IO Files
Department of State Instruction to the United
States Delegation to the Sixth Regular Session of the General
Assembly
restricted
SD/A/C.3/146
[Washington,] October 10,
1951.
Freedom of Information
(Agenda Item 11—Report of the Economic and Social
Council)
the problem
Faced with a decision of the Economic and Social Council reversing
the recommendation of the Assembly’s Ad Hoc
Committee, which had [Page 790]
suggested the calling of a special conference to complete the
proposed Convention on Freedom of Information, the General Assembly
must decide upon some form of definite action to dispose of this
Convention.
recommendations
1. The United States should strongly support the decision of the
Economic and Social Council and, in consultation with other
delegations, seek the adoption of a resolution postponing
indefinitely further consideration of this Convention (see Draft
Resolution #1, Annex A);
2. In the event the above proposal is defeated and the Assembly
decides to complete the Convention at this session, the Delegation
should be guided by the detailed comments with respect to each
article which are contained in Annex B;
3. If a majority favors the calling of a special conference to
complete the text, the U.S. should propose that the Conference’s
terms of reference be broadened to enable it to consider other
proposals relating to freedom of information and that governments be
represented by persons drawn from the fields of press, radio and
film; and
4. In any event, the U.S. should propose that the completed
Convention on the International Transmission of News and the Right
of Correction be opened for signature without further delay (see
Draft Resolution #2, Annex A) and that the
appropriate member of the delegation sign the Convention on behalf
of the U.S.
comment
As contrasted with the limited scope of the Convention on the
International Transmission of News and the Right of Correction (also
known as the “Newsgathering Convention”), which was adopted at the
Second Part of the Assembly’s Third Session but has not yet been
opened for signature, the proposed Convention on Freedom of
Information covers a very broad field. The Newsgathering Convention
merely facilitates the work of foreign correspondents as a limited
group. The Draft Convention on Freedom of Information on the other
hand provides that contracting states shall secure the right to
seek, to receive and to impart information and opinions. It forbids
contracting states to regulate the use of the media of information
in any manner discriminating against their own nationals or those of
other contracting states on political grounds, or on the basis of
race, sex, language or religion.
At the Second Part of the Third Session of the General Assembly, the
Third Committee considered the Freedom of Information Convention
only briefly and, after adopting revisions of the first five
articles, decided that it could not complete the draft at that
session and recommended [Page 791]
that it be placed on the agenda of the Fourth Session. At the same
time the Assembly decided not to open for signature the completed
Newsgathering Convention until it takes “definite action” on the
Freedom of Information text.
At its Fourth Session in 1949, the General Assembly, on the
initiative of the United States Delegation, rejected proposals to
complete the Freedom of Information Convention. At its Fifth
Session, however, the Assembly reversed its decision of the previous
year and appointed a special committee to prepare a new draft of the
Convention on Freedom of Information, having rejected by a vote of
14 to 25 a United States motion to postpone further action pending
definite action on the Draft Covenant. The Assembly further
instructed the Committee “to report to the Economic and Social
Council at its Thirteenth Session on the results of its work and to
submit recommendations, in particular, with regard to the
advisability of convening a conference of plenipotentiaries with a
view to the framing and signature of a convention on freedom of
information” (Resolution 426 (V)).
The Committee constituted for this purpose was seriously unbalanced
geographically, including four Arab states, India, and three Latin
American states, but no representative of the Scandinavian states
and inadequate representation of the Far East and the British
Commonwealth. It met from January 15 to February 7, 1951 and adopted
a new text of the Convention. It also recommended that the Economic
and Social Council should convene a special plenipotentiary
conference to complete the text.
The Committee’s Report (doc. A/AC.42/7) was considered by the
Economic and Social Council at its recent session and its
recommendations were not approved. Instead, the Economic and Social
Council adopted the following resolution by a vote of 10
(U.S.)–l–7:*
“The Economic and Social
Council,
“Having studied the report of the Ad Hoc Committee appointed by the General
Assembly at its fifth session to prepare a draft convention on
freedom of information and the observations of the Governments
thereon,
“Considering the existence of a wide
divergence of views on this subject,
“Having decided not to convene a
plenipotentiary conference,
“Transmits this decision to the General
Assembly together with the records of the discussion which took
place at the thirteenth session of the Council on the report of the
Committee on the Draft Convention on Freedom of Information.”
