to train individuals who can develop, identify, and apply technology suited to the needs of developing countries. . . .

The fourth element of our approach is to make the process of transferring existing technology more effective and equitable.

The United States recommends that voluntary guidelines be developed that set forth the conditions and standards of technology transfer which encourage, facilitate, and maximize the orderly transfer of technology.

The fifth element of the U.S. program is to set goals for achievement before and during the U.N. Conference on Science and Technology for Development, now proposed for 1979. The United States strongly supports this conference and its objectives. Preparations for it provide a major opportunity for both developed and developing countries to review their responsibilities for the sharing and use of technology.

Rising import costs caused in large part by higher oil prices, and reduced export earnings resulting from recession in the industrialized nations, have generated unprecedented international payments deficits. Although global economic recovery has begun, many countries will face persisting deficits this year.

A major institutional effort must be made if these countries are to avoid severe cutbacks in their imports and consequent reductions in their economic growth. There are three priority areas:

-We must insure that flows of funds for development projects are neither reduced nor diverted by short term economic problems. In addition, long term financing must be increased and its quality enhanced.

-We must enable private markets to continue to play a substantial role in providing development capital.

-We must see to it that the domestic economic policies of all our countries are sound. They should not place undue pressures on payments positions by unnecessary accumulations of debt. And we must give particular attention to those countries unable to avoid critical debt problems.

Many countries have had to resort to short term external borrowing to finance their deficits. Debt payment burdens are mounting; a number of countries are experiencing serious problems in meeting their debt obligations.

Generalized rescheduling of debts is not the answer. It would erode the creditworthiness of countries borrowing in private capital markets. By tying financing to debt, it obscures the significant differences among countries and prevents an appropriate focus on those in most urgent need. And it would not be

fair to those nations which have taken strong policy measures to reduce their obligations.

The debt problem must be addressed in relation to each country's specific position and needs. The United States stands ready to help countries suffering acute debt service problems with measures appropriate to each case. The procedures must be agreeable to creditor and debtor alike. The device of a creditor club is a flexible instrument for negotiations.

To improve the basis for consideration of balance-of-payments problems of particular developing countries, the United States proposes that the Finance Commission of the Conference on International Economic Cooperation or another mutually acceptable forum examine the economic and acute financing problems of developing countries.

The needs of many nations in the developing world are great, but the special requirements of the poorest countries are massive. This conference has a collective moral responsibility to respond to this challenge. We must devote major efforts to improve programs for the poorest countries and to devise new ones where necessary, for without adequate assistance the poorest will be condemned to continuing poverty and helplessness. We must increase resource flows, improve their terms, and enhance their quality. And aid must be given on softer terms, because the poorest countries are by definition unable to service debt except on a highly concessional basis.

Resource flows to the poorest countries must be freed from restrictions on procurement sources and the financing of local costs which distort the design of projects, waste resources, and cause excessive reliance on imported equipment.

Dept. of State Bulletin, Vol. LXXIV, No. 1927, May 3, 1976, pp. 657-671.

In the final session of the UNCTAD IV Conference a resolution proposing further study of the U.S. proposal for an International Resources Bank was defeated by two votes, with 31 votes in favor, 33 votes against, and 90 countries abstaining or absenting themselves. On May 31, 1976, the Conference adopted by consensus a resolution on commodities. The United States joined in the consensus, but with a statement, noting that the United States would “participate without any commitment in preparatory meetings to examine whether further agreements for financing of buffer stocks including common funding are desirable."

A consensus resolution on debt called for improvements in the present case-by-case approach to debt relief.

A consensus resolution on market access, restrictive business practices, and industrialization was approved, but the United States and 15 other countries abstained on a resolution dealing with transnational corporations and expansion of trade in manufactures

and semi-manufactures.

A resolution on strengthening of the developing countries' technological capacity included proposals from Secretary

Kissinger's address. Another consensus resolution dealt with drafting a code of conduct for the transfer of technology.

In still another consensus resolution, UNCTAD IV established a clear distinction between the problems of the "least developed countries" and "landlocked and island countries." It affirmed that while the latter category required "specific action," the least developed countries needed a broad range of “special measures.”

U.S. endorsement was given to a consensus resolution that called on developed countries to facilitate the economic cooperation programs of developing countries. It stressed the importance of increased cooperation between the less developed countries and included agreement by the developing countries to support this cooperation where possible in the areas of economic integration, multinational marketing enterprises, and feasibility studies for multinational ventures. An interpretive statement by the developed countries pointed out that the private sector within free market economy countries was free within given limits to make its own decisions and that governments could seek to influence but not ultimately control the commercial decisions of the private sector. A joint statement by Secretary of State Henry A. Kissinger and Treasury Secretary William E. Simon, issued at Washington on June 1, 1976, expressed regret at the defeat-and the manner of defeat-of the U.S. proposal for the International Resources Bank, but stated that the IRB proposal would be advanced again and the United States would expect it to be "considered with the same respect and care which the United States will lend to the study of the proposals which the LDC's will table."

