Amendments to Constitution and Convention of International Telecommunication Union (ITU) (Geneva 1992)Senate Consideration of Treaty Document 108-5
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[Senate Treaty Document 108-5] [From the U.S. Government Publishing 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  \1\ (Minneapolis, 1998) and  \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  \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  \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.