[Page 792]
Draft Convention on Freedom of Information
The United States position against the completion of the Freedom of
Information Convention is based on the probability that if the
Convention were to be completed at this time it would emerge in a
form unacceptable to the United States and detrimental to this
Government’s efforts to promote worldwide acceptance of our concept
of freedom of information. It would constitute a serious setback to
the promotion of freedom of information by the United Nations
whether or not the United States and a few like-minded countries
adhered to it, because it would place a United Nations stamp of
approval on a number of restrictive practices which, though current
in many countries, do not now enjoy international sanction.
The revised text of the Convention prepared by the special committee
of the General Assembly is an improvement over the original Geneva
text in several respects. Even as revised, however, the text is not
consistent with long established principles of freedom of speech and
of the press as understood in the United States.
Article 2, for example, would permit objectionable limitations on
freedom of expression, together with other restrictions which, while
perhaps not objectionable in principle, are so formulated as to lead
to the probability of their abuse by governments so inclined. Above
all, the method of so-called “specific enumeration” employed in this
Article is considered by this Government to be completely
impractical and an open invitation to the addition of still more
objectionable limitations, as demonstrated by Resolution A of the Committee. This resolution, calling
for a study of the feasibility of adding to the present set of
limitations certain still more objectionable restrictions indicates
the open-ended nature of the formulation adopted by the
Committee.
This method, because it aims at an exhaustive listing of permissible
limitations on freedom of expression, would compel every government
participating in any further consideration of the text to press for
the inclusion of any and all restrictions which are presently in
force as a matter of its domestic legislation or which it may deem
to be necessary for the future. It would lead to the drafting of an
agreement embodying the lowest common denominator of freedom of
information rather than an instrument capable of safeguarding and
promoting the maximum of freedom.
Other Articles of this text are also objectionable. Article 4, which
would permit the establishment of “a right of reply or a similar
corrective remedy”, sets forth no legal safeguards and does not
indicate whether the right would operate domestically or
internationally. Article 5, which incorporates a sort of model code
of ethics for journalists (unrelated to the code which the
Subcommission on Freedom of Information [Page 793] and of the Press has undertaken to prepare)
suggests the possibility of undesirable governmental pressure on
organizations of journalists.
Articles 6 and 7, which deal with economic problems affecting the
media of information, are drafted in a sweeping and arbitrary
manner. While many of these problems are indeed worthy of attention,
the language presently employed interposes no legal test of
reasonableness or of necessity. The only test prescribed is that
they are deemed necessary by the Contracting States which impose
them; no other Contracting State would have a right even to contest
their decisions.
Furthermore, while the Committee kept open the possibility of
including an article dealing with federal-state problems as proposed
by the United States Representative, it rejected another article
proposed by the United States which would have made clear the
non-self-executing nature of the proposed Convention. This
Government could not consider becoming party to any Convention of
this nature without such a provision.
Attention should also be drawn to the undesirability of attempting to
complete a detailed convention covering one of the major rights to
be included in the proposed Covenant on Human Rights in advance of
the completion of the Covenant. The problem is illustrated by
Article 10 of the Committee text, which provides that “in any case
of incompatibility” between the provisions of “the general
agreement” (i.e. the Covenant) and this Convention “the general
agreement shall prevail.” It seems to this Government that to
undertake obligations in a detailed agreement
which, by their express terms, may be nullified or altered by a
second, more general agreement (whose
provisions are not yet fixed) will almost certainly lead to
conflicts of interpretation.
Much as this Government would welcome a convention which could serve
as a means of advancing and safeguarding freedom of speech and
freedom of the press throughout the world, it cannot give its
support to the text under discussion, and does not deem it suitable
for consideration by a special conference. This Government cannot
agree with the assumption which seems to underlie much of the
present text, namely that the pressing task of the moment is to
define ways and means by which governments may curb the reporting of
news which they consider undesirable. Any proposal which might in
any way further restrict the availability of news and information to
the peoples of the world would, in the view of the United States
Government, be singularly inappropriate at this time when
governmental restrictions on the flow of news threaten increasingly
to deprive the public of the information which it needs to form
conclusions on the many vital problems affecting world peace. The
U.S. Delegation [Page 794] should
urge that priority be given instead to the completion of the Draft
Covenant on Human Rights and that the Assembly should take definite
action to table the Freedom of Information Convention until world
conditions are more conducive to the preparation of a more
affirmative instrument.
