Commission raised a number of important concerns. The draft recommendation foresees the use of face recognition for a wide variety of use cases, for both public and private bodies, for example, to confirm the identity of a suspect, for police checks of identity cards, for criminal fugitives, transport, entertainment, employee attendance, trajectory tracking, etc. However, it does not contain any safeguards for the protection of personal data and privacy of individuals. From a European perspective, such a lack of safeguards is very problematic regarding its compabitility with the EU’s General Data Protection Regulation (GDPR).²⁹ As the draft recommendation cannot be implemented within the EU (and more broadly the European Economic Area, EEA) and could have a negative impact on transfers of personal data of European to third countries that implement this standard, the Commission strongly submitted that it should be considered under the ITU’s Traditional Approval Process (TAP), which applies to all recommendations with policy or regulatory implications, rather than through the Alternative Approval Process (AAP) proposed by China.

The Commission’s concerns, expressed at a virtual meeting of SG 16 in April 2020, were shared by the United States, Canada, and Australia, which also highlighted the very political implications of the draft recommendation and questioned the mandate of the ITU to adopt norms in this field. In a later contribution, Romania added to the concerns by pointing to the specific risks for fundamental rights of facial recognition techniques, arguing that ethical boundaries and principles needed to be defined, setting clear criteria and limits, before standardization could take place. It also referred to serious concerns expressed by other UN entities, such as the Office of the UN High Commissioner for Human Rights,³⁰ pointing to the fact that the ITU is part of the UN family and its values. We will come back to this latter point (Section 3.5).

At the meeting of SG16 of December 14–16, 2000, China Telecom pushed again for the Study Group to consider the proposal and accept the new standard. Twenty EU Member States, the Commission, the United Kingdom, Canada, the United States, Australia, and Japan mobilized and expressed their disagreement. Interestingly, the meeting was chaired by a staff member of China Telecom, who seems to have had difficulties accepting the lack of consensus.

3.2.4 Interim Evaluation

As is clear from the above, the two Chinese proposals concerned have, for the time being, been blocked in the ITU context by a mobilization of Western countries. The latter have become alarmed by China’s tactics, consisting of having Chinese corporations launching at first sight technical proposals in ITU Study Groups that, seemingly, are aimed at pushing through China’s vision on new technologies and the Internet. It can be expected that China will learn from the recent experience and will seek to fine-tune its strategy and approach. The massive investment of resources, including human resources – compare the presence of 100 Chinese participants at SG 13 in December 2020 – the involvement of lobbyists and chairs of Study Groups, and concerted outreach to developing countries, especially in Africa, have made a deep impression on China’s Western counterparts. However, in spite of concerted opposition of Western countries, it can be expected that China and the Chinese corporations and experts concerned will reiterate their proposals – possibly with some minor modifications – at future ITU meetings, capitalizing on their strong presence and influence over other delegations.

3.3 Corporate Influence in Public Standard-Setting Bodies

The developments detailed in Section 3.2 may raise eyebrows from the viewpoint of the integrity of the standard-setting process in international organizations.³¹ How can it be that corporate actors, such as powerful Chinese tech giants, have such an impact in the standardization work of the ITU? To be fair, there has always been a huge corporate role – directly or indirectly, openly or discretely – in the elaboration of technical standards by international organizations. Büthe and Mattli have observed that the key to successfully setting standards in such organizations is that governments and business corporations from their countries (often through domestic standard-setting bodies) “speak with a single voice.”³² For a long time, these organizations have been used by Western countries to exert and perpetuate their normative influence.³³ While the close intertwinement between the Chinese government and Chinese businesses may work particularly in China’s advantage, Western countries have also been teaming up with their businesses. In essence, China presents a case of what Büthe and Mattli call high “institutional complementarity”:

firms operating in a hierarchical and coordinated domestic system are likely to win because their system fits more naturally with the global structure, where a single regulator is the clear focal point. Such a domestic system enables a country’s stakeholders to speak with a single voice and in a timely fashion on the global stage …. High institutional complementarity implies that the interaction between domestic and global institutions is smooth and easy, yielding decisive strategic benefits to the firm in terms of effective interest representation in global rule-making and timely information.³⁴

