Foreign Relations of the United States, 1951, The United Nations; The Western Hemisphere, Volume II

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 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 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.”

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 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 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 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 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.

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 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.

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 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”.

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 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.

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 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 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.

1. 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.]
1. See Department of State Instruction, undated, p. 806.