The Delegation should stress that the United States will not enter
into any agreement which might have the effect of impairing freedom
of speech and of the press as guaranteed under the Bill of Rights.
Moreover, even if the Convention were drafted in such a manner as to
preclude this effect in the United States (as indeed the present
text is, because the limitations are permissive in character) this
Government would nevertheless be opposed to its completion because
it would not want to see the press in any other country subjected to
some of the restrictions permitted by the Convention and not
prohibited by this basic law.
The United States Delegation should also point out that there is no
indication that the press in any free nation favors this Convention.
On the contrary, there is much recent evidence of the fact that the
press in several countries is currently engaged in fighting similar
restrictions which have been enacted, or are being considered for
enactment, in the laws of their countries. This Government does not
believe the prestige of the United Nations should be used to
sanction such restrictions.
In the event the Assembly decides to complete the Convention at this
session, the United States Delegation should be guided by the
detailed comments appearing in Annex B, of
the detailed comment paper contained in the Background Book on
Freedom of Information.
If, on the other hand, a majority favors the calling of a special
conference, it is suggested that the United States Delegation seek
as a minimum to have the terms of reference of the Conference
broadened to enable it to consider not only the Committee’s text,
but also any other text which might be submitted, together with
other items relating to the present state of freedom of
information.
If the Assembly decides to convene the special conference, the United
States Delegation should also suggest that the governments be
represented by persons drawn from the field of the press, radio and
films. It is also suggested that the list of governments eligible to
participate in the Conference include non-Members as well as
Members, as suggested in Annex C of the
Background Paper on this subject (SD/A/C.3/144) and be determined on the basis of the formula
employed in the case of the Geneva Conference on Freedom of
Information.
The United States Delegation should oppose any suggestion to call on
the Subcommission on Freedom of Information and of the Press to
prepare an agenda or any material for the proposed conference. It
may be anticipated, however, that an attempt will be made to include
[Page 795] on the agenda of the
conference the consideration of the Model Code of Ethics for
journalists which the Subcommission has undertaken to prepare. While
this Government has expressed its opposition to the draft Code as it
emerged from the last session of the Subcommission, it is believed
that there is no reasonable basis for opposing its inclusion on the
Conference’s agenda.
convention on the international transmission of
news and the right of correction
The “Newsgathering” Convention which was adopted by a vote of S3
(U.S.) to 6 (the Soviet bloc), with 13 abstentions at the second
part of the third session of the General Assembly was not opened for
signature because of the strong feeling on the part of a bare
majority that it should be coupled with the Freedom of Information
Convention. In Resolution 277 (III) A, the Assembly decided “that
the draft Convention on the International Transmission of News and
the Right of Correction shall not be open for signature until the
General Assembly has taken definite action on the draft Convention
on Freedom of Information”.
It should be noted that when the United States Delegation acquiesced
in the decision of the third session not to open for signature the
Newsgathering Convention (partly in order to secure support for
deferring the freedom of information text and partly in the
knowledge that very few delegations were prepared to sign it), it
insisted that the two texts were in no way organically related. The
Newsgathering Convention is completely self-contained and there was
never any intimation during its preparation that it would be linked
with another instrument. Furthermore, it is obvious by now that
there is no reasonable prospect of agreement on the freedom of
information text and there is no point in further delaying the
activation of the Newsgathering Convention.
Having reviewed the Newsgathering Convention in the light of present
circumstances, this Government has concluded that a strong attempt
should be made to open it for signature and acceptance without
further delay. With the increase in political tensions and the
growth of totalitarian regimes following the war, the operations of
foreign correspondents and news agencies have been increasingly
subjected to restrictions and harassment, with a resulting
curtailment in the international flow of news. This has reached a
peak in the Soviet states, as illustrated by the Oatis Case (see
separate position paper1), but the trend is not confined to those
states.
Since the Convention is intended to provide an international norm for
the treatment of foreign correspondents and an agreed limit on [Page 796] peacetime censorship of
news despatches, its activation at this time would be especially
desirable.