Nevertheless, the question arises whether decision-making processes in public international organizations should not provide for a number of safeguards in this respect. The UN and other multilateral organizations and processes have been accused of “corporate capture” in a number of instances. The latter concept includes not just policy and legislative interference by corporations but also “revolving door” practices where corporate employees act as (or are part of a team of) government representatives in multilateral processes and forms of economic diplomacy where States prioritize corporate interests.³⁵ Cynically, such corporate capture has apparently also been nurtured by the

growing dependence of multilateral institutions on private funding, product of governments’ failure to pay their ordinary contributions to multilateral institutions, their earmarking of funds for issues that advance their (and their corporations’) interests and falling tax revenues/public funding during the era of neoliberalism.³⁶

The problem is definitely more widespread than the ITU, and it is not within the purview of the present contribution to come up with overarching suggestions to tackle it. It is nevertheless interesting to point to recent work of the OECD in this respect, which has engaged in a thorough exercise to map best practices in the standard-setting work of international organizations (IOs), including regarding stakeholder engagement.³⁷ The 2021 OECD report “Compendium of International Organisations’ Practices: Working towards More Effective International Instruments” acknowledges that such engagement constitutes a valuable tool to make international instruments more trusted, implemented and complied with, and to strengthen their ownership. However, it adds to this:

many IOs continue to face significant challenges in engaging with relevant stakeholders in a meaningful and inclusive manner, and reconciling transparency and effectiveness of discussions in the development of international instruments. Stakeholder engagement can be resource intensive, and IO staff may encounter difficulties in investing the necessary time and human capital …. Like in domestic rulemaking, there is a risk of capture of the engagement process by those who have sufficient resources to exert influence.³⁸

While the OECD report contains valuable examples of the practice of various international organizations regarding their engagement with stakeholders, both of a non-decisional and decisional nature, it concludes that, “despite the undeniable efforts of a large majority of IOs to engage more systematically with stakeholders, their practices in terms of mechanisms, openness and frequency of consultation vary widely from one organisation to another” and that “few IOs have developed a whole of organisation policy or strategy for stakeholder engagement to date, mapping their stakeholders and defining objectives and key steps to engage them and manage risks.”³⁹ It looks like the ITU is in urgent need of such a “whole of organization strategy.” This can not only help avoiding cases of capture but also strengthening the legitimacy of new standards, as Buhmann has righthly argued:

the inclusion of non-state actors that are the potential holders of new duties, whether (soft law) responsibilities or (hard law) obligations, offers a risk of capture if the process is not carefully designed and managed, but also a possibility for support and output legitimacy, if it is well designed and managed. Participation in a process is important for participants to perceive their needs and concerns addressed, but participation must be equalized in regard to access and power in order to avoid the risk of capture and illegitimacy due to or actual or perceived imbalance.⁴⁰

3.4 Democratic Legitimacy and Accountability

It has almost become an evergreen to raise the question of the democratic legitimacy of international standard-setting processes, both within intergovernmental organizations and within private rulemaking bodies.⁴¹ But the examples above of recent regulatory battles in the ITU, in which Chinese technology corporations with the support of China have aggressively tried to have new international standards accepted on internet protocol and facial recognition must touch a raw nerve with democracy watchdogs, from parliamentarians to journalists.

In the more general debate on the legitimacy of international standards, a traditional distinction has been made between “input legitimacy” and “output legitimacy.”⁴² This contribution will not enter into that discussion but submits that nowadays legitimacy should be preferably understood as “democratic legitimacy” and that the democratic character of a norm makes it legitimate.⁴³ Democracy is indeed considered a most important framework of analysis for assessing the legitimacy of a norm – whether global or local, public or private.⁴⁴

As argued in an earlier publication,⁴⁵ democracy may be successfully conceived at the global level by promoting a link between regulation and public deliberations rather than relying on fixed social, institutional, or procedural preconditions.⁴⁶ This democratic link can be fruitfully thought of in terms of public accountability. Where regulatory authority is exercised by a governing entity and not by the people directly – as is the case when international organizations or private bodies issue global standards – democracy is ultimately concerned with the connection of such governing entity with the group of people that it intends to govern.⁴⁷ This democratic connection can be achieved through mechanisms of public accountability. The democratic character of a governing entity and of the rules it produces is a function of its accountability to the “public.”⁴⁸

This raises the following questions in relation to ITU standards: (i) what is the “public” and what is its role? and (ii) what does “accountability” concretely mean?

