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[Senate Treaty Document 108-5]
[From the U.S. Government Printing Office]



108th Congress                                              Treaty Doc.
                                 SENATE                     
 1st Session                                                      108-5
_______________________________________________________________________

                                     



 
      AMENDMENTS TO CONSTITUTION AND CONVENTION OF INTERNATIONAL 
              TELECOMMUNICATION UNION (ITU) (GENEVA 1992)

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES


                              transmitting

  AMENDMENTS TO THE CONSTITUTION AND CONVENTION OF THE INTERNATIONAL 
    TELECOMMUNICATION UNION (ITU) (GENEVA 1992), AS AMENDED BY THE 
PLENIPOTENTIARY CONFERENCE (KYOTO 1994), TOGETHER WITH DECLARATIONS AND 
RESERVATIONS BY THE UNITED STATES AS CONTAINED IN THE FINAL ACTS OF THE 
             PLENIPOTENTIARY CONFERENCE (MINNEAPOLIS 1998)




April 30, 2003.--The Treaty was read the first time, and together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate

                         LETTER OF TRANSMITTAL

                              ----------                              

                                   The White House, April 30, 2003.
To the Senate of the United States:
    I transmit herewith for Senate advice and consent to 
ratification, the amendments to the Constitution and Convention 
of the International Telecommunication Union (ITU) (Geneva 
1992), as amended by the Plenipotentiary Conference (Kyoto 
1994), together with declarations and reservations by the 
United States as contained in the Final Acts of the 
Plenipotentiary Conference (Minneapolis 1998). I transmit also, 
for the information of the Senate, the report of the Department 
of State concerning these amendments.
    Prior to 1992, and as a matter of general practice, 
previous Conventions of the ITU were routinely replaced at 
successive Plenipotentiary Conferences held every 5 to 10 
years. In 1992, the ITU adopted a permanent Constitution and 
Convention. The Constitution contains fundamental provisions on 
the organization and structure of the ITU, as well as 
substantive rules applicable to international 
telecommunications matters. The ITU Convention contains 
provisions concerning the functioning of the ITU and its 
constituent organs.
    Faced with a rapidly changing telecommunication 
environment, the ITU in 1994 adopted a few amendments to the 
1992 Constitution and Convention. These amendments were 
designed to enable the ITU to respond effectively to new 
challenges posed.
    The pace at which the telecommunication market continues to 
evolve has not eased. States participating in the 1998 ITU 
Plenipotentiary Conference held in Minneapolis submitted 
numerous proposals to amend the Constitution and Convention. As 
discussed in the attached report of the Department of State 
concerning the amendments, key proposals included the 
following: amendments to clarify the rights and obligations of 
Member States and Sector Members; amendments to increase 
private sector participation in the ITU with the understanding 
that the ITU is to remain an intergovernmental organization; 
amendments to strenghten the finances of the ITU; and 
amendments to provide for alternative procedures for the 
adoption and approval of questions and recommendations.
    Consistent with longstanding practice in the ITU, the 
United States, in signing the 1998 amendments, made certain 
declarations and reservations. These declarations and 
reservations are discussed in the report of the Department of 
State, which is attached hereto.
    The 1992 Constitution and Convention and the 1994 
amendments thereto entered into force for the United States on 
October 26, 1997. The 1998 amendments to the 1992 Constitution 
and Convention as amended in 1994 entered into force on January 
1, 2000, for those states, which, by that date, had notified 
the Secretary General of the ITU of their approval thereof. As 
of the beginning of this year, 26 states had notified the 
Secretary General of the ITU of their approval of the 1998 
amendments.
    Subject to the U.S. declarations and reservations mentioned 
above, I believe the United States should ratify the 1998 
amendments to the ITU Constitution and Convention. They will 
contribute to the ITU's ability to adapt to a rapidly changing 
telecommunication environment and, in doing so, will serve the 
needs of the United States Government and U.S. industry.
    I recommend that the Senate give early and favorable 
consideration to these amendments and that the Senate give its 
advice and consent to ratification.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                     Washington, DC, March 1, 2002.
The President,
The White House.
    The President: I have the honor to submit to you, with a 
view to their transmission to the Senate for advice and consent 
to ratification, amendments to the Constitution and Convention 
of the International Telecommunication Union (Geneva, 1992) as 
amended by the Plenipotentiary Conference (Kyoto, 1994), signed 
by the United States at a Plenipotentiary Conference at 
Minneapolis on November 6, 1998 (the ``1998 Conference''). I 
also have the honor to submit to you certain U.S. declarations 
and reservations that also require Senate advice and consent.
    The text of the amendments, with annexes and U.S. 
declarations and reservations, is contained in a bound volume, 
which also includes texts of the following documents that do 
not require ratification by the United States: (1) declarations 
and reservations of other governments; (2) Rules of Procedure 
of Conferences and Other Meetings of the International 
Telecommunication Union; (3) Decisions; (4) Resolutions; and 
(5) a List of Abrogated Decisions and Resolutions. The 
certified English-language text of the amendments is submitted 
herewith. Certified copies of the Arabic, Chinese, French, 
Russian, and Spanish versions of the text are also available.
    The International Telecommunication Union (ITU), with over 
180 Member States, is the United Nations specialized agency 
with responsibility for certain international telecommunication 
matters. It provides a forum for global telecommunication 
standardization activities; for the international allocation, 
management, and use of radio spectrum; and, in the case of 
developing countries, for the promotion and provision of 
technical assistance in the area of telecommunications. These 
activities take place under the auspices of three ``Sectors''--
the Telecommunication Standardization Bureau, the 
Radiocommunication Bureau, and the Development Bureau.
    Over the past two decades, the telecommunication 
environment has experienced rapid change. Member States of the 
ITU and the organization itself have had to consider and adopt 
measures that will enable them to adapt effectively to these 
changes. This has led Member States to consider the extent to 
which changes in the structure and functioning of the ITU are 
necessary. In 1989, the ITU Member States created a High-Level 
Committee (HLC) to examine the structure and functioning of the 