Moreover, it would establish the only feasible system for
“correcting” false or distorted reports which has proved acceptable
to a majority of governments and it would, therefore, meet a need
which has been loudly proclaimed by those states which have not yet
managed to develop strong news agencies.
An analysis of the Convention and of the position taken by the
respective delegations during its consideration will be found in the
Background Book on Freedom of Information.
other freedom of information issues
In the course of the debate on this item the United States Delegation
should refer to the suggestions advanced by the United States
Representative at the recent session of the Economic and Social
Council for affirmative action which might be taken by the United
Nations to promote freedom of information. These suggestions
indicate that there are many urgent problems in this field which
have largely been ignored because so much attention has been
centered on the freedom of information convention. They will be
found in Press Release #1262, which is included in the Background
Book on Freedom of Information.
Annex A
Draft Resolution No. 1
(convention on freedom of information)
The General Assembly
Believing that freedom of information
must be protected by every possible means (and that a special
convention on this subject would be desirable);
Convinced that the present divergence of
views renders impossible the drafting of an acceptable
convention on freedom of information at this time;
(Notes with appreciation the Report of the
Committee on the draft Convention on Freedom of
Information;)
Decides to postpone indefinitely further
consideration of this Convention; and
(Recommends to the Economic and Social
Council that it review the situation at a future session and, if
it finds that prospects for agreement on a constructive text
have improved, that it establish Appropriate machinery for
completing the Convention.)
Note: Clauses in parentheses to be
included only if necessary to secure adoption of a resolution
along these lines.
[Page 797]
Draft Resolution No. 2
(convention on the international
transmission of news and the right of correction)
The General Assembly,
Convinced that the widest dissemination
of news is indispensable to the maintenance of peace and to
economic and social progress;
Believing that, in order to promote the
greatest international flow of news, it is highly desirable to
establish an international standard for the treatment of foreign
correspondents and their dispatches and an international right
of correction;
Decides to open for signature the
Convention on the International Transmission of News and the
Right of Correction.
Annex B
Detailed Comments on Freedom of Information
Convention
Note: Reference to the “present text” are
to the text as adopted by the special committee of the General
Assembly.
Preamble: The United States Delegation
should support the Preamble as presently worded and should
oppose any suggestions for expanding it.
Article 1: The present text of Article 1
embodies virtually all of the changes in the original Geneva
text which were suggested by the United States and, as now
worded, constitutes a forthright and adequate statement of the
freedom to be guaranteed.
It should be noted that the present text is ambiguous in
referring to “freedom without
governmental interference” which might be interpreted as meaning
that this freedom is to be secured against private as well as governmental
interference. The American concept of free speech and a free
press has, in general, involved only the minimum of governmental
action necessary to prevent private infringements on the
enjoyment of this freedom (e.g. anti-trust and libel
legislation). Previous United States attempts to clarify this
point by substituting “freedom from
governmental interference” for the present language have been
unsuccessful. It is suggested accordingly, that the United
States Delegation should not seek to revise this language, but
that if a question is raised, it state for the record that this
Government interprets this phrase to mean that contracting
states would be obligated to secure this freedom from governmental interference.
Article 2: Article 2 constitutes the most
serious deterrent to United States support for this Convention.
In accordance with this Government’s policy in respect to the
Covenant on Human Rights, the United [Page 798] States has strongly opposed the attempt to
enumerate in specific terms the restrictions which governments
may legitimately impose on freedom of information. The United
States had advocated instead a general
limitation provision delimiting the boundaries of governmental
power in this sphere.
The United States position rests largely on two grounds: (1) The
debate to date on this matter has shown clearly that adequately
to protect governmental powers in this area, even in terms of
existing valid laws in the countries where freedom of speech and
press exists, would require the listing of even more limitations than are contained in
the present text. Even then, there would be no assurance that
all essential governmental authority had been safeguarded in
terms of the future. (2) Moreover, to attempt to list specific
limitations which are considered to be necessary and desirable
by the various governments constituting the majority on this
issue inevitably leads to undesirable compromises of the
“log-rolling” variety, with the result that undesirable
limitations wanted by a minority of delegations are supported by
a majority (See text adopted by Third Committee of the General
Assembly). The result is a statement of the lowest common
denominator of freedom prevailing among a majority of
States.