As to the public, it is submitted that, in a global context, it should not so much be considered as a “global demos” but rather in a deliberative-democratic sense, which must not necessarily be territorially defined or linked with particular nation-states but may be approached from a more functional point of view. The relevant public associated with a governing entity and its norms may be identified in relation to a particular issue, on the basis of an “affected” criterion.⁴⁹ A public in relation to a particular issue would encompass the circle of persons affected by that issue and by its being regulated, which are often called “stakeholders.” In an area such as internet protocol and facial recognition, such public will be extremely wide: it includes internet users of all kinds, both individual citizens, businesses and other private actors, as well as governmental actors, consumers, producers, and so on. The enormous size of the so-defined public leads to important problems of identification, representativeness, or feasibility in designing democratic governance processes.⁵⁰ Whereas those problems are real, they are not insoluble (especially in regard of the progress of information technologies), and in any case, they should not be used as excuses to disregard the public’s entitlement to democratic accountability in global governance.⁵¹

Turning to “accountability,” it has often been exclusively considered in a retrospective dimension, where it designates a relationship in which an actor – in our case the general public – may require that another – for example, a governing entity – render account of its activities and impose a cost on them as the case may be. In the democratic discourse, such views of accountability emphasize the control exercised by the public on governing entities.⁵² In democratic societies, the people must be able to control those who govern them,⁵³ and this may be achieved in many ways, following different channels.⁵⁴ This view of accountability is retrospective because it logically presupposes that the governing entity has already acted, or issued, and/or implemented norms before control may be exercised, and it tends to be sanctions- and redress-oriented.⁵⁵ However, for the purposes of this contribution, a more extensive view of accountability is advanced, by adding a prospective dimension to the retrospective one. While the retrospective conception focuses on the governing entity “rendering account” of its activities to the public, the prospective dimension insists on the necessity for the governing entity to “take into account” the preferences, interests, and concerns of the public in making government decisions and issuing public norms, through appropriate means. This side of accountability emphasizes the responsiveness that a governing entity must show to the public’s concerns.⁵⁶ It is most effectively achieved by means of mechanisms of inclusive participation,⁵⁷ which can take many forms, such as voting procedures to adopt particular rules (directly or through representatives) or public notice and comment procedures prior to making a decision.

In light of the foregoing, public accountability in democratic governance can be defined as the relationship of a governing entity to its public according to which the former must allow inclusive participation of the latter in its governing activities, in order to take account of the public’s preferences in making government decisions, as well as the relationship according to which the public is entitled to control and sanction a posteriori the governing entity for the way it has conducted its government functions (rule-making, rule-implementation, rule-enforcement, rule-interpretation). If such an accountability relationship is effective between the governing entity and the public, the norms issued by the governing entity for the purpose of regulating issues of concern to the public should approximate what is called “democratic” and hence have good chances of being viewed as legitimate.

Again, trying to operationalize responsiveness and control in very technical global governance regimes such as ITU standards on internet protocol and facial recognition may lead to practical problems given the sheer size and diversity of the public. In this respect, much attention is presently given to the incremental formation of a vibrant and variegated “global civil society,” for the explicit purpose of participating in the governing of the global public space.⁵⁸ In various domains, global civil society organizations, most importantly nongovernmental organizations (NGOs), have been quite successful in generating debate and in participating in the establishment of truly global sets of norms, either of a public or private nature.⁵⁹ The question is, however, the extent to which, and the ways to find out whether, such civil society organizations, through their participation in, and oversight of, global public deliberations, effectively represent the public at large.

