Media Share 9/MEDIASHARE_09.ISO/business/effdocs.zip/MEDIAAND.LAW

Text File | 1992-11-11 | 20KB | 332 lines

Here's a short article excerpted from my upcoming book tentatively
entitled "Communication in Peace and War" (Brooks-Cole, 1992).

                 "Media Performance and International Law"
                       by Howard H. Frederick, Ph.D.

     Events since the end of the Cold War have shown that the old order
must be replaced with a new international order.  But the world community
must seize the time to create a its own new order to prevent the unipolar
power from doing so.  That new world order requires broad acceptance of the
rule of law and should conform to the principles and purposes of only one
institution:  the United Nations and its Charter.

     A truly democratic "preferred" world order depends heavily on the
global information channels.  Communication media do not merely report
violations and victories of human rights.  There is also a growing
realization that communication and information are central to human rights.
What is worse, the media have often played a role in exacerbating tensions.
Today the media face the challenge of how to bring about peace, build
confidence among nations and strengthen international understanding.

     International communication and information law comprises those legal
institutions, instruments and processes that govern communication among and
between individuals, peoples, cultures, nations and technologies.  It is
found throughout the legal instruments on human rights, international
security, telecommunications, postal service, outer space, intellectual
property, trade and customs regulation, and culture and education.  In this
article we briefly sketch media norms on human rights and summarize the
entire body of law in thirteen basic norms for media performance under
international law.

     Oft-overlooked by the media themselves, a vast body of international
law regulates what is increasingly being called "international information
relations."  Indeed, nations have obeyed the international law of
communication and information for more than a century.  Every time a new
innovation in communication technology appears, international law arises to
regulate it.  Gutenberg's invention of the printing press led John Milton
to call for a "right to freedom of expression."  Morse's discovery of the
telegraph led to the creation of the International Telegraph Convention.
The development of wireless radio led quickly to the International Radio
Telegraph Convention.  The "radio wars" of the 1930s led to the famous
<it>International Convention Concerning the Use of Broadcasting in the
Cause of Peace<it>.

     One perplexing question comes to mind when we speak of the media.  Can
international law be applied to private media firms and individual
communicators?  States themselves are of course the subjects of
international law; State-controlled or State-financed mass media (e.g.
government broadcasting stations) are necessarily included here.  Private
media were traditionally not subjects of international law.  But From
Article 26 of the 1969 <it>Vienna Convention on the Law of Treaties<it>, we
can deduce that States today have general obligations in the sphere of
international law which they cannot evade by pointing to domestic laws.
The manner in which international law is enforced on private media is a
matter of a state's sovereign prerogative.  If international law prohibits
propaganda for war or racism, the State has an obligation to regulate the
private media in this regard.

     One instance of a professional communicator being the subject of
international law was the Nazi propagandist, Julius Streicher, editor of
the anti-semitic newspaper <un>Der Stuermer<un>.  He was accused of crimes
against humanity under the 1945 <it>Charter of the International Military
Tribunal<it>, the so-called Nuremberg Tribunal, which had the power to try
and punish Axis soldiers who committed crimes against peace, war crimes,
and crimes against humanity.  The Nuremberg judges interpreted "crimes
against humanity" to include propaganda and incitement to genocide.  The
Court determined that for more than twenty-five years Streicher had engaged
in writing and preaching anti-Semitism and had called for the extermination
of the Jewish people in 1938.  Based on a content analysis of articles from
<un>Der Stuermer<un>, the judges further determined that Streicher had
aroused the German people to active persecution of the Jewish people.  The
International Military Tribunal found Streicher guilty and condemned him to
death by hanging.

             ________________________________________________
                          MAJOR DOCUMENTS OF THE
                           INTERNATIONAL LAW OF
                       COMMUNICATION AND INFORMATION
             ________________________________________________

     When we examine the Charter and the many instruments that constitute
international communication and information law, we find thirteen basic
principles on media performance.

