[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 [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.