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aid? I am assuring for purposes of discussion that such countries do not meet the extraordinary circumstances or needy people exceptions in the law?
Mr. PATTERSON. Mr. Chairman, I would be somewhat reluctant to name countries. I haven't really come prepared to do so, but I will be happy to submit my thoughts for the record.
Mr. YATRON. We would appreciate that.
Mr. PATTERSON. Those countries I mentioned in my testimony, I would suspect, might be on the list.
Mr. YATRON. Currently the term "consistent pattern of human rights violations" is used in section 502B and section 116 of the Foreign Assistance Act, section 701 of the IFIA [International Financial Institutions Act], section 112 of Public Law 480. How important is it to maintain a consistent standard in all of these laws? Mr. PATTERSON. Mr. Chairman, I think it is important to maintain consistent standards if you are talking about the same subject matter generally, but particularly with regard to economic aid. I, therefore, think that changing the bilateral aid side to conform with the multilateral would be a wise and consistent move to make.
Mr. YATRON. Thank you very much.
Mr. LEACH. Thank you, Mr. Chairman.
Would you want to lay out to the subcommittee what votes you would handle differently?
Mr. PATTERSON. No, I wouldn't.
Mr. LEACH. As you know, in the banking law, we are dealing with votes in multinational banking forums. In the Foreign Assistance Act, Congress receives annual and, in some cases, biannual reports from the executive, and has certain discretion on how to respond to specific loans or grants. Do you think that it is as important in the Foreign Assistance Act to have the same vocabulary as we have in the banking law, or do you visualize one as being more important than the other?
Mr. PATTERSON. I say consistency is a desired and I am sure it is a desired approach to any problem, but I am sure that there may be differences that would make sense under certain circumstances. So I would hate to say, we should apply the same principle no matter what, but I do believe that there is substantial discretion, both on the MDB's and under the bilateral aid for the administration to come up and justify their position if, for some reason, they feel it should receive special consideration.
Mr. LEACH. In your own mind, is there a difference between the definition of "consistent pattern" and the definition of "pattern"? Mr. PATTERSON. I think, as I somewhat touched upon, but perhaps not enough, in my testimony, that there is. I think it is pretty much as the administration, at least, enlightened us during the hearings. A "consistent pattern" to them meant every month violations had to be at least at the highest level or higher to be consistent. As violations started going down, the human rights record wasn't consistent, it might be gross and it might be a pattern, but they said that it was consistent.
We probed rather substantially on that, and I suppose in a very technical reading, they had a point to make. My first reading of it
was that there should not be that great a difference of interpretation, but in fact they had been hanging their hat on that word rather consistently.
Assuming that this is the way successive administrations also viewed it, then it seems to me the pattern alone should be sufficient, the pattern of gross violations. If they have a pattern over any period of time, whether violations are up or down, the pattern would be set. By removing the word "consistent," it would be more difficult for them to use the highest level as their standard.
Mr. LEACH. I think you have raised a valid point.
Let me just say, in my opinion, there isn't a great deal of difference between a "pattern" and a "consistent pattern" in legislative intent. But clearly there has been a rather great distinction in executive branch interpretation. For that reason, I think this remedy or other remedies, ought to be seriously considered by this committee.
I personally see a real difference between the Banking Committee and the Foreign Affairs Committee. We actually vote on foreign aid, whereas in the case of the Banking Committee's jurisdiction, it is the executive that has the discretion to vote specifically on items in international lending institutions. So there is a difference in committee jurisdiction as well as in how Congress responds.
I think you have two very valid points. One is that the executive has probably made a greater distinction between these two terms than the legislation intended. Second, I think you have a valid point, whether it is a perfect remedy or not, in the sense that when one committee and one jurisdiction changes direction in legislation, I think it biases the second committee to at least look seriously to see how the first committee has responded. To that extent, I think the committee ought to very seriously consider the approach that you have presented.
Frankly, like you, I am frustrated. I think that this controversy over the phrase "consistent pattern" would not have been an issue if there had been a different executive policy. So it is the executive and, I would stress not simply this administration but, it has been every administration since this human rights language was adopted, that has taken a little different tack than I think Congress intended.
So I commend your testimony, and your efforts in this very profound area of law. Thank you.
Mr. PATTERSON. I thank you.
My own reading is that there would not be that much difference between the two words, and therefore it would not present a problem in changing the law in the area of foreign affairs either. I think it would send a distinct message to the executive. I think there is some reason to make that change, and I urge you to do so. Mr. YATRON. I want to thank you very much, Mr. Patterson, for giving us the benefit of your views and your contribution to the subcommittee. Thank you very much for being here.
Mr. PATTERSON. Thank you, Mr. Chairman, I appreciate it.
Mr. YATRON. Our next witness will be the Honorable Elliott Abrams, Assistant Secretary of State for Human Rights and Humanitarian Affairs, accompanied by Mr. James Conrow, Office Di
rector of the Multilateral Development Bank in the Department of the Treasury.
Secretary Abrams, we welcome you back.
STATEMENT OF HON. ELLIOTT ABRAMS, ASSISTANT SECRETARY FOR HUMAN RIGHTS AND HUMANITARIAN AFFAIRS
Mr. ABRAMS. Thank you, Mr. Chairman.
I am very glad to be here today to discuss what I consider to be a very interesting question. We did prepare some testimony for the Banking Committee, and I thought I would review that just briefly. The change of language in the international financial institutions, I think, would lead to confusion, and would mean that relevant U.S. statutes would contain various standards. I think probably the consensus is forming that you shouldn't have different human rights standards, at least semantic standards, in different parts of our body of laws, although I do think that Mr. Leach's point about the varying roles with respect to foreign aid and international banking is valid.