     <bo>Communications media may not be used for war and aggression<bo>.
The universally respected principle that prohibits the threat or use of
force by one State against another forbids not only war of aggression but
also propaganda for wars of aggression.  This means that propaganda
glorifying the threat or use of force in international relations is
prohibited by law.  States are forbidden from spreading warmongering
content themselves, e.g. through government-owned and -operated
international radio stations.  They are also obligated to stop any war
propaganda emanating from their territory by private groups.

     <bo>Communications media shall not be used to intervene in the
internal affairs of another State<bo>.  This principle forbids all forms of
interference or attempted threats against a State or against its political,
economic and cultural elements.  This includes organizing, assisting,
fomenting, financing, inciting or tolerating subversive information
activities directed towards the overthrow of another state, or interfering
in civil strife in another state.  It also bans systemically undermining
public support for the opponent's inner cohesion, gradually putting another
country's state leadership in a state of uncertainly and discouragement,
diminishing its ability to act under the pressure of a national public
opinion undergoing a process of reorientation.  This principle prohibits
subversive foreign broadcasts which attempt to change another country's
governing system or which try to foment discontent and incite unrest.

     <bo>All dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination are punishable by law<bo>.  This
principle forbids the information activities of all organizations based on
ideas or theories of superiority of one race or group of persons of one
color or ethnic origin, or which attempt to justify or promote racial
hatred, discrimination in any form.  Binding international law prohibits
all dissemination of these ideas as well as all organizations which promote
and incite racial discrimination.  It is a crime against humanity to
directly abet, encourage or cooperate in the commission of racial
discrimination.

     <bo>The direct and public incitement to destroy a national, ethnic,
racial or religious group is punishable by law<bo>.  This includes using
the media to incite another person to destroy in whole or in part, a
national, ethnic, racial or religious group.  As the Nuremberg Tribunal set
out, crimes against humanity include "murder, extermination, enslavement,
deportation, and other inhuman acts performed against any civilian
population prior to or during the war."

     <bo>States are obligated to modify the social and cultural practices,
including information and communication activities, that are based on the
inferiority or the superiority of either of the sexes and to eliminate any
stereotyped concept of roles of men and women<bo>.  These may mean changing
media practices which advocate discrimination against women.

     <bo>Media should play a positive role in educating and enlightening
the public toward peace.<bo>  Through international law, media are
repeatedly called on to promote a better knowledge of the conditions of
life and the organization of peace.  Media activities should incorporate
contents compatible with the task of the preparation for life in peace.
The mass media must contribute effectively to the strengthening of peace
and international understanding and to the promotion of human rights.

     <bo>Peoples enjoy equal rights and self-determination in communication
and information<bo>.  All peoples have the right freely to pursue their
chosen system of economic, social and cultural development.  This includes
the right to develop local information and communication infrastructures
without the interference of external parties, to establish communication
policies for the benefit of the people, and to participate in international
information relations without discrimination.

     <bo>State enjoy sovereign equality in the communication and
information infrastructures<bo>.  Every state has an inalienable right to
choose its political, social economic and cultural systems without
interference in any form by another State.  States enjoy the full rights of
sovereignty and territorial integrity in the area of communication and
information.  From this we derive the principle of "information
sovereignty," which includes:  the right to a locally controlled
communication infrastructure; the right to an indigenous communication
policy; the right to participate as an equal in international information
relations; the right to transmit non-belligerent foreign propaganda; the
right to conclude bilateral or multilateral agreements in the area of
communication and information; and the obligation to respect the
information sovereignty of other States.  Every national communication
system has juridical expression through an "information authority,"
especially in its constitutional, penal, civil, press, copyright, post and
telecommunications laws.

     <bo>Disputes about communication and information must be settled
peacefully<bo>.  The principle that governments must settle their
international disputes by peaceful means applies to the processes of
international communication and information.  Many international
communications activities require advance coordination and, if conflict
arises, peaceful resolution through negotiation.  This principle implies
that conflicts such as unwanted direct satellite broadcasting must be
settled by negotiation.  If a nation is aggrieved in an area of
international information relations, it may call upon the violating nation
to settle the dispute in a way that does not endanger international peace
and security.  This duty also implies that States must refrain from and
prevent hostile and subversive ideological campaigns.