ITU and to issue recommendations on the kind of changes 
required to ensure that the ITU could effectively adapt to the 
new telecommunication environment. The United States 
participated in the HLC and generally supported its 
recommendations.
    At the 1992 Geneva Plenipotentiary Conference, Member 
States, based in part on the recommendations of the HLC, 
submitted proposals on the restructuring of the ITU. These 
proposals led to the adoption of what was intended to be a 
permanent Constitution and Convention that could be amended by 
subsequent plenipotentiary conferences. The Constitution and 
Convention were amended in part at the 1994 Plenipotentiary 
Conference held in Kyoto, Japan.
    As part of the ITU's ongoing effort to ensure that it 
adapts to the rapidly changing telecommunication environment, 
the Kyoto Plenipotentiary Conference established a review 
committee to examine the rights and obligations of ITU Member 
States and private sector participants as well as the finances 
of the ITU. The 1996 ITU Council, having considered the work of 
the review committee, established the ITU-2000 Working Group 
(ITU-2000) to further examine these issues. Proposals from ITU 
Member States and the work of ITU-2000 formed the basis of the 
1998 Conference's consideration of further amendments to the 
Geneva Constitution and Convention.
    The major amendments to the Constitution and Convention 
adopted by the 1998 Conference (the ``1998 Amendments'') 
included the following:
     Amendments to clarify the roles of state members 
of the ITU and private sector participants in the ITU. There 
were concerns that the Geneva Constitution and Convention, as 
amended at Kyoto, did not clearly define the roles of state 
members and private sector participants in the work of the ITU. 
Some of the confusion appeared to derive from the failure to 
adequately define the various entities participating in the 
work of the ITU. For example, Article 3 of the ITU Constitution 
referred solely to the rights of ``Members of the Union.'' The 
ITU-2000 recommended that state members of the ITU be defined 
throughout the Constitution and Convention as ``Member 
States''; private sector entities participating in the work of 
a particular sector as ``Sector Members''; and private sector 
entities participating in the work of a given study group or 
subgroup as ``Associates.'' Several state members, including 
the United States, proposed that the 1998 Conference adopt 
those recommended changes and the 1998 Conference agreed. Thus, 
amendments to Article 3 of the Constitution differentiate 
between the rights and obligations of ``Member States'' and 
``Sector Members'' and Article 19 of the Convention, as 
amended, addresses participation by ``Associates.''
     Amendments to enhance private sector participation 
in the ITU. The ITU is an intergovernmental organization that 
allows for limited private sector participation. Private sector 
participation in the field of telecommunications has increased 
tremendously over the past few decades. As a result, private 
sector participants in the ITU have, through Member States, 
sought a greater role in the work of the ITU. To that end, 
amendments were proposed and adopted that, among other things, 
establish an alternative application process for private sector 
entities to become Sector Members of the ITU (i.e., an 
alternative to the existing procedure of applying through 
Member States) (see Convention, Article 19, ADD 234A-234C); 
explicitly recognize that private sector entities may provide 
chairs and vice-chairs of Sector assemblies and meetings and 
world telecommunication development conferences (see 
Constitution, Article 3, ADD 28B); explicitly recognize the 
right of Sector Members to take part, subject to specified 
conditions, in the adoption of Questions and Recommendations 
and in decisions relating to the working methods and procedures 
of the Sector concerned (see Constitution, Article 3, ADD 28C); 
establish a new category of private sector participant in the 
ITU, an Associate, that is authorized to participate in the 
work of a particular study group or subgroup (see Convention, 
Article 19, ADD 241A-241E); and establish the rights of a 
Sector, through its Bureau Director, to invite participation in 
a specified matter by organizations that do not generally 
participate in the Sector (see Convention, Article 20, ADD 
248B). The United States supported these proposals bearing in 
mind the need to ensure that Member States continue to 
determine the policy direction of the organization. I note that 
the United States for domestic policy reasons, however, will 
require that U.S. private sector entities seeking to become 
Sector Members apply for such membership through current 
procedures, which require the direct involvement of the U.S. 
government.
     Amendments to improve on the structure of the ITU. 
Some Member States, including the United States, proposed 
amendments to the structure of the ITU that would enhance the 
organization's ability to respond more effectively to the needs 
of Member States and Sector Members. These included amendments 
that formally recognize and spell out the roles of Advisory 
Groups in the work of the three Sectors. (See, e.g., 
Convention, Articles 11A, 14A and 17A.) The 1998 Conference 
also adopted amendments to a provision relating to the Radio 
Regulations Board (an entity responsible for approving the 
Rules of Procedure that govern, among other things, the 
application of the Radio Regulations to the registration of 
frequency assignments of Member States). Specifically, these 
amendments increased the number of members of the Radio 
Regulations Board from 9 under the current Convention to not 
more than 12 or a number corresponding to 6 per cent of the 
total number of Member States, whichever is greater. (See 
Constitution, Article 14, ADD 93A.) The intent is to allow for 
more members on the Board without compromise to the underlying 
tenet that the Board be comprised of individuals who understand 
the geographic, economic and demographic conditions of all ITU 
members. Amendments were also adopted that rename the World 
Telecommunication Standardization Conference as a ``World 
Telecommunication Standardization Assembly'' (WTSA) to reflect 
the fact that the WTSA is a non-treaty-making conference whose 
decisions must be consistent with the Constitution, the 
Convention, and the Administrative Regulations. (See, e.g., 
Constitution, Article 18.)
     Amendments related to World Radiocommunication 
Conferences and Assemblies. The World Radiocommunication 
Conferences (WRCs) play a significant role in the international 
coordination of the use of limited natural resources, in 
particular the allocation of radio frequencies. Demand for 
these resources is every increasing and, as a result, each WRC 
has had to tackle an ambitious agenda. Some Member States took 
the position that the time between WRCs was not sufficient for 
Member States to adequately prepare their positions on issues 
to be addressed at conferences. In order to address these 
concerns, the 1998 Conference adopted amendments that require 
that WRCs be held ``normally . . . every two to three years'' 
as opposed to ``normally . . . every two years.'' This was 