Although the present text of Article 2 does not contain the most
objectionable provisions of the original Geneva text, namely
paragraph (j) concerning the
dissemination of false or distorted reports, it retains other
undesirable restrictions. These include “expressions which … are
dangerous for youth and intended for them” and “legal
obligations … including disclosure of information received in
confidence in a professional or official
capacity”. The latter clause refers to Official Secrets Acts in
force in many countries (including the United Kingdom) under
which public officials may be prosecuted for disclosing matters
of governmental policy even if they are not officially
classified or otherwise prejudicial to national security.
There is every reason to believe that if this text were used as a
basis of discussion by a special conference it would be expanded
to include still other permissive restrictions. The special
committee itself recommended study of the feasibility of
including such other limitations as “matters likely to injure
the feelings of the nationals of the State”, and “false or
distorted reports which undermine friendly relations between
peoples or States”. (Resolution A of the Committee’s
Report).
The third paragraph of Article 14 of the Draft Covenant (the
freedom of information Article), embodies essentially the
formulation which the United States has consistently advocated
for this Article. The Article reads:
article 14
- “1. Everyone shall have the right to hold opinions
without interference.
- “2. Everyone shall have the right to freedom of
expression: this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of
his choice.
- “3. The right to seek, receive and
impart information and ideas carries with it special
duties and responsibilities and may therefore be
subject to certain penalties, liabilities and
restrictions, but these shall be such only as are
provided by law and are necessary for the protection
of national security, public order, safety, health
or morals, or of the rights, freedoms or reputations
of others.” (UN
Doc. E/1681)
The United States Delegation should support the substitution of
the formulation employed in paragraph 3 above for Article 2 of
the present text, but should modify it slightly for the purpose
of this Convention, as follows:
The exercise of the freedoms referred to in Article 1 shall
be subject only to such restrictions as are provided by law
and are necessary for the protection of national security;
for the prevention of disorder; for the protection of public
safety, health or morals, or the rights, freedoms or
reputations of others.
In the event the above proposal is rejected, the United States
Representative should move the deletion of the following clauses
from the text of Article 2 as adopted by the special
committee:
Paragraph (d) “which are dangerous for
youth and intended for them”
Paragraph (h) “including disclosure of
information received in confidence in a professional or
official capacity”
If these clauses are deleted and the article is not otherwise
altered, the United States Delegation should abstain on the
final vote on this Article, but vote in favor of the Convention
as a whole with such an amended article, provided the remainder
of the Convention is satisfactory.
Article 3: The United States Delegation
should support this Article which was adopted by the special
committee on the proposal of the United States. While not
necessary, the inclusion of this Article is desirable to make it
clear that this Convention could not so be interpreted as to
limit any freedom now guaranteed by the Constitution or to
restrict any rights in this field recognized under existing
international treaties.
Article 4: The United States Delegation
should propose the deletion of this article on the ground that:
(a) the Convention in no way limits
the right of any Contracting State to establish a “right of
reply”; (b) the present language is
hopelessly vague since it does not indicate whether the right of
reply would operate nationally or internationally, voluntarily
or compulsorily, etc., and (c) an
international right of correction is provided by the Convention
on the International Transmission of News and the Right of
Correction.
[Page 800]
Article 5: It should be noted that the
Committee’s revision of this article is a considerable
improvement over the Geneva Conference text. The draft adopted
by the Conference implied that information personnel have a
number of responsibilities beyond those of straight reporting,
including that of facilitating the solution of economic, social,
and humanitarian problems, promoting respect for human rights,
etc. The Committee’s revision on the other hand, accords with
the conviction of this Government that the only primary
obligation of information personnel is to seek the truth and
report the facts, and that the other desirable objectives
mentioned in the Conference draft will result from the honest
performance of this primary obligation. The maintenance of this
modification is essential since the Soviet objective in the
field of freedom of information is to secure recognition of the
thesis that organs of information have a duty to carry out
affirmative “tasks” assigned to them by the government, such as,
promoting peace and security, combating fascism and racial
hatred.
Despite these improvements, however, this article still suggests
the possibility of governmental pressure on organizations of
journalists. It is believed that some governments would
interpret the intent of this article, namely that they should
“encourage” the establishment of such organizations, as
justifying such practices as requiring journalists to belong to
approved organizations before they could engage in the
profession, issuing and withholding identity cards, etc.