     <bo>Communication and information demand international
cooperation<bo>.  Despite their differences, States have a built-in
incentive to cooperate in the field of international communication.
International broadcasters need to coordinate their frequencies to avoid
interference.  New technologies such as transborder data flow and
international satellite television cannot succeed technically without the
willingness of States to work cooperatively toward mutually beneficial
solutions.  Future technologies cannot prosper without international
cooperation in setting technical standards.  Cooperation guarantees
technical success and assures the sovereign equality of States.

     <bo>Good faith obligations require States to uphold international
communication and information law<bo>.  States must fulfill in good faith
their obligations under recognized international law.  States must be aware
of such obligations and obligations to the United Nations Charter and
cannot refrain from upholding them by pointing to national law.  This
applies in all areas of international law, including international
communication and information law.

     <bo>Certain kinds of international information content are
prohibited<bo>.  There is an absolute ban on war propaganda.  In addition,
there are prohibition of communication content advocating hatred, acts of
violence or hostility among peoples and races.  Media may not advocate
colonialism, nor may they be used in propaganda against international
treaties.  This includes all communication activities which attempts to
prohibit or impede the fulfillment of in-force treaty obligations among
States.  In addition, the circulation of obscene publications is forbidden
under binding international law.

     <bo>Certain kinds of information content are encouraged<bo>.  To
begin, the principle of free flow of information is prominent throughout
international communication and information law.  Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers.  Although this
right is often abused by powerful countries, it is important to remember
that this is one of the fundamental goals of international communication
and information law.

     As we enter the 1990s, there is a growing realization that
<bo>communication and information are central to human rights<bo>.
Communication media do not merely defend human rights by reporting
violations and victories.  There is a growing perception that <it>the right
to communicate<it> should be added to the Universal Declaration among the
<it>basic human rights<it> cherished by all peoples.  This new right
transcends the right to receive information, as guaranteed in the Universal
Declaration.  Today, communication among nations must be a two-way process
in which partners--both individual and collective--carry on a democratic
and balanced dialogue and the mass media operate in the service of peace
and international understanding.

     Just like their earthly counterparts, electronic highways require
"rules of the road."  Regulation is important and necessary for our highly
congested communication thoroughfares.  To carry this analogy one step
further, rules prohibiting drunk drivers from our streets are not meant to
limit freedom.  They increase the freedom for the good drivers.  In the
same way, regulations against communications violating international norms
are not meant to limit freedom to communicate.  They are meant to
strengthen the freedom for responsible communication.  In our lifetimes,
international law has grown immensely and is respected now more than ever.
The evolutionary trend is apparent--and so is the work before us.

                              APPENDIX I

                        MAJOR DOCUMENTS OF THE
                         INTERNATIONAL LAW OF
                    COMMUNICATION AND INFORMATION

     U.S adherence to a binding treaty is indicated with the code
US=SRE, where S=signed, R=ratified, E=entered into force US=NS
means that the United States has not signed that particular
instrument.  US=S means that the United States has signed that
treaty but not ratified it.