viewed as introducing flexibility in the scheduling of WRCs 
that would allow for more discretion in balancing the desire 
for more conference preparation time and the need to hold 
conferences at short enough intervals so as to not impede 
progress in introducing new technologies. (See Constitution, 
Article 13, MOD 90.) Consistent with that change, the 1998 
Conference adopted an amendment that requires that 
Radiocommunication Assemblies (RAs) also normally be convened 
every two to three years as opposed to every two years as 
provided for under the existing treaty text. (See Constitution, 
Article 13, MOD 91.) Whereas the existing treaty can be 
construed to require that RAs be associated in time and place 
with a WRC, the 1998 Conference also adopted an amendment that 
provides that RAs ``may be'' associated in time and place with 
a WRC. (See Constitution, Article 13, MOD 91.)
     Amendments that authorize new working methods for 
the ITU. The 1998 Conference adopted provisions authorizing the 
development of new working methods by the three Sectors, which 
would allow for the establishment of ``alternative approval 
processes.'' These provisions explicitly recognize the right of 
Sector Members to participate in the adoption of questions to 
be studied in ITU study groups in accordance with procedures 
provided for by the relevant conference or assembly. (See 
Convention, Article 20, ADD 246A.) The 1998 Conference also 
adopted amendments that recognize that a conference or assembly 
may establish that certain recommendations, which are discussed 
in a study group, may be adopted without the formal 
consultation of Member States. (See Convention, Article 20, ADD 
246A.) This alternative approval process (whereby Study Groups 
may adopt certain questions and recommendations without the 
formal consultation of Member States) may not be applied to 
questions and recommendations that have policy or regulatory 
implications. For example, such process will not be applied to 
questions and recommendations approved by the 
Radiocommunication Sector that are relevant to the work of 
WRC's and other categories of questions and recommendations as 
may be decided by Radiocommunication Assemblies; questions and 
recommendations approved by the Telecommunication 
Standardization Sector that relate to accounting and tariff 
issues; questions and recommendations approved by the 
Telecommunication Development Sector that relate to regulatory, 
policy, and financial issues; or questions and recommendations 
where there is any doubt about their scope. (See Convention, 
Article 20, ADD 246D-H.)
     Amendments related to strengthening the finances 
of the ITU. The expenses of the ITU are financed largely 
through the contributions of Member States and Sector Members. 
Each Member State and Sector Member is free to choose its class 
of contribution. The 1998 Conference adopted amendments that 
require that Member States announce their class of contribution 
at plenipotentiary conferences as opposed to within the six-
month period following a plenipotentiary conference. (See 
Constitution, Article 28, MOD 161.) Proponents of this 
amendment believed that a plenipotentiary conference could more 
effectively plan a budget with such information in hand. Member 
States that fail to announce their contributory unit during the 
Conference will retain the class of contribution previously 
chosen. (See Constitution, Article 28, ADD 161F.) The 1998 
Conference also acted to clarify and encourage Sector Member 
contributions by allowing Sector Members to identify the Sector 
to which their contributions are to be made. (See Convention, 
Article 33, ADD 480A.) The 1998 Conference also stipulated that 
Associates (a new class of participants) would help defray the 
expenses of the Sector, study group or subordinate group in 
which they participate. (See Convention, Article 33, ADD 483A.) 
The 1998 Conference also authorized the Council to determine 
criteria for the application of cost recovery in connection 
with some ITU products and services. (See Convention, Article 
33, ADD 484.) Finally, the United States proposed an amendment 
to the Convention that, if adopted, would have eliminated the 
requirement that interest be paid on arrears. Although 
generally supported by developing countries, the proposal 
failed to win consensus support for its adoption.
     Amendments of a technical nature. The 1998 
Conference adopted amendments to the Convention that removed 
the Rules of Procedure of Conferences and Meetings of the ITU, 
with the exception of provisions relating to reservations and 
the right to vote, from the Convention and transferred them to 
a separate legal instrument. (See Convention, Article 32B, SUP 
341-467.) This separate legal instrument entered into force on 
January 1, 2000, for those Member States that, as of that date, 
had submitted their instrument of ratification, acceptance, 
approval or accession to the 1998 Amendments. It will enter 
into force for all other Member States, including the United 
States, on the date on which they deposit their instruments of 
ratification, acceptance, approval or accession to the 1998 
Amendments. Unless otherwise agreed to by a plenipotentiary 
conference, amendments to this separate legal instrument shall 
enter into force on the date of signature of the Final Acts of 
the plenipotentiary conference at which they are adopted. (See 
Rules of Procedure of Conferences and Other Meetings of the 
International Telecommunication Union, 25.) Accordingly, they 
will not be sent to the Senate for advice and consent to 
ratification. The decision to transfer the rules to a separate 
instrument reflected a widely held view that Rules of Procedure 
should be subject to a more flexible amendment process than 
that currently applied to the Constitution and Convention. The 
Conference also adopted technical amendments to the provisions 
governing reservations. The proposed changes will have no 
effect on current U.S. practice with respect to taking of 
reservations.
    ITU practice provides for declarations and reservations to 
be submitted by governments prior to signature of the 
instruments to be adopted at a particular conference. In 1998, 
the United States submitted six declarations and reservations 
that are included in the 1998 Final Acts. These declarations 
and reservations, with the exception of statements No. 91 and 
92, which do not concern amendments to the Constitution and 
Convention, require Senate advice and consent to ratification. 
I will first address those declarations and reservations that 
will require Senate advice and consent.
    Consistent with longstanding U.S. practice at ITU treaty-
making conferences, the first (Number 90) incorporates by 
reference reservations and declarations from previous 
conferences and reserves the right to make additional specific 
reservations at the time of deposit of the U.S. instrument of 
ratification to the amendments to the ITU Constitution and 
Convention. It also reiterates the longstanding U.S. position 
that the United States can only be considered bound by 
instruments adopted at an ITU Conference once it officially 
notifies the ITU of its consent to be bound. The full text 
reads as follows:

          The United States of America refers to Article 32, 
        Section 16, of the Convention of the International 
        Telecommunication Union (Geneva, 1992), and notes that 
        in considering the Final Acts of the Plenipotentiary 
        Conference (Minneapolis, 1998), the United States of 
        America may find it necessary to make additional 
        declarations or reservations. Accordingly, the United 
        States of America reserves the right to make additional 
        declarations or reservations at the time of deposit of 
        its instruments of ratification of amendments to the 
        Constitution and Convention (Geneva, 1992) adopted by 
        the Plenipotentiary Conference (Minneapolis, 1998).
          The United States of America reiterates and 
        incorporates by reference all reservations and 
        declarations made at world administrative conferences 
        and world radiocommunication conferences prior to 
        signature of these Final Acts.
          The United States of America does not by signature or 
        by any subsequent ratification of the amendments to the 
        Constitution and Convention adopted by the 
        Plenipotentiary Conference (Minneapolis, 1998) consent 
        to be bound by the Administrative Regulations adopted 
        prior to the date of signature of these Final Acts. Nor 
        shall the United States of America be deemed to have 
        consented to be bound by revisions of the 
        Administrative Regulations, whether partial or 
        complete, adopted subsequent to the date of signature 
        of these Final Acts, without specific notification to 
        the International Telecommunication Union by the United 
        States of America of its consent to be bound.