Moreover, the Sub-Commission is now preparing another Model Code
of Ethics for journalists and there is no need to include one in
this Convention.
For these reasons, the United States Delegation should move the
deletion of this article.
Articles 6 and 7: The United States
Delegation should urge the deletion of these Articles on the
ground that the remainder of the Convention would in no way
prevent a Contracting State from taking, on a reasonable basis,
the measures set forth therein. Experience at the Conference on
Freedom of Information, in the Third Committee of the General
Assembly and in the special committee has shown that many
governments look upon these articles as a means of incorporating
still more restrictive provisions.
If the articles are retained, however, they should be modified so
as to make them less sweeping and arbitrary. The words “which it
deems” in Article 6, for example, should be deleted in order to
make it possible for other Contracting States to contest the
necessity for measures taken pursuant to this article which may
appear to discriminate against them. As the article now stands
the state imposing the restrictions for alleged balance of
payments reasons could not be questioned as to the necessity for
its action.
The same change should be made in Article 7. In addition, the
words “until such time as they are fully developed” in paragraph
(a) should [Page 801] be deleted since it may be assumed that
such enterprises are never fully developed unless they enjoy a
complete monopoly.
Article 8: The United States Delegation
should support Article 8 in its present form. While the first
part of the article, relating to the right to edit newspapers
and periodicals, could be used to hamper the publication of
foreign-owned newspapers or periodicals, it is a fact that many
states devoted to freedom of the press (e.g. The Scandinavian
States) require such a provision.
The last clause, relating to the right to operate
telecommunication facilities, is required by the United States,
where aliens are prohibited from owning or operating radio
stations.
Article 9: The United States Delegation
should support this article in its present form. The present
text of this article, providing that a state may refuse entry to
any particular person, is identical with the first part of
paragraph 7 of Article XII of the “Newsgathering Convention”.
While the United States strongly opposed this provision in the
Newsgathering text and finally succeeded in adding a proviso
that it could not be applied to refuse entry to a correspondent
as such, it is not considered as objectionable in the context of
the present convention. Whereas the Newsgathering agreement
related only to a very limited and clearly defined group,
foreign correspondents, the present agreement affects all
nationals of all Contracting States. Moreover, this provision
accords with the immigration practices of most governments and
will receive strong majority approval. It is not inconsistent
with United States laws and regulations even though the latter
operate in terms of defined classes of excludable aliens.
The second paragraph is designed to take cognizance of the rather
unique immigration practices of this country which permit
certain normally excludable aliens to enter conditionally and is
particularly important in connection with persons coming to
observe or cover the proceedings of the United Nations. An
identical provision was accepted as Article IV of the
“Newsgathering Convention”.
Article 10: This article points up the
difficulty of attempting to draft a specific convention dealing
with one of the rights covered by the Draft Covenant. Under this
provision, Contracting States would agree in
advance that in any case of conflict between this
detailed Convention and the much more general language of
Article 14 of the Covenant (which may be modified in the course
of further consideration), the Covenant would prevail!
If the Covenant is to have precedence, as it probably should,
some such provision is necessary in this Convention. A
suggestion which reduces the difficulty somewhat, and which
should be proposed if there is an opportunity, would involve the
substitution of the words “but in any case where this is not
possible” for the present language which reads “but in any case
of incompatibility”.
[Page 802]
Article 11: The United States Delegation
should support the present text of this article.
Article 12: Article 12 of the present
text provides for the compulsory jurisdiction of the
International Court of Justice to settle disputes arising under
the Convention if no other mode of settlement is agreed
upon.
The United States Delegation should urge that no article dealing
with the settlement of disputes should be included in the text
at the present time. It should point out that the subject matter
of this Convention exactly duplicates that of Article 14 (on
freedom of information) of the draft International Covenant on
Human Rights. Hence it is important that contracting states not
be subject to two different modes of settling disputes arising
under the same international obligations.
The United States Delegation should suggest that this article be
held in abeyance until the corresponding provisions of the Draft
Covenant have been agreed upon. At that time the provisions of
the Covenant, if suitable, could be incorporated in the
Convention by agreement among the Contracting States. This
proposal should not be pressed if a majority strongly favors the
present provision.