1791 Bill of Rights, U.S Constitution
1883/1967 Convention Revising the Paris Convention of March 20, 1883, as
     revised, for the Protection of Industrial Property <bo>US=SRE<bo>
1884 Convention for the Protection of Submarine Cables <bo>US=SRE<bo>
1886 Convention for the Protection of Literary and Artistic Works, Berne
     <bo>US=SRE<bo>
1910 Agreement for the Suppression of the Circulation of Obscene Publica-
     tions and 1949 Protocol <bo>US=SRE  <bo>
1910 Convention Concerning Literary and Artistic Copyright <bo>US=SRE<bo>
1923 International Convention for the Suppression of the Circulation of and
     Traffic in Obscene Publications <bo>US=NS<bo>
1936 International Convention Concerning the Use of Broadcasting the Cause
     of Peace <bo>US=NS<bo>
1945 Agreement for the Prosecution and Punishment of the Major War
     Criminals of the European Axis Powers and Charter of the International
     Military Tribunal <bo>US=SRE<bo>
1945 Charter of the United Nations <bo>US=SRE<bo>
1945 Constitution of the United Nations Educational, Scientific and
     Cultural Organizations <bo>US=WITHDRAWN <bo>1984
1945 Statute of the International Court of Justice <bo>US=DENOUNCED
     <bo>1986
1948 Convention on the Prevention and Punishment of the Crime of Genocide
     <bo>US=SRE<bo>
1948 Universal Declaration of Human Rights
1949 Agreement for Facilitating the International Circulation of Visual and
     Auditory Materials of an Educational, Scientific and Cultural
     Character, with protocol <bo>US=SRE  <bo>
1949 Conventions for the Protection of War Victims <bo>US=SRE<bo>
1950 Agreement on the Importation of Educational, Scientific and Cultural
     Materials, with protocol <bo>US=SRE  <bo>
1950 [Western European] Convention for the Protection of Human Rights and
     Fundamental Freedoms <bo>US=NS<bo>
1952 Convention on the International Right of Correction <bo>US=NS<bo>
1952 Universal Copyright Convention as revised with two protocols annexed
     thereto <bo>US=SRE  <bo>
1958 Convention Concerning the Exchange of Official Publications and Gov-
     ernment Documents between States <bo>US=SRE  <bo>
1958 Convention Concerning the International Exchange of Publications
     <bo>US=SRE  <bo>
1960 Convention Against Discrimination in Education, and 1962 Protocol
     <bo>US=NS<bo>
1961 International Convention for the Protection of Performers, Producers
     and Phonograms and Broadcasting Organizations (Rome Convention)
     <bo>US=NS <bo>
1966 International Convention on the Elimination of All Forms of Racial
     Discrimination <bo>US=S  <bo>
1966 International Covenant on Civil and Political Rights, and Optional
     Protocol <bo>US=S  <bo>
1966 International Covenant on Economic, Social and Cultural Rights
     <bo>US=S <bo>
1966 Optional Protocol to the 1966 International Covenant on Civil and
     Human Rights <bo>US=NS<bo>
1967 Convention Establishing the World Intellectual Property Organization
     <bo>US=SRE  <bo>
1967 Treaty on Principles Governing the Activities of States in the Explo-
     ration and Use of Outer Space, including the Moon and other Celestial
     Bodies <bo>US=SRE<bo>
1969 American Convention on Human Rights <bo>US=S<bo>
1973 International Convention on the Suppression and Punishment of the
     Crime of Apartheid <bo>US=NS  <bo>
1974 Convention Relating to the Distribution of Programme-Carrying Signals
     Transmitted by Satellite <bo>US=SRE  <bo>
1978 Final Document of the Tenth Special Session of the General Assembly on
     Disarmament
1978 Unesco "Declaration on the Fundamental Principles Concerning the
     Contribution of the Mass Media to Strengthening Peace and Internation-
     al Understanding, to the Promotion of Human Rights and to Countering
     Racialism, Apartheid and Incitement to War" (Mass Media Declaration)
1979 Convention on the Elimination of All Forms of Discrimination Against
     Women <bo>US=S  <bo>
1982 Convention on the Law of the Sea <bo>US=NS<bo>
1982 International Telecommunications Convention <bo>US=SRE  <bo>
1983 Declaration on the Condemnation of Nuclear War
1984 Declaration on the Right of Peoples to Peace
1984 Third Additional Protocol (Final Acts) to the Constitution of the
     Universal Postal Union of July 10, 1964, General Regulations with
     Annex, and the Universal Postal Convention with Final Protocol and
     Detailed Regulations <bo>US=SRE<bo>