    The second (Number 101) preserves for the United States the 
freedom to respond to other Member State reservations. It reads 
as follows:

          The United States of America refers to declarations 
        made by various Members reserving their right to take 
        such action as they may consider necessary to safeguard 
        their interests with respect to application of 
        provisions of the Constitution and the Convention of 
        the International Telecommunication Union (Geneva, 
        1992), and any amendments thereto. The United States of 
        America reserves the right to take whatever measures it 
        deems necessary to safeguard U.S. interests in response 
        to such actions.

    The third (Number 102) was in response to a statement by 
Cuba reserving its right to take any steps that it may deem 
necessary against U.S. radio and television broadcasting to 
Cuba and denouncing U.S. use of radio frequencies at 
Guantanamo, Cuba. The U.S. response, which is similar to 
responses entered by the United States at previous ITU 
Conferences, reads as follows:

          The United States of America, noting Statement 81 
        entered by the delegation of Cuba, recalls its right to 
        broadcast to Cuba on appropriate frequencies free of 
        jamming or other wrongful interference and reserves its 
        rights with respect to existing interference and any 
        future interference by Cuba with U.S. broadcasting. 
        Furthermore, the United States of America notes that 
        its presence in Guantanamo is by virtue of an 
        international agreement presently in force and that the 
        United States of America reserves the right to meet its 
        radiocommunication requirements there as it has in the 
        past.

