Freedom of information, materials conditions, and the ICCPR’s stylistic choice
By Wanshu Cong
Published on 15 May 2023
There is a growing interest in the international legal scholarship to study the materiality of international law. Termed as ‘new materialism’, this recent material (re)turn has animated inquiries which pay attention to concrete and specific objects. These studies consider how certain objects are governed directly or indirectly by or implicated in international law (for an example of this approach, see the volume International Law’s Object edited by Jessie Hohmann and Daniel Joyce). These inquiries also ask how objects shape and reconstruct international law (see for example, the recent AJIL Unbound symposium, Infrastructuring International Law convened by Benedict Kingsbury), and map international law in the everyday life and experience of actors who operationalize, practice, or resist international law (see for example, Luis Eslava’s ethnographic work Local Space, Global Life). From this appreciation or rediscovery of international law’s materiality emerges a whole new sense and sensibility about authority, power, and what is meant by “international” – much more physical and embodied than what the traditional text-based approaches would allow for. And all of a sudden, international law is more than just “the water that we, as international lawyers, swim in”, as Andrea Bianchi poetically puts it, but literally present in everywhere and everything.
While much needed and long overdue, this recent interest in international law’s materiality also raises a question: what has prevented us from seeing international law’s materiality in the first place? Of course, not all fields of international law are blind to things. For instance, international telecommunications law deals with such things as fibres, cables and satellites, and cases at the WTO are typically short titled after the goods in dispute like beef, shrimp, and rare earths. But certain fields seem to be oblivious to the material world. For example, there are powerful feminist and postcolonial critiques, launched by scholars such as Ratna Kapur and Upendra Baxi, about the idea of “human” and “freedom” underlying the international human rights regime being devoid of material reality.
This short piece will not offer a full-fledged theory about how and why international human rights law has not paid enough attention to actual things but discusses one example, namely freedom of information, which may shed some light on this question. Freedom of information is typically understood as encompassing freedom of opinion and expression and as closely related to other political rights. In the immediate aftermath of the World War II, freedom of information appeared among the top agenda items of the UN. The UN General Assembly in its first session in 1946 passed Resolution 59(I) which described freedom of information as ‘the right to gather, transmit and publish news anywhere and everywhere without fetters’ and saw it ‘the touchstone of all the freedom to which the United Nations is consecrated’ and ‘an essential factor in any serious effort to promote the peace and progress of the world.’ Soon after, a conference was held in Geneva from March 23 to April 21 1948, to prepare a convention on freedom of information. Three draft conventions and 43 resolutions were passed and sent back to the UN for further commenting. These documents contained not only statements upholding the free flow of information and freedom of the press in abstract, but also listed a variety of detailed administrative and logistic measures to be taken by states to facilitate the gathering and international transmission of information. These measures dealt a lot with actual things, including for example certain paperwork such as travel and identification documents to be issued to journalists and means of transportation and communication facilities to ensure journalists’ access to news sources and capacity to transmit news. While asking states to afford these things, the conference also called on states to ensure non-discrimination of national and foreign journalists in the treatment and access, to provide favourable taxes and telecommunication rates. The conference also suggested states to create of multiple unofficial news organizations.
Furthermore, the Geneva conference produced an article on freedom of opinion and expression for the draft Covenant on Human Rights (then Article 17 of the draft Covenant). What stood out from this draft article is not just a much longer list of limitations to freedom of expression than the final text of Article 19 of the 1966 International Covenant on Civil and Political Rights (ICCPR), but a paragraph (Paragraph 3), which read: ‘Measures shall be taken to promote the freedom of information through the elimination of political, economic, technical and other obstacles which are likely to hinder the free flow of information.’ The conference also acknowledged the different capacity of states in producing and transmitting information and news materials and recommended states to ‘take steps to foster the interchange of newsreels in proportion to each nation’s productive capacity’ and to ‘study the disparities in the development of the production enterprises in the different countries.’ Monopolistic practices ‘in all their forms’ were to be eliminated. (‘In all forms’, as the conference report put it, may be interpreted as covering both public and private monopolies.) All of these pertained to the question what freedom of information means materially and how to realize the free flow of information in practice. What became clear was the indispensability of a whole range of legal, logistic, and technological arrangements implemented by each state to enable the movement of things and people within and cross borders.
Why did the Geneva conference pay so much attention to material conditions of information flows? A quick look at the conference’s participant list gives a clue. In addition to delegations from over 50 states, the conference was also attended by the International Telecommunication Union (ITU), the International Labour Office, and the UNESCO, as well as non-governmental organizations such as the International Organization of Journalists. The participation of these organizations likely made the discussion at the conference much more ‘down to earth’ than, for example, the discussion at the UN Human Rights Commission on the formulation of rights under the ICCPR.
In the following years after the Geneva convention, the project of having a single, holistic convention on freedom of information was resumed several times at the UN, but ultimately did not come to fruition. It is then in the drafting of the ICCPR at the UN Human Rights Commission and later the UN General Assembly Third Committee that freedom of information was to be discussed. Delegates at the UN Human Rights Commission debating on the text of the ICCPR had many disagreements on the definition of freedom of information. While many of these disagreements were fundamentally ideological, one issue which did not concern much the conflict between the liberal and the communist camps and was soon resolved is particularly interesting for our discussion here.
In 1950, the French delegate at the UN Human Rights Commission reintroduced Paragraph 3 of Article 17 as prepared by the 1948 Geneva conference and suggested the following text on freedom of information:
Speech is free. Everyone shall have the right to freedom of expression by any means he chooses; this right shall include freedom to hold opinions, to seek, receive and impart information of all kinds, including facts, critical comments and ideas, either orally, in writing or in print, in the form of art, or through any other media.
