Department of State Instruction to the United States Delegation to the Sixth Regular Session of the General Assembly
Freedom of Information
(Agenda Item 11—Report of the Economic and Social Council)
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.
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.
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.
- The vote in the Social Committee, more significant as a test, was 10 for (Belgium, Canada, China, Czechoslovakia, Peru, Poland, Sweden, USSR, UK, US), 7 against (Chile, France, India, Iran, Mexico, Philippines, Uruguay), Pakistan being absent. [Footnote in the source text.]↩
- See Department of State Instruction, undated, p. 806.↩