    The fourth (Number 111), in which the United States joined 
24 other countries, in responding to a statement by Colombia 
concerning the use of the geostationary satellite orbit, reads 
as follows:

          The delegations of the above-mentioned States, 
        referring to the declaration made by the Republic of 
        Colombia (No. 50), in as much as this and any similar 
        statement refers to the Bogota Declaration of 3 
        December 1976 by equatorial countries and to the claims 
        of those countries to exercise sovereign rights over 
        segments of the geostationary-satellite orbit, consider 
        that the claims in question cannot be recognized by 
        this conference.
           Further, the above-mentioned delegations wish to 
        affirm or reaffirm the declaration made by a number of 
        delegations (No. 92) at the Plenipotentiary Conference 
        (Kyoto, 1994) and declarations at conferences referred 
        to therein as if these declarations were here repeated 
        in full.
          The above-mentioned delegations also wish to state 
        that the reference in Article 44 of the Constitution to 
        the ``geographical situation of particular countries'' 
        does not imply a recognition of claim to any 
        preferential rights to the geostationary-satellite 
        orbit.

    As previously noted, the United States also submitted two 
declarations that do not affect the legal interpretation of 
provisions of the Constitution and Convention and therefore do 
not require Senate advice and consent to ratification. They are 
provided below for the Senate's information.
    The first (Number 91) is a statement of U.S. intent to 
comply with the cost-recovery procedures outlined in 
Resolutions 88 and 91 as adopted at the 1998 Conference. While 
the United States does not consider resolutions to be legally 
binding, there is a general political expectation in the ITU 
that Member States will comply with them. The U.S. delegation 
therefore considered it prudent to enter a statement in the 
Final Acts that would signal to other members of the ITU that 
the United States would not necessarily apply the cost-recovery 
procedures set forth in the two resolutions to certain 
government systems. The text of Declaration Number 91 reads as 
follows:

          The United States of America will make all reasonable 
        efforts to comply with the cost-recovery procedures 
        contained in Resolutions [88] \1\ (Minneapolis, 1998) 
        and [91] \2\ (Minneapolis, 1998), but declares its 
        right not to do so in cases involving satellite 
        networks or systems that transmit government 
        telecommunications as defined under No. 1014 of the 
        annex to the Constitution of the International 
        Telecommunication Union (Geneva, 1992).
---------------------------------------------------------------------------
    \1\ Error in the original. The ITU publication of the Final Acts 
mistakenly refers to Resolution 95. The correct citation is to 
Resolution 88.
    \2\ Error in the original. The ITU publication of the Final Acts 
mistakenly refers to Resolution 73. The correct citation is to 
Resolution 91.

    The second (Number 92) reflects the U.S. reaction to 
Resolution 99, which enhanced the status of Palestine in the 
ITU to one that just falls short of the status enjoyed by 
Member States. Declaration Number 92 reflects U.S. concerns 
about the extent to which the resolution as adopted could be 
---------------------------------------------------------------------------
reconciled with provisions of the Constitution and Convention:

          The United States of America refers to Resolution 
        [99] \3\ Minneapolis, 1998) and notes its concern about 
        the action taken by this conference in that regard. The 
        United States of America reiterates its view that 
        Resolution [99] \3\ (Minneapolis, 1998) raises legal 
        concerns, particularly in regard to its consistency 
        with provisions of the Constitution and Convention of 
        the International Telecommunication Union (Geneva, 
        1992). Furthermore, the United States of America notes 
        its regret that political issues were allowed to 
        interfere with the technical work of this conference.
---------------------------------------------------------------------------
    \3\ Error in the original. The ITU publication of the Final Acts 
mistakenly refers to Resolution 72. The correct citation is to 
Resolution 99.

    The Department of State and the other agencies involved 
recommend that these declarations and reservations (with the 
exception of statements No. 91 and No. 92) be confirmed in the 
U.S. instrument of ratification of the amendments. The 
Department of State and the other interested agencies are of 
the view that no additional reservations are required.
    Ratifying the amendments will enable the United States to 
continue to play a significant leadership role in the affairs 
of the ITU.
    These amendments will not require implementing legislation 
on the part of the United States.
    The Federal Communications Commission; the National 
Telecommunications and Information Administration, Department 
of Commerce; and the Department of Defense concur in my 
recommendation that the amendments, with the U.S. declarations 
and reservations as discussed above, be submitted to the Senate 
for its consideration and advice and consent to ratification.
    Respectfully submitted.
                                                   Colin L. Powell.