It is also true that the term "consistent pattern" appears in international documents, which we cannot change. So there would be a discrepancy between our internal law and the U.N. phraseology, not necessarily something to be avoided at all times, but I think it is worth noting that the difference would exist.
We are aware that some Members of Congress have expressed concern with the recent votes as we testified before the Banking Committee, but I still believe that the best response is to discuss those votes, rather than disrupting the current standard that is in the statute.
We believe we have a general obligation under the International Financial Institutions Act to promote human rights by using our voice and vote. By extension, we promote human rights by our judgment on the various types of assistance questions which we address daily. Where there are differences about the judgments to be made, and there will always be such differences, under every administration, we think they ought to be discussed, and the terminology of the statute should not be changed.
We would further note that some legal writing in the U.N. human rights system suggests that the word "consistent" is the element in the phrase "consistent pattern of gross violations" which implies that the violations must occur over a period of time in order to fall within the ambit of this phrase. However, the word "pattern" can also imply the passage of time. Therefore, it is not clear that eliminating the word "consistent" would alter the meaning of this phrase.
If the proposal to drop the word "consistent" were adopted on the theory that the phrase should not apply to conduct over a period of time, we might recommend against assistance to countries like Liberia, where a burst of serious human rights violations occurred with the change of government in April 1980, but did not continue. In 1981 all political prisoners had been released and by 1982 the rule of law had largely returned. There are analogous situations in other countries. If we simply said no aid to countries
with a "pattern of gross violations," some would argue that any number of countries would be thus affected.
This is not our interpretation. Others would argue that a "pattern," as I stated earlier, necessarily involves a longtime element. My point really is that any revision to the present language would give rise to its own debate, to another round of debates, since the revision would be more precise than the current text.
Let me just conclude, Mr. Chairman, by saying that I think Mr. Patterson's very worthy effort here basically cannot succeed. It is not that you can't leave the word "consistent," but I think that he is trying to solve a problem where, in fact, what exists is not a problem to which there are magic solutions, but rather a condition which will always be with us, and that is disagreements about the application and interpretation of the human rights statutes.
Let me just take one example. Let us suppose that there were votes on every country in the world every day in the World Bank. You take the case of Liberia, the day after the execution or murder of the officials of the former government, I think you would all agree that we would vote against a loan to Liberia. When would we vote for a loan to Liberia? Do we wait a week, a month, or a year? Do we wait until they had a new constitution, or until they started drafting a new constitution? Do we wait until they had begun to release political prisoners, or until they had released all political prisoners? Do we wait until they had held elections, or scheduled elections?
Those questions are not answered by whether the term "consistent" appears in the statute, nor really can they be answered by any kind of mechanism of application of language. It is a judgment. It is a judgment we make in an effort to maximize our influence to promote human rights in Liberia.
Our judgment may be flawed, certainly it is flawed at times, and you may disagree with it. But I think an effort to eliminate disagreements by changing the use of the word "consistent" is not going to succceed, and it may in fact just add further confusion and other debate on what the "pattern of gross violations" means.
I must say, I don't see it as a likely to be successful effort to eliminate disagreements among us on the application of the human rights statutes.
[Mr. Abrams' prepared statement follows:]
PREPARED STATEMENT OF HON. ELLIOTT ABRAMS, ASSISTANT SECRETARY FOR HUMAN RIGHTS AND HUMANITARIAN Affairs, Department of STATE
I APPRECIATE THE OPPORTUNITY TO MEET WITH THIS COMMITTEE TO DISCUSS OUR MUTUAL CONCERNS ABOUT HUMAN RIGHTS AND MORE PARTICULARLY TO EXPLAIN WHY THE DEPARTMENT OF STATE BELIEVES THAT THE PHRASE "CONSISTENT PATTERN OF GROSS VIOLATIONS" SHOULD NOT BE REVISED..
IN MAY OF THIS YEAR, I PREPARED A STATEMENT ADDRESSING THIS QUESTION WITH RESPECT TO THE INTERNATIONAL FINANCIAL INSTITUTIONS ACT WHICH I BELIEVE IS APPROPRIATE TO REPEAT HERE WITH SOME PERTINENT ADDITIONS.
THE CURRENT FORMULATION "CONSISTENT PATTERN OF GROSS VIOLATIONS" IS TAKEN FROM THE UNITED NATIONS COMMISSION LANGUAGE AND IS NOW FOUND IN A NUMBER OF U.S. STATUTES. THE CHANGE OF LANGUAGE IN THE INTERNATIONAL FINANCIAL INSTITUTIONS ACT WOULD LEAD TO CONFUSION AND WOULD MEAN THAT RELEVANT U.S. STATUTES WOULD CONTAIN VARIOUS STANDARDS.* END QUOTE
I WOULD ADD PARENTHETICALLY HERE THAT THIS PHRASE IS AN ELEMENT IN STANDARD LEGAL USAGE REGARDING INTERNATIONAL HUMAN RIGHTS. "CONSISTENT PATTERN OF GROSS VIOLATIONS" DERIVES FROM RESOLUTION 1503 OF THE UN ECONOMIC AND SOCIAL COUNCIL, AND IT HAS BEEN USED ANNUALLY BY ORGANIZATIONS IMPLEMENTING THAT RESOLUTION AND IN SPECIAL REPORTS THE UN AS WELL.
IT IS, OF COURSE, A KEY ELEMENT IN SECTION 116 (A) OF THE U.S. FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, WHICH PROVIDES THAT NO ASSISTANCE MAY BE PROVIDED TO GOVERNMENTS WHICH ENGAGE IN A
* SEE ATTACHMENT FOR STATUTES INVOLVED