Articles 13–15: The United States
Delegation should support these articles in their present
form.
Article 16: The formulation of an
acceptable colonial article is made difficult by the necessity
of having to reconcile two widely divergent points of view. The
colonial powers have pressed for a formulation which recognizes
the fact that, for constitutional reasons or because certain
non-self-governing territories have achieved varying degrees of
self-government, the prior consent of the governing authorities
of such territories must be obtained in some cases before the
Convention can be extended to those territories.
On the other hand, the non-colonial powers, especially the USSR
group of states with strong support from the Middle East, the
Far East and some Latin American States, have urged a
formulation which would make these instruments applicable
automatically to non-self-governing territories of contracting
states. The present text, sponsored by the Arab representatives
on the special committee, would make the Convention applicable
automatically to the non-self-governing territories of
contracting states.
The United States position must take into account the customary
practice of this Government which has always extended
instruments of this type automatically to territories for the
international relations of which it is responsible, without
prior consultation with the governing authorities of such
territories.
Since the Article 16 of the present text accords with United
States practice and will certainly be supported by a large
majority, the United [Page 803]
States Delegation should not oppose it, even though it is
objectionable to the United Kingdom and other colonial
powers.
Articles 17–19: The United States
Delegation should support these articles as they stand.
New Articles: If at this stage the
remainder of the Draft Convention has been modified to bring it
into substantial conformity with the views of this Government,
the United States Delegation should propose the inclusion of
federal state and non-self-executing articles. Their inclusion
is an essential prerequisite to United States support for an
otherwise acceptable text.
Federal State Article: For a federal
state article, the United States Delegation should propose an
article along the lines proposed for the Covenant on Human
Rights in the position paper on the Covenant.
The incorporation of a federal state article in this Convention
is essential to take into account the situation in which the
United States and other Federal States find themselves in
bringing a Convention of this kind into operation domestically.
This Convention deals essentially with the non-exercise of
certain governmental powers (i.e. states shall secure freedom
from governmental interference in the exercise of the right to
freedom of information). In such matters as freedom of speech
and press, censorship of films and books, etc., state
governments can violate the Convention as well as the Federal
Government. In short, while it is clear that the Federal
Government has jurisdiction in respect of the inter-state and
international aspects of the subject matter of this Convention,
and has control of radio broadcasting, the power to violate some
provisions of this Convention is as much state as it is federal.
The article suggested is an adaptation of Article 19 (7) of the
Constitution of the International Labor Organization as amended
in 1946 which has received wide acceptance.
It may be anticipated that the new article suggested will be
opposed by a number of delegations, principally on the ground
that it constitutes a wide “loophole or escape clause” for
federal states. A few delegations, not understanding the
operations of a federal state, may propose that no such article
be included. It has proved difficult in the course of numerous
consultations regarding this issue to convince such delegations
that this article, far from constituting an escape clause, is
necessary to clarify the precise situation of the United States
Federal Government, the legislative and executive branches of
which cannot determine with finality the exact limits of federal
vs. state reponsibilities in this field. The boundaries between
federal and state action are constantly being reviewed by court
decision and it is only by reference to these court decisions
that the particular responsibilities of the state and federal
jurisdictions can be determined with reference to a particular
set of facts, and at a given time.
[Page 804]
At its last session the General Assembly when considering the
Covenant on Human Rights agreed in principle on the need to
consider a federal-state article. The special committee of the
Assembly which prepared the revised text of this Convention did
not consider a federal-state article, having decided to await
the action of the Human Rights Commission with regard to the
Covenant. The Human Rights Commission at its last session did
not have time to review the matter.
Non-Self-Executing-Article
“Where not already provided for by existing legislative or
other measures, each Contracting State undertakes to take
the necessary steps, in accordance with its constitutional
processes and with the provisions of this Convention, to
adopt such legislative or other measures as may be necessary
to give effect to the freedoms recognized in this
Convention.”
A similar provision has already been incorporated by the
Commission on Human Rights into the Draft Covenant, which should
facilitate its acceptance for this Convention.
Since in the United States and in many other countries the
provisions of treaties which they ratify come into force
automatically, a question would immediately arise as to whether
the precise words of the Convention could be enforced as
domestic law (and be interpreted by the courts in conjunction
with existing laws) or whether its provisions may not be so
general in character that more specific legislation is needed to
enforce the Convention.
