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Published online by Cambridge University Press: 20 April 2017
An expert on foreign affairs has summarized the limitation upon the right of a government to make public the diplomatic papers which it has received from another government as follows: “ … one party to a negotiation cannot, in honor and in courtesy, publish the negotiation without the consent of the other party, on pain of forfeiting that good-will upon which … ‘the peace of the world ultimately depends.’ ” This principle of consent to publication is accepted, with some reservations and exceptions, by American practice. But American practice in this matter is not generally accepted by all foreign offices and it is not precisely and definitely written into international law. It has been generally observed in normal times by the Great Powers, which have had most to gain by its application, and it has frequently been disregarded by small powers and by Great Powers in times of stress. It rests upon comity and reciprocity, not upon international legislation.
1 Paul Scott Mowrer, Our Foreign Affairs, 1924, p. 227.
2 State Department file no. 710.02/265-1/6.
3 Samuel Flagg Bemis, in American Historical Review, Jan., 1941, p. 439.
4 Printed in Foreign Relations 1914, Supp., p. iii. The relevant provision reads: “The Chief of the Division of Publications is expected to initiate, through the appropriate channels, the correspondence necessary to secure from a foreign government permission to publish any document received from it and which it is desired to publish as a part of the diplomatic correspondence of the United States. Without such permission, the document in question must not be used.” The order of March 26, 1925, formalized but did not initiate the practice of asking permission in such matters. For instance a memorandum of February 13, 1923, from the Division of Publications to the Diplomatic Bureau (in file 026 Foreign Relations) stated that: “Following the usual custom of requesting consent to print correspondence from other governments in ‘Foreign Relations’ it is requested that ‘consent to print’ the following correspondence be obtained and that suitable instructions be sent to our diplomatic representatives in the respective countries.” Earlier files are inconclusive as to the practice. Of interest is a chit attached to a telegram of March 14, 1918 (422.11 G93/947) which states that “We ask big nations permission to publish their notes in our ‘Foreign Relations.’ We haven’t asked little countries but we don’t publish for at least a year.” On the other hand Judge John Bassett Moore has criticized the Department for requesting permission in any cases at all and has indicated that the practice was not resorted to when he was in the Department. Judge Moore has stated that he requested permission of no foreign governments when he used their papers in his Digest of International Law (8 vols. G.P.O., 1906).
5 ”Regulations Governing Use of the Records of the Dept. of State,” June 19, 1939. Departmental Regulations 420.1, effective March 15, 1946.
6 Soviet permission has not been requested for the publication of papers which predated U. S. recognition of the U.S.S.R.
7 E.g., the Spanish papers published by the State Department in The Spanish Government and the Axis (March, 1946).
8 Secretary Randolph to the French Minister, June 13, 1795. Cf. Atty. Gen. Lee as cited in. Moore’s Digest, IV, p. 682. Moore’s Digest, IV, p. 718, quotes from an instruction.
9 Foreign Relations, 1916, Supp., pp. 198-200; Tansill, America Goes to War, p. 488.
10 Hunter Miller, Treaties, II, pp. 30-31 ; cf. Journals of the Continental Congress, XIV, 830, 832.
11 Harold Temperley and Lillian M. Penson, A Century of Diplomatic Blue Books, p. xii.
12 Despatch of December 27, 1881, from Minister to Great Britain to Secretary Blaine; Correspondence in Relation to the Proposed Interoceanic Canal, p. 339.
13 Senate Exec. Doc, No. 127, 50th Cong., 1st Sess., pp. 1-2.
14 Senate Exec. Doc. No. 102, 50th Cong., 2nd Sess., pp. 1-2.
15 Foreign Relations, 1917, pp. 645-16.
16 Lansing, War Memoirs, pp. 302-03.
17 Foreign Relations, 1918, pp. 406-08, 409, 415. See also p. 593 for a case involving unauthorized publication by Mexico.
18 Dept. of State file No. 882.51/1459.
19 Dept. of State file No. 816.021/24.
20 Dept. of State file No. 823.021/7.
21 Dept. of State file No. 800.2.
22 Nov. 3, 1937, Dept. of State file No. 823.021/10.
23 Dept. of State file No. 823.021.
24 Press Release, Jan. 25, 1936, pp. 99-100. The statement is dated Jan. 20, 1936.
25 Note of March 24, 1937, from Minister of Finland.
26 Radio Bulletin, June 20, 1939.
27 Radio Bulletin, April 1, 1941.
28 Department of State file No. 116.72/19.
29 Quoted in Moore, Diffest, IV, pp. 720-21.
30 Moore, Digest, IV, pp. 724-25.
31 Foreign Relations, 1889, pp. 483-84.
32 Dept. of State file No. 893.74/976 and 893.74/978.
33 Radio Bulletin, Oct. 28, 1938.
34 State Dept. file 026 Foreign Relations/1146.
35 Instructions to Embassy at Tokyo, Jan. 30 and July 15, 1935, State Dept. file 026 Foreign Relations/781 and 878.
36 Referred to in Moore, Digest, IV, p. 722. Quotation is from Moore.
37 State Dept. file No. 816.021/24.
38 State Dept. file No. 822.021/12.
39 Tel. 706, Dee. 9, 1938, from Embassy at Berlin and tel. 250, Dec. 29, 1938, to the Embassy.
40 Airmail despatch 34, Aug. 7, 1939, from the Embassy at Panama.
41 Despatch 4016, April 27, 1943, from American Embassy at Panama.
42 Instruction to Madrid, March 21, 1940.
43 American Society of International Law, Report of Committee on Publications of the Department of State, 1940.
44 Dept. of State file No. 724.34119/1833.
45 Dept. of State file No. 824.6363 ST 2/518.
46 E.g., in Vol. I, pp. 70, 192, 212, 219, 232, 273, 297, 400, 456, 625, 627, 640. Some of these may have been previously published.
47 Moore, Collected Papers, Vol. VII, p. 139.
48 Instructions to Diplomatic Officers of the U. S., 1897, sec. 107, p. 40.
49 Instruction of Dec. 9, 1836, from Sec. Forsyth to the American Chargé in Mexico, quoted in Moore’s Digest, Vol. Ill, p. 718.
50 Dept. of State file No. 711.38/282.
51 Dept. of State file No. 026-Foreign Relations/1125.
52 Dept. of State file No. NE 867.927/46.
53 Dept. of State Publication No. 1170, pp. 5-8.