Foreign Relations of the United States, 1950, The United Nations; The Western Hemisphere, Volume II

IO Files: SD/A/C.3/138

Position Paper Prepared in the Department of State

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[Washington, September 2, 1950.]

Draft Convention on Freedom of Information

the problem

What position should the United States Delegation take on the question of completing the Draft Convention on Freedom of Information at this session of the General Assembly?

recommendations

(1) The Delegation should support, and if necessary initiate, a proposal to defer indefinitely the completion of the Draft Convention on Freedom of Information on the ground that Article 14 of the Draft International Covenant on Human Rights contains the essential principles of Freedom of Information in a form more likely to command widespread support at this time;

(2) If, on the basis of informal consultations, the above position does not appear to enjoy substantial support, the Delegation should support, and if necessary initiate, a proposal to postpone further consideration of this Convention until the Assembly has completed its consideration of the International Convenant on Human Rights on the ground that the nature of any specific convention in this field will depend largely on the freedom of information provisions of the Covenant;

(3) If these proposals fail of approval and the Third Committee decides to complete the Convention at this session, the Delegation should make every effort, if possible with the concurrence of the United Kingdom which originally sponsored this Convention, to secure approval of the suggested modifications in the present text which are described as “essential” in the Background Paper on this subject¹ and should support the Assembly’s draft only if these modifications are incorporated in a satisfactory form; and

(4) The Delegation should maintain this Government’s position, as set forth in the previous sessions of the Assembly, that this Draft Convention is in no way directly related to the Draft Convention on the International Transmission of News and the Right of Correction and that the latter should be opened for signature without further delay.

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This Draft Convention was adopted by the United Nations Conference on Freedom of Information (1948) by a large majority, with only the Soviet bloc in opposition. The United States Delegation abstained, however, because of doubts as to the scope and meaning of several articles and because it includes unacceptable provisions concerning the right of governments to exercise wide control over freedom of information and of the press.²

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 is of very wide scope. Whereas the “Newsgathering Convention” merely facilitates the work of foreign correspondents, as a limited group, the Draft Convention on Freedom of Information provides that contracting states shall secure to all of their own nationals and to the nationals of other contracting states who are in their territories certain broad rights to freedom of information, such as 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 its 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, the Third Committee considered this 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 that it be placed on the agenda of the Fourth Session. The inconclusive decisions taken in respect to the first five articles (which are not binding on the Fifth Session) resulted in materially worsening the text from the United States point of view.³

At its Fourth Session, the General Assembly rejected proposals to complete the Convention.⁴ It recommended instead that the Commission on Human Rights “include adequate provisions on freedom of information in the draft International Covenant on Human Rights” and decided “to postpone further action on the Draft Convention on Freedom of Information to the Fifth Regular Session of the General Assembly and pending receipt of the Draft International Covenant on Human Rights or a progress report thereon.” (Resolution 313 (IV)).

At its Sixth Session the Commission on Human Rights adopted a draft of Article 14 for the draft International Covenant on Human Rights Which includes a statement of the principles of freedom of information in a form basically satisfactory to this Government.⁵

The decision to defer indefinitely the completion of the Convention is based on the strong 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 world-wide acceptance of our concept of freedom of information. A Convention on Freedom of Information embodying ambiguities and restrictive provisions, such as those presently incorporated in the Conference text and others suggested during the Third Committee’s inconclusive debate, 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. 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. It would also threaten the successful operation of the “Newsgathering Convention” since a substantial number of countries have indicated that they would refuse to sign the “Newsgathering Convention” on the ground that the Freedom of Information Convention covers the same ground, while others have suggested that they might sign both and contend subsequently that the more restrictive provisions of the Freedom of Information Convention would constitute a limitation on the provisions of the “Newsgathering Convention”.⁶

In taking this position, the United States Delegation will be confronted with a difficult negotiating situation since the Freedom of Information Convention appears to enjoy considerable support among a substantial group of delegations (notably France, India and several of the Middle East and Latin American delegations) which are anxious to secure international recognition of their concept of the “responsibility of the Press”. It will be alleged that, having secured the adoption of the “Newsgathering Convention” (which they consider to be to the advantage of the United States), this Government is now attempting to kill the Freedom of Information Convention which more adequately meets their needs.