For the joint statement by Secretaries Kissinger and Simon, U.S. statements of reservations, explanations, and interpretations concerning the UNCTAD resolutions. and a summary of the UNCTAD resolution on commodities, prepared by the Bureau of Economic and Business Affairs, Dept. of State, see Dept. of State Bulletin, Vol. LXXV, No. 1935, July 26, 1976, pp. 133-138. For the resolutions and recommendation adopted by UNCTAD IV, see U.N. Doc. TD/INF. 14, June 16, 1976, and TD/RES/98(IV), June 21, 1976. For a statement by Ambassador Jacob M. Myerson, U.S. representative in Committee II at the United Nations, in explanation of U.S. vote on the report of UNCTAD on its fourth session, and reaffirming U.S. positions on the issues involved. see Press Release USUN-190 (76), Dec. 15, 1976.

84

Transnational Corporations, Foreign
Investment, and Tax Law

Transnational Corporations

Corrupt Practices

Monroe Leigh, Legal Adviser of the Department of State, in an address before the Southwestern Legal Foundation at Dallas on

April 29, 1976, entitled "The Challenge of Transnational Corporate 'Wrongdoing' to the Rule of Law," stressed that the individual's claim to due process should not be overlooked in attempts to expose U.S. corporate wrongdoing abroad. The following are excerpts from Mr. Leigh's address:

. . [T]he rule of law cannot look only to the behavior of corporations. The rule of law also requires a decent respect for the rights of individuals who are alleged to have received bribes from American companies. It is essential that the names of individuals mentioned in unverified allegations not be prematurely disclosed prior to the completion of the investigation process-prior to some confirmation that the allegations are based on reliable evidence.

[T]he State Department has been requested by various foreign governments to make available "the names" of those foreign officials in high places alleged to have received bribes from American companies. . .

[T]hese requests have presented a dilemma for the American policymaker. On the one hand, the U.S. Government condemns bribery as strongly as any government on earth. Moreover, its natural instinct would be to cooperate with foreign law enforcement officials in securing convictions for crimes which have been committed in foreign countries.

On the other hand, there are competing considerations. First, our own law enforcement agencies, such as the Department of Justice and the SEC [Securities and Exchange Commission], have not completed their investigations. Premature disclosure of names can prejudice the orderly processes of American criminal investigation and law enforcement. Secondly-and of perhaps even greater importance, . . . we do not believe that unverified allegations should be made public until such time as appropriate authorities either in this country or abroad have had an opportunity to verify the reliability of the evidence.

[T]he truth of any allegation should be investigated; but prior to an investigation by law enforcement officials as to whether the evidence warrants prosecution, the name of the alleged individual should not, in my judgment, be publicly revealed.

In saying this, I am claiming no more for the foreign individual than we would take for granted in connection with a criminal investigation in the United States. The Department of Justice in its investigation of criminal activities treats all such investigations as confidential. The same is true of the SEC investigations. Foreign law enforcement officials generally do the same. Moreover, the Senate Subcommittee on Multinational Corporations has taken the same position in that it has declined to make public the names of foreign politicians mentioned in the documentation which it has secured.

I am familiar with the line of argument which contends that if a foreign government requests the names of its nationals involved in alleged bribetaking, that request should be complied with because the foreign government, not the United States, is responsible for protecting the rights of its own citizens.

Ordinarily, under customary international law, one would say that a foreign sovereign has the right to investigate and punish the wrongdoing of its own nationals within its own territory. But does this mean that the United States has no interest in how the investigation is pursued? Much of the evidence is in this country and has come from American nationals. And what of due process? In transmitting evidence, should the United States totally abstain from promoting concepts of fairness in the investigative process?

I believe that we should not abstain. In fact, if one takes a broader view of international law, one could well argue that the concept of fairness is central to international principles of human rights. One might point, for example, to articles 55 and 56 of the U.N. Charter, where all U.N. members undertake to promote human rights. Article 12 of the Universal Declaration of Human Rights guarantees to an individual the protection of the law against arbitrary interference with his privacy and against "attacks upon his honor and reputation." This would at least support, if not mandate, efforts by all countries concerned to protect the rights of individuals involved in transnational investigations.

. . . [T]he fact that evidence is to be sent outside the territorial confines of the United States does not mean that law enforcement officials either in this country or abroad should disregard elementary considerations of due process. This would be true whether the reputation at stake was that of an ordinary citizen or of a senior politician high in the councils of government. We should not allow formalistic notions of territorial sovereignty to frustrate new modes of international cooperation which safeguard these interests.

In sum, American policymakers have had two objectives: First, to cooperate with foreign law enforcement officials, but second, to do so in a way which would safeguard the rights of the individual.

In implementing this policy, our Department of Justice has concluded a half-dozen evidence exchange agreements with foreign law enforcement officials. [See ante, Ch. 6, §6, pp. 311-316.] These agreements provide for reciprocal exchange of evidence between the U.S. Justice Department and the foreign law enforcement agency, usually the foreign Ministry of Justice. They provide for mutual cooperation in securing additional information on illicit payments. They provide that frequent consultation shall occur so that the activities of law enforcement officials in one country do not adversely affect investigations in the other country. And-most important-they provide that during the period of investigation the evidence exchanged will be treated as confidential.

None of these exchange agreements contemplates a holding back of evidence because it may be particularly sensitive. On the contrary, full exchange is to take place between our Department of Justice and the foreign law enforcement agency, but on the