Article 48 of the ITU Constitution

Article 48 of the ITU Constitution provides that “Member States retain their entire freedom with regard to military radio installations”, a provision that the International Group of Experts agreed reflects longstanding State practice with respect to the governance of international telecommunications.

In this regard, they noted that an analogous exemption was included in the International Telegraph Union’s (the predecessor of the International Telecommunication Union) International Telegraph Convention of 1906. The exception was retained in subsequent versions of both Unions’ Conventions.

Until the mid-19th century, single intergovernmental agreements were used to regulate various aspects in conjunction with telegraphy, the foundation stone of modern telecommunication. Out of the necessity to find and develop international standard, and to provide necessary technical assistance, the International Telegraphic Union (the predecessor of today’s International Telecommunication Union or ITU) was founded as a specialised body in 1865. In 1932, it changed its name to the current one and was later made an agency under the U.N. umbrella in 1947, retaining its specialised character.

While in general recognising the sovereign right of each state over its telecommunication, the International Telecommunication Union (ITU) is concerned with maintenance and extension of cooperation with regard to the use of telecommunication on the international plane. In addition, it also promotes development of facilities and efficiency of services, as enshrined in ARTICLE 1 of the ITU Constitution.

ITU has three main areas of activity

Satellites enable phone calls, television programmes, satellite navigation and online maps. Space services are vital in monitoring and transmitting changes in such data as ocean temperature, vegetation patterns and greenhouse gases – helping predict famines, the path of a hurricane, or how the global climate is changing. The explosive growth of wireless communications, particularly to provide broadband services, demonstrates the need for global solutions to address the need for additional radio spectrum allocations and harmonised standards to improve interoperability.

ITU’s Radiocommunication Sector (ITU-R) coordinates this vast and growing range of radiocommunication services, as well as the international management of the radio-frequency spectrum and satellite orbits. An increasing number of players need to make use of these limited resources, and participating in ITU-R conferences and study group activities – where important work is done on mobile broadband communications and broadcasting technologies – is becoming an ever-higher priority for both governments and industry players.

ITU standards (called Recommendations), in ITU’s Telecommunication Standardization Sector (ITU-T), are fundamental to the operation of today’s ICT networks. Without ITU standards you couldn’t make a telephone call or surf the Internet. For Internet access, transport protocols, voice and video compression, home networking, and myriad other aspects of ICTs, hundreds of ITU standards allow systems to work – locally and globally.

ITU’s Telecommunication Development Sector (ITU-D) has a program (whether the interests are in entering or expanding presence in emerging markets, demonstrating global ICT leadership, learning how to put good policy into practice, or pursuing a mandate for corporate social responsibility). In an increasingly networked world, expanding access to ICTs globally is in everybody’s interest. ITU champions a number of major initiatives which encompass ITU’s internationally-accorded mandate to “bridge the digital divide”.

The purposes of the International Telecommunication Union (ITU)

Founded in 1865 to facilitate international connectivity in communications networks, ITU allocates global radio spectrum and satellite orbits, develop the technical standards that ensure networks and technologies seamlessly interconnect, and strive to improve access to ICTs to underserved communities worldwide. It says on ITU’s website that “Every time you make a phone call via the mobile, access the Internet or send an email, you are benefitting from the work of ITU”.

The purposes of ITU are, according to ARTICLE 1 (on the purposes of the Union) of the Constitution of the ITU, “to maintain and extend international cooperation among all its Member States for the improvement and rational use of telecommunications of all kinds”, “to promote and enhance participation of entities and organizations in the activities of the Union and foster fruitful cooperation and partnership between them and Member States for the fulfilment of the overall objectives as embodied in the purposes of the Union”, “to promote the use of telecommunication services with the objective of facilitating peaceful relations”, and “to promote, at the international level, the adoption of a broader approach to the issues of telecommunications in the global information economy and society, by cooperating with other world and regional intergovernmental organizations and those non-governmental organizations concerned with telecommunications”.

To this end, the Union shall in particular: a) effect allocation of bands of the radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments and, for space services, of any associated orbital position in the geostationary-satellite orbit or of any associated characteristics of satellites in other orbits, in order to avoid harmful interference between radio stations of different countries; b) coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of the radio-frequency spectrum for radiocommunication services and of the geostationary-satellite and other satellite orbits; and e) coordinate efforts to harmonize the development of telecommunication facilities, notably those using space techniques, with a view to full advantage being taken of their possibilities”.

Article 48 of the ITU Constitution

ARTICLE 48 of the ITU Constitution on “Installations for National Defence Services” (military purposes) states that “1 Member States retain their entire freedom with regard to military radio installations. 2 Nevertheless, these installations must, so far as possible, observe statutory provisions relative to giving assistance in case of distress and to the measures to be taken to prevent harmful interference, and the provisions of the Administrative Regulations concerning the types of emission and the frequencies to be used, according to the nature of the service performed by such installations. 3 Moreover, when these installations take part in the service of public correspondence or other services governed by the Administrative Regulations, they must, in general, comply with the regulatory provisions for the conduct of such services”.

ARTICLE 6 of the ITU Constitution on “Execution of the Instruments of the Union” adds that “1 The Member States are bound to abide by the provisions of this Constitution, the Convention and the Administrative Regulations in all telecommunication offices and stations established or operated by them which engage in international services or which are capable of causing harmful interference to radio services of other countries, except in regard to services exempted from these obligations in accordance with the provisions of Article 48 of this Constitution”.

So far, a few countries (like China, France or the United States of America) have requested application of ARTICLE 48 of the ITU Constitution by stating that the use of their satellite networks was for the purpose of national defense, military or governmental use. This comprises more than a hundred satellite networks across more than sixty unique orbital positions.

Member States retain their entire freedom with regard to military radio installations. These installations must, so far as possible, a) observe statutory provisions relative to giving assistance in case of distress and to the measures to be taken to prevent harmful interference; and b) the provisions of the Regulations (types of emission and the frequencies to be used, according to the nature of the service) performed by such installations. Let’s recall that a Harmful Interference is defined by the ITU Constitution as “Interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations”.

ARTICLE 48 of the ITU Constitution refers to “military radio installations” and not to “governmental purposes in general” (World Radiocommunication Conference, 2015). Also, there should be no restriction in terms of class of station and nature of service for a station eligible to operate under ARTICLE 48 of the ITU Constitution (World Radiocommunication Conference, 2015).

This restriction is in line with a broader obligation falling upon ITU Member States, namely to avoid harmful interferences to the radio services or communications of other Member States; ARTICLE 45 of the ITU Constitution (on Harmful Interference) states that “1 All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States or of recognized operating agencies, or of other duly authorized operating agencies which carry on a radio service, and which operate in accordance with the provisions of the Radio Regulations. 2 Each Member State undertakes to require the operating agencies which it recognizes and the other operating agencies duly authorized for this purpose to observe the provisions aforementioned. 3 Further, the Member States recognize the necessity of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications mentioned”.

As a conclusion, ARTICLE 48 of the ITU Constitution gives freedom concerning orbits to Member States when are involved “military radio installations”. The ITU can’t “effect allocation of bands of the radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments and, for space services, of any associated orbital position in the geostationary-satellite orbit or of any associated characteristics of satellites in other orbits, in order to avoid harmful interference between radio stations of different countries” when are involved “military radio installations”.