Steps shall be taken to eliminate political, economic, technical and other obstacles likely to impair freedom of information.
The freedom referred to in paragraph 1 of the present article shall be subject only to such limitations, penalties and liabilities as are provided by law and necessary for the protection of national security, public order in a democratic society, safety, health or morals, or for the protection of the rights, reputation or freedoms of other persons.
In the same meeting, the British delegate proposed to add to the end of Article 17 the following paragraph: ‘Nothing in this Article shall affect the right of any State party to this Covenant to take measures which it deems necessary in order to bring its balance of payments into equilibrium.’ It is not clear from the archive what had motivated France and the UK to table these proposals, but interestingly, both proposals attended to the practical side for information flows and provided an occasion for the UN Human Rights Commission to consider whether and how to address the material conditions of this freedom. Of course, neither of the French or British proposals were to be seen in the final text of the ICCPR. They were soon struck out at the UN Human Rights Commission, which saw them as addressing ‘temporary situations or technical problems, rather than the right to freedom of expression itself, and should not, therefore, be included in a universal instrument of a lasting character.’
The issue of material conditions was also raised by some Third World countries who worried about inequality in international communication. As pointed out by the delegate of the United Arab Republic in 1961 at the UN General Assembly Third Committee, small countries simply did not have the resources to develop powerful information media. Many of them had no domestic news agency. Many also faced serious paper shortages. The Food and Agriculture Organization (FAO) noted the gravity of the shortage in the 1950s and launched several programs to increase pulp and paper production in the Global South. However, instead of calling for more access to and equitable distribution of material resources to overcome such disparities, Third World countries negotiating the text of the ICCPR attempted to add more limitations to freedom of expression and tried to forbid, for example, ‘systemic dissemination of false reports harmful to friendly relations among nations and of expressions inciting to war.’ So, why did these countries who were acutely aware of the impact of material inequality for international information flows choose to focus solely on the limitation clause rather than support the paragraph reintroduced by France?
On this question, the UN records only provide an incomplete picture, and alternative sources will be needed to answer how Third World countries thought about the reasoning of the UN Human Rights Commission and more generally what they thought about the place of material conditions in human rights treaties. The hope shared across the Global North and South in the 1950s and 1960s was that these various practical issues would be dealt with in a different kind of instrument, such as the convention on freedom of information, which however was never achieved. Indeed, organizations such as the UNESCO, the FAO and the ITU continued working to increase the production and consumption of information materials in the Global South. But when it comes to how freedom of information is understood under the human rights framework, the result is, as shown in Articles 19 and 20 of the ICCPR, that freedom of opinion and expression is spelt out without any consideration about material conditions for its realization.
The reasoning of the UN Human Rights Commission as quoted above which contrasted ‘temporary’ and ‘lasting’, ‘technical’ and ‘universal’ reflects a typical Cartesian division between the material and the abstract, which also demonstrates (yet again) the heavy imprint of the European epistemological tradition (I leave out the question whether the oriental transcendental philosophy has any role to play here). Meanwhile, if we see the ICCPR itself as embodying a particular literary genre, a style inherited from instruments typically considered as its precursors, such as Magna Carta and La Déclaration des droits de l’homme et du citoyen, what becomes visible is the constituting and constraining power of this genre. It has particular stylistic traits and linguistic economy: the text is authoritative and succinct, as each article or paragraph is no more than a few lines; it pronounces definitive principles, which means that mentions of issues seen as less essential or issues such as exceptions and limitations should not outweigh the principles; the principles are centred on entitlements of ‘human’, and to reflect this, most articles start with ‘everyone’, ‘anyone’ or ‘no one’ (a stark contrast with the 1966 International Convenant of Economic and Cultural Rights (ICESCR) in which most articles begin with ‘the state parties’, and no wonder the very character of the ICESCR was heatedly disputed at that time). These characteristics of the genre not only impose stylistic rules about what to include and exclude in the drafting of human rights principles but determine the contour of the concept of human rights in no trivial manner. Against a simple Cartesian dualism, form and substance are intimately intertwined here: the genre that the ICCPR takes and the conception of human rights informed by the enlightenment philosophy seem to be mutually dependent. Moreover, while it remains unclear from the archive how Third World countries reacted to the reasoning given by the UN Human Rights Commission regarding material conditions, it is clear that they acknowledged that the ICCPR needed to abide by this particular genre. For example, the Chilean delegate argued at the UN General Assembly Third Committee that the article should be ‘brief’ and ‘couched in strict legal language’ and ‘unambiguous terms.’ Delegates from Indonesia and Uruguay also argued that the article should emphasize the rights and should be ‘clear and well balanced.’
The issue of material conditions, being ‘temporary’ and ‘technical’, is therefore left outside the ICCPR. It is both a theoretical and stylistic choice. In one sense, this choice is not unreasonable, for it is unclear how the draft Paragraph 3, if it were to be inserted as suggested by France, could be concretized into obligations of states. It is also questionable if human rights bodies are the best place to tackle the problem of resource scarcity, or better leave it to agencies such as the ITU, UNESCO, FAO, etc. However, the reasoning provided by the UN Human Rights Commission that material conditions or obstacles are ‘temporary situations or technical problems, rather than matters related to the right to freedom of information itself’ is proven to be wrong. Not only are information and communication technologies constantly (re)constituting the way we understand freedom of information and exercise the right to free speech. More crucially, disparities of information flows across regions and continents remained and indeed broadened. There have been the pulp and paper production gap, the telephone gap, the television gap, the internet gap, and now, the digital gap dividing the Global North and Global South, the urban and the rural, as well as different groups of population, and the pattern of such gaps mapped along the wealth and power divide in the world is far more lasting than the UN Human Rights Commission assumed.