In answering such criticism, it should be stressed that extensive negotiations with other delegations and consultations with many governments have demonstrated that the provisions on freedom of information now included in the Draft International Covenant represent the maximum degree of international agreement now obtainable on freedom of information principles which are consistent with the traditional democratic concept of this freedom. This Government is convinced that the completion of the Draft Freedom of Information Convention at this time would only serve to grant a measure of international respectability to restrictive governmental practices which, although considered necessary by a number of governments, should not be embodied in an international convention.

This Government has become increasingly doubtful, moreover, of the desirability of attempting to include in this single convention a wide range of diverse and specialized matters. This convention would cover not only the basic civil right of freedom of expression, but also such matters as the operation of news agencies and the conduct of journalists, governmental authority to protect domestic information enterprises, economic and commercial barriers to international trade in informational materials, etc. The Draft Convention overlaps the Draft Covenant, the “Newsgathering Convention” and the UNESCO-sponsored agreements to facilitate the international circulation of educational, scientific and cultural materials.

It should be noted that in voting to postpone further consideration of this Convention at the Third Session of the General Assembly, the United States Delegation stated that this Government was not “maneuvering to kill the Convention” but was prepared to consider the draft at the Fourth Session and to work with delegations desirous of formulating a constructive agreement. It should be made clear that in proposing to defer indefinitely the completion of this Convention, this Government is motivated solely by the conviction (based on very extensive subsequent consultations) that a generally acceptable and constructive convention is unobtainable at this time.

If the proposal to defer the convention indefinitely does not succeed, the United States Delegation should then press for a postponement until the General Assembly has adopted a Draft International Covenant on Human Rights. A specific Convention on Freedom of Information must, of necessity, be based on the general provisions in this field incorporated in the Draft Covenant, and until those provisions have been finally adopted, it would not be feasible to complete the Convention.

If the Third Committee desires, nevertheless, to complete this Convention at this session, the United States Delegation should seek to modify the text so as to include the essential changes set forth in the Background Paper on this subject. Unless these changes (e.g. the elimination of several restrictive provisions, the incorporation of “federal-state” and “non-self-executing” clauses, etc.) are incorporated in a satisfactory form, the Convention would be completely unacceptable to the United States.

It should be noted that repeated attempts have been made by Lebanon, France, India and Mexico since the Third Session to keep alive the Freedom of Information Convention. They have sponsored resolutions in the Assembly (Fourth Session), the Economic and Social Council (10th Session), the Subcommission on Freedom of Information and of the Press (Fourth Session) and the Commission on Human Rights (Sixth Session) which in general urged the completion of the Convention at the next session of the General Assembly. Every such resolution has been defeated, some by a very narrow margin, except in the case of the Sixth Session of the Human Rights Commission. In that case, however, the Economic and Social Council at its recent 11th Session rejected the recommendation and thereby prevented its coming before the Assembly.

It is anticipated that those delegations which are anxious to complete the Freedom of Information Convention will again take the position that the “Newsgathering Convention” can not be opened for signature until this Convention is completed by the Assembly. The United States Delegation should maintain this Government’s position, as stated in the last two sessions of the Assembly, that the “Newsgathering Convention” is in no way dependent upon the proposed Freedom of Information Convention and that this Government can see no justification in delaying further the decision to open it for signature. The Delegation should state that the United States is prepared to sign the “Newsgathering Convention” but should not submit a proposal to open it for signature unless prior consultations indicate the likelihood of majority support.

