Proceedings of the Workshop - United Nations Office for Outer ...

EXPANDING GLOBAL COMMUNICATIONS SERVICES 75fully their international obligations. A list of putativeoffenders would be salutary.it extended application as indicated below (ResourceUtilisation fee).Cost recoveryAs indicated, one effect of the burgeoning numbers of‘paper satellites’ was to overburden theRadiocommunication Sector. Apart from thestrengthening of ‘administrative due diligence’ somesuggested solutions focused more precisely on the costof processing notifications and how that might be metin a way that would diminish the problem. First,notifications of systems unlikely to eventuate could bedeterred by the introduction of a suitable level of fee,and second, it was argued to be only right that thosewho as it were caused the cost should bear its burden inwhole or in part. The 1997 World AdministrativeRadio Conference was not willing itself to take such astep, but the Minneapolis Plenipotentiary Conferencehas introduced the concept of ‘cost recovery’ for someITU products and services.33 This goes beyond thematter of the paper satellite, though it clearly appliesthere, and the ITU Council has been empowered tointroduce such a system for other products and services.The circumstances on which a cost recovery fee may beapplied are however, closely circumscribed, theintention being to offset cost, not to generate income.34As a matter of principle, UNISPACE III shouldwelcome this financial realism, and perhaps advocateits adoption elsewhere in the UN system in appropriateinstances. Those who cause cost should be prepared inpart at least to contribute to it. That is a regularexpectation among the governmental and administrativestructures of the world. Why should internationalorganisations not act similarly?But the idea of a fee may have been introduced inan unduly restrictive manner. There is an argument for33 ITU Plenipotentiary Conference, Minneapolis, 1998,Resolution Plen/4, ‘Cost Recovery for some ITU Products andServices’.34 The Council will report on the matter further in 1999. As aside-note, one wonders whether the price of publications aredesigned only to offset costs.Implied powersThe ITU has on occasion been weak in its response tonew problems. There has been a tendency to seek toparse the constituent documents and a submission toargument based on purely verbal constructions that arenot intrinsically compelling. Insufficient regard hasbeen had to the purpose of the Union as expressed inthe constituent documents. In International Law thereis a doctrine that while an international organisation hasthe powers conferred expressly on it in thosedocuments, it also has impliedly powers required for itto carry out its function.35 In the Tonga matter theIFRB did question the number of notifications made bythat state, and eventually the number was considerablyreduced. Of itself that questioning was a use of impliedpower, as the ability to refer a notification back to thestate submitting it on other than technical grounds is notexpress in the ITU documents. However, in my view,the better solution would have been to decline to acceptnotifications which went beyond Tonga’s ownrequirement for satellite services, the Tongan originalnotification being therefore an abuse of the notificationsystem. Such declinature should have been made asbeing within the IFRB’s implied powers. It was wrong,and weakening of ITU authority, to have in effectnegotiated with Tonga. It is to be hoped that the newRadiocommunication Bureau and the RadioRegulations Board will be more robust should a similarinstance arise later. If they are not, and despite thetightening of the ‘due diligence’ requirements fornotification, the homesteader states discussed above(New Entrants, page 69) will be forming a queue.Radio spectrum and orbital mattersTurning from institutional and structural questions ofthe ITU, there are matters of substance in the use ofspace that require discussion.35 Cf. Reparations fo r Injuries Suffered in the Service o f theUnited Nations, 1949 IC J Rep. 174.