Accountability, to function effectively, also needs other supporting principles to be put in place. Transparency is one of them and can be defined as the level of access enjoyed by the relevant public to information about, from, or concerning the governing entity and its activities. Without access of the public to such information, participation will be meaningless, and control will be curtailed.⁶⁰ This is why transparency is a major stake in struggles for increased accountability in global governance, even though it should not be understood as a component of the notion of accountability itself, as is sometimes done, but rather as an enabler of accountability.⁶¹ Another principle that is crucial for deliberation in global governance, as well as for retrospective control thereof, is that of stating the reasons for making a government decision.⁶² Stating reasons allows shedding light on the deliberative dynamics, and on the arguments at play, and makes the control of the norm and of the governing entity more objective.⁶³

The considerations developed above may be considered rather abstract. It is submitted, though, that they are essential in order to ensure the democratic legitimacy of global standard-setting practices, whether of an intergovernmental or private nature. It will require further in-depth research to apply them to, and effectuate them practically in, the ITU and other SDOs. As the recent developments in the ITU detailed in Section 3.2 narrate, there is a great practical need to do this.

3.5 Human Rights

While traditionally, the ITU’s work stood far off from human rights,⁶⁴ it has been rightly observed that in recent years, as the organization has become increasingly involved in internet governance and online communications, the link between its decisions and the human rights of end users have become much more obvious.⁶⁵ However, an important concern about ITU standard-setting processes is that they do not involve a human rights screening:

There are virtually no human rights, consumer protection, or data protection experts present in ITU standards meetings so many of the technologies that threaten privacy and freedom of expression remain unchallenged in these spaces …. When it comes to facial recognition [these standards are] extremely dangerous from a human rights perspective.⁶⁶

For that reason, it has been asserted that

the ITU, as a technical standards setting body, is not an appropriate forum for discussing privacy, which is ultimately a human rights issue. Other bodies have far greater expertise on privacy, and a much clearer mandate to discuss it: the UN Human Rights Council, Human Rights Committee and Special Rapporteurs, to name but three. If the ITU were to start determining what national laws, policies and regulations related to privacy looked like, this would be a real cause for concern, particularly given the restrictions on the rights to privacy that exist in many of the states which make up the ITU.⁶⁷

As Romania indicated in the discussions regarding China Telecom’s proposal for a new standard on facial recognition (Section 3.2.3), as part of the UN family, the ITU should uphold the fundamental values of the UN, including the respect and promotion of human rights. There is a strong legal argument to support this thesis. In 1947, the UN and the ITU concluded a cooperation agreement, which made the latter a specialized agency of the former. Article IV of this agreement explicitly obliges the ITU to allow for the submission of formal recommendations from the UN “having regard to the obligation of the United Nations to promote the objectives set forth in Article 55 of the Charter” and to enter into consultation with the UN on such recommendations.⁶⁸ In Article 55(c) of the UN Charter, the UN is tasked to promote “universal respect for, and observance of, human rights and fundamental freedoms for all.” One may submit that the ITU, as a member of the UN family, is bound to respect and promote human rights but also that there may be a case for the UN’s ECOSOC to develop recommendations about the need for integrating human rights concerns in all regulatory processes in UN specialized agencies, including the ITU, with possibly an important consultative role for the UN High Commissioner for Human Rights.

3.6 Concluding Remarks

If it had not been for the Financial Times’ repeated coverage (Section 3.2), the larger public and academia would probably not have heard about the recent regulatory battles regarding standards for facial recognition and internet protocol that have been going on in the ITU. This finding by itself is rather worrying: global normative power plays are taking place in UN agencies on issues that deeply affect the daily lives of peoples around the world, and most of us are not even aware of it. In this chapter, we situated these recent regulatory battles in the ITU and developed a number of reflections regarding the need to scrutinize the risk of corporate capture, the need to better safeguard democratic legitimacy and accountability, and the need for a stronger scrutiny of such regulatory processes from a human rights point of view.

It is said that the EU and its Member States have recently decided to upgrade their capacity and representation in ITU meetings, having been alarmed by the initiatives of China and Chinese corporations. It is one of the lesser known fallouts of Brexit, as in the past the EU relied strongly on the United Kingdom’s participation in ITU bodies. All of this constitutes a wake-up call. Apart from a deeper and more proactive engagement by Western governments in the work of the ITU, there is clearly a need for a much wider reflection on how to enhance the democratic legitimacy and accountability of its regulatory processes and on a more critical engagement with the role that powerful corporations play within those processes, whether or not in sync with their national governments.