1. Not found in Department of State files.
2. The United Nations Conference on Freedom of Information met at Geneva, March 23–April 21, 1948 (see Foreign Relations, 1948, vol. i, pp. 307 ff.) Its major achievement was the drafting of three proposed conventions: (1) the draft convention on the gathering and international transmission of news, proposed by the United States; (2) the draft convention concerning the institution of an international right of correction, sponsored by France and intended to establish a procedure under which governments may obtain publicity for official corrections of allegedly false news reports which affect their international relations; and (3) the draft convention on freedom of information, submitted by the United Kingdom and intended to provide a guarantee to the nationals of contracting states of freedom of expression as well as freedom to seek and receive information from all sources. Together with about 40 resolutions, these three conventions were incorporated into a Final Act of the Conference. For the text of the Final Act, see United Nations Doc. E/CONF. 6/79 (found in depository libraries of the United Nations), April 22, 1948. For the report of the United States Delegation, see Department of State Publication 3150, 1948.
3. The second part of the third session of the General Assembly was held at New York, April 5–May 18, 1949. The decision to defer further consideration of the draft convention until the fourth session of the General Assembly (scheduled to meet in September of the same year) reflected the serious disagreement within the Third Committee over the proposed addition of a number of restrictive provisions to the original Geneva text. These would have greatly expanded the sphere of governmental controls over freedom of information and led the United States Delegation and others to fear that the convention, “which had been intended to guarantee freedom of information, was actually being transformed into a convention to legitimize restrictive governmental controls over this freedom.” (Position Paper drafted for the U.S. Delegation to the 10th session of the Economic and Social Council, Doc. SD/E/226 [377?] January 3, 1950, IO Files)
4. The United States view at the beginning of the fourth session was that the draft convention on freedom of information was completely unsatisfactory and that change was absolutely essential to make it acceptable to this Government. Further, United States advisers felt that the Commission on Human Rights “would be a more advantageous battleground” than the General Assembly. (U.S. Delegation Minutes, September 19, 1949, Doc. US/A/M (Chr)/95, IO Files, not printed) Accordingly, the United States Delegation took the lead at the outset of the fourth session in sponsoring a proposal to postpone further action on the convention until the Commission on Human Rights had incorporated provisions on freedom of information in the draft first international covenant on human rights. This United States effort was successful, and the proposal for postponement pending further work on the draft human rights covenant by the Commission on Human Rights and by the fifth session of the General Assembly was incorporated into Resolution 313 (IV), October 20, 1949. For text, see United Nations, Official Records of the General Assembly, Fourth Session, Resolutions, p. 32.

5. For an analysis with text of the draft human rights covenant, revised by the Commission on Human Rights at its March–May 1950 session, see Department of State Bulletin, June 12, 1950, pp. 945 ff. Article 14 reads:

   “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.”

6. The so-called Newsgathering Convention actually consisted of two conventions, originally in 1948 submitted separately by the United States and France. The United States-sponsored convention was incorporated into articles 2–8, relating to the international transmission of news, and the French-sponsored convention relating to the right of correction was included in articles 9–11. There was a widespread feeling on the part of many states that the Convention as a whole conferred important benefits on the larger and established news agencies and their correspondents but did not adequately protect governments against “irresponsible reporting.” Thus the General Assembly had decided at the second part of its third session (April–May 1949) not to open the Newsgathering Convention for signature until definite action had been taken on the Freedom of Information convention. Many delegations insisted that the two conventions were “part of one whole” and that they must stand (or fall) together. Other delegations insisted that it was necessary to establish the freedom of information convention first in order to define a “moral and political context” for the purely technical newsgathering convention. The General Assembly refused to alter this decision at its fourth session in September–December 1949, and still in 1950 the convention had not been opened for signature.

   For the text of the Newsgathering Convention, see Department of State Bulletin, May 29, 1949, pp. 682 ff. For an exhaustive analysis of the Convention and the issues raised, see article by Samuel De Palma entitled “Freedom of the Press—An International Issue” in ibid., November 14, 1949, pp. 724 ff. Mr. De Palma was the chief United States adviser to the successive United States Delegations on this matter.