The provision suggested above is intended to make it clear beyond
doubt that in so far as there are no existing legislative or
other measures giving effect to the terms of Article 1 of the
Convention, the United States would undertake to adopt such
measures in accordance with its constitutional processes. Thus,
since the treaty itself would stipulate that it would become
operative only through legislative or other measures already in
existence, or which are subsequently adopted, to bring its
provisions into effect as a matter of domestic law, the language
of Article 1 referred to could not be considered automatically
to become the “supreme law of the land” in the United
States.
Under this provision, the Convention would still become binding
internationally upon the deposit of the required number of
ratifications or accessions and at that moment Contracting
States will assume the obligation to adopt legislative or other
measures in accordance with their constitutional processes to
give effect as a matter of domestic law to the terms of the
Convention—to the extent that the rights set forth in the
Convention are not already provided by such measures.
It should be noted that the Special Committee of the Assembly
rejected by a large majority the proposal of the United States
Representative [Page 805] to
incorporate this article. In the course of a very brief and
confused debate several representatives charged that this
article would operate to enable this Government to evade its
obligation. They contended that the United States should, if
necessary, act to bring its legislation into complete conformity
with the Convention simultaneously with its acceptance of the
instrument.
Resolution A of the Special Committee
In a separate resolution the special committee requested the
Secretary General to prepare a report on the legal problems
raised by several amendments which had been rejected in the
course of the Committee’s debate. The objective of this
resolution is to seek suitable language expressing the intent of
the rejected amendments in order to see if they could at a later
stage be incorporated in the Convention.
The amendments involve the addition to Article 2 of the following
clauses:
- (a)
- “matters likely to injure the feelings of the
nationals of the state”
- (b)
- “false or distorted reports which undermine friendly
relations between peoples or States”
- (c)
- “reports regarding racial, national or religious
discrimination”.
The United States Delegation should oppose any further
consideration of these proposals. Although these proposals were
sponsored in the Committee by non-Soviet representatives, they
are proposals which have always in the past been sponsored by
the Soviet states. Based on a totalitarian conception of press
control, they could only be enforced by state censorship and
control of the media of information. The objective which the
sponsors of these proposals seek should be the subject of
long-range education, not repressive legislation.
Annex C
In the event the General Assembly decides to convene a special
conference to complete the Draft Convention on Freedom of
Information, the question will arise as to which countries
should be invited to participate. Following the precedent of the
original Conference on Freedom of Information and of recent
conventions sponsored by the United Nations, it is certain that
invitations would be addressed to certain non-member states.
In order to counter Soviet arguments in favor of the
participation of Outer Mongolia and Communist China and against
the participation of Spain, etc., it would be desirable to
utilize a formula which has been used by the United Nations in
similar circumstances and [Page 806] which is acceptable to the United States.
Such a formula is contained in Resolution 368 (IV) of the
General Assembly, which reads:
“Invitations To Be Addressed
to Non-Member States To Become Parties to the Convention on
the Prevention and Punishment of the Crime of
Genocide”
“The General
Assembly,
“Considering that article XI of the
Convention on the Prevention and Punishment of the Crime of
Genocide, approved by General Assembly resolution 260 (III) A of
9 December 1948, provides, inter alia,
that the Convention shall be open to signature and ratification
or to accession on behalf of any non-member State to which an
invitation has been addressed by the General Assembly,
“Considering that it is desirable to send
invitations to those non-member States which, by their
participation in activities related to the United Nations, have
expressed a desire to advance international co-operation,
“1. Decides to request the
Secretary-General to dispatch the invitations above-mentioned to
each non-member State which is or hereafter becomes an active
member of one or more of the specialized agencies of the United
Nations, or which is or hereafter becomes a Party to the Statute
of the International Court of Justice;
“2. Remains convinced of the necessity of
inviting Members of the United Nations which have not yet done
so to sign or ratify the Convention on the Prevention and
Punishment of the Crime of Genocide as soon as possible.”
266th plenary meeting, 3 December 1949.
It is suggested that the United States Delegation seek support
for this formula as the one to be employed for any conference
which may be called on freedom of information.
