Regulatory Review: ITU Rules And Reservations

by Gerry Oberst

The Plenipotentiary (Plenipot) meeting of the International Telecommunication Union (ITU) wrapped up on October 21, after three weeks of debate regarding high-level topics such as funding for the ITU and the future direction of the international organization.

In addition to the important issues of the meeting and the formal “final acts” of the Plenipot, deep in the background lurk dozens of pages of little-known diplomatic fine print. As with most other ITU events, the final acts contain a lengthy series of so-called reservations and declarations by member countries. Timorous diplomats rely on these statements to identify what they disagree with in the overall meeting results.

The 2002 Plenipotentiary is larded with 110 of these reservations and declarations. Although the word “satellite” is mentioned only three or four times, some of the reservations have a direct bearing on the industry.

Most of these short paragraphs are standard clauses that a particular country reserves the right to take any action it considers necessary to safeguard its interests if other ITU members fail to comply with the rules. The United States adds in further declarations that it reserves the right to take whatever measures it deems necessary to respond to such responses. (One wonders why there is not another declaration of a right to respond to such responses…)

The European Union (EU) countries always issue a standard clause that they will apply the ITU rules in accordance with the Treaty establishing the European Community. This declaration has never been tested to our knowledge, but it essentially sets the EU rules above the ITU rules, which could set up interesting challenges if two EU countries were squabbling over, for example, orbital slots. Which would apply first, the EU licensing rules or ITU coordination rules?

Another standard clause is that countries will not accept any financial implications of other countries’ reservations–i.e., nobody agrees to pick up the tab for ITU funding if other counties do not make their voluntary contributions.

Then there is the standard reservation from some Islamic countries that they do not recognize Israel. This posturing has gone on for decades, as well as the standard Israeli response that declarations of this sort contravene the principles and purposes of the ITU and are legally invalid.

For the satellite field, another series of responses going back decades relates to the so-called “Bogota Declaration” issued in 1976 by certain equatorial countries, claiming they should have sovereign rights to geostationary satellite slots because the orbits are defined by reference to the equator. This caused a flurry of debate, especially at the ITU radio conferences devoted to orbital rules three decades ago, but no one takes that declaration seriously today. Nevertheless, Colombia routinely repeats in veiled diplomatic language this argument from the late 1970s. And in response, a large number of spacefaring nations, mainly European nations and the United States, in more muscular language routinely refuse to recognize any such claim.

The only new substantive declaration from the Plenipotentiary came from Mexico, which in a longer than usual reservation, said it would take any action it considers necessary to safeguard its use of the geostationary orbit, “taking into account the principle of equitable access to these resources.”

Plenipotentiary meetings deal mainly with organizational issues for the ITU. By contrast, the regularly-scheduled world radio conferences focus on substantive frequency issues, and as a result generate more specific reservations. Thus, even though the 2000 World Radio Conference in Istanbul, Turkey, contained fewer reservations (93 versus 110 for the Plenipot), some of those reservations dealt with more concrete issues.

For example, one issue at the 2000 conference was whether countries could object to programming content from broadcasting satellites in the coordination process. The United States declared in response that the ITU is not the proper forum to consider program content issues, and said applying any ITU rules in this way would not be in the interest of ITU members or the free flow of information.

In other substantive matters, the Czech and Slovak Republics took reservations over a technical interpretation of broadcasting satellite allotment rules. Syria said it was not bound by the same rules (BSS) until additional studies were completed. German speaking countries also expressed their understanding that those same changes would not affect their bringing into use of certain satellite assignments. Mongolia and Iran complained about certain mobile satellite rules. Tonga refused to agree to any additional and retroactive coordination requirements for its paper satellites. And Sweden jousted with certain Central European countries over particular orbital slots, in a series of reservations.

Compared to those substantive reservations, the “standard” reservations of ITU conferences seem to fulfill no purpose. For the diplomatic small print items, at the end of the day, the United States declaration number 70 is probably most appropriate, stating that the United States reiterates and incorporates all previous reservations and declarations made at all previous ITU conferences. If the basic reservation could state, “we agree except when we don’t,” then a lot of wasted paper could be saved on the international level.

Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is [email protected].