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implemented the applicable statutes in a manner consistent with their letter and intent.
The Department's Country Reports on Human Rights Practices for 1981 and for 1982 have been as frank and as informative, and we believe more so, than any ever prepared. They provide readers with a comprehensive and objective picture of the human rights situation in each country of the world. The Reports are a tool we refer to frequently in assessing human rights standards.
In deciding what to recommend on individual questions of assistance, HA distinguishes not only on the basis of the human rights situation in the country concerned, but also the type of assistance under consideration. For example, while HA might recommend approval of military assistance to country X, simultaneously HA might recommend against providing it police equipment or crime control and detection equipment. Each case is considered on its own merits, and weighed carefully at all levels. This would be a good example of how this Administration pursues a policy of incorporating human rights considerations into assistance programs even in cases where we may not believe that a consistent pattern of gross violations exists. This also reflects this Administration's commitment to utilize U.S. assistance programs to promote human rights and to distance the U.S. from violations of human rights, even in situations where we do not believe that a consistent pattern of gross violations exists and where security consideration must also be fully taken into account. The Interagency Working Group on Human Rights and Foreign Assistance, which is co-chaired by officers in the Bureau of Human Rights and Humanitarian Affairs and the Bureau of Economic and Business Affairs, considers human rights practices in every country for which bilateral aid and/or multilateral development bank loans are being planned. Thus the Departments of State, Treasury, Defense, Commerce, Agriculture, and Labor, as well as AID, OPIC, and EXIMBANK all have an opportunity to be heard. Within State, the five regional bureaus and several functional ones, including the Office of the Legal Advisor, all have the opportunity to be heard.
The Working Group considers whether the assistance in question can be justified on the basis of the recipient's human rights record and, if not, whether it meets the "basic human needs" criteria which allows an exception.
Human rights developments in a country are followed daily not only by the "desk" officers in the geographic bureaus which are responsible for observing the full range of a country's affairs, but by geographic officers within HA itself, whose full focus is on the developing human rights situation. HA also has officers seized with the questions of economic and military assistance and multilateral, including U.N., affairs.
The decisionmaker is thus provided with current and past human rights history as well as concerned interagency, congressional, public and media judgments.
In 1981 the Office of the Legal Advisor discussed with us the subject of "consistent pattern," to wit:
"Any Executive Branch interpretation of this term will ultimately be judged by whether the interpretation can be credibly maintained in light of the purposes of the Congress in enacting 502B and general public consensus about the existence and value of specific human rights. Nevertheless, it is clear from the plain meaning of the words of 502B that 'consistent pattern' means a situation in which more than isolated unrelated violations of exceptional severity occur and that ‘gross' violations means violations of exceptional severity or quantity. It is difficult to further clarify this meaning of the term except with reference to concrete fact situations It is clear from the language and purpose of Section 502B that it is intended to disassociate the United States from human rights violations by foreign governments, not merely from the statements of those governments.'
* * *
On February 9, 1976, the General Counsel for AID quoted in a footnote an opinion of the Department of State as follows:
"Consistent.' This term can provide particular difficulty. Webster's Collegiate Dictionary (1963) provides these meanings:
'Consistent. 1: possessing firmness or coherence. 2: agreeing with itself or something else: Compatible b: uniform throughout. 3: living or acting conformably to one's own belief, professions, or character.'
"With respect to patterns of human rights violations, it seems reasonable to consider that we are talking both about a significant range of the kinds of Governmental acts or omissions that may violate human rights. A finding that a consistent pattern exists would tend to refute assertions by the country concerned that violations which occurred were the acts of unauthorized officials and at variance with official policy."
We are also attaching a September 10, 1981 response from the Assistant Secretary of State for Congressional Relations, Richard Fairbanks, to Chairman Jerry M. Patterson of the Subcommittee on International Development Institutions and Finance, Committee on Banking, Finance, and Urban Affairs of the House of Representatives, on the same subject.
DEPARTMENT OF STATE, Washington, D.C., September 10, 1981.
Hon. JERRY M. PATTERSON,
DEAR MR. CHAIRMAN: In response to your letter of August 3 to the Secretary, I am pleased to forward to you the enclosed answers to the additional questions on the topic of human rights and votes in international financial institutions which was the subject of your Subcommittee's hearings on July 21.
I trust that this material will be useful to the Subcommittee. If I can be of further assistance please let me know.
Assistant Secretary for Congressional Relations.
QUESTIONS SUBMITTED BY HON. JERRY M. PATTERSON
Question. What time horizon does the Department of State use in determining whether a "consistent pattern" of gross human rights violations exists in a country? Mr. Johnson indicated, during his testimony, that a long time horizon is used, insomuch as improvements from an earlier period are used to assess current events. Mr. Palmer indicated, on the other hand, that a short time horizon can be used, as he said that "the human rights situation in (some) countries may be quite different in a couple of months." How much time does the Administration believe it takes to make or break a pattern?
Answer. The Department has not established a blanket pre-set time within which to gauge whether governments may be considered to have engaged in a consistent pattern of gross violations of human rights. The contrasting remarks of Mr. Johnson and Mr. Palmer reflect that it would serve no useful purpose to establish an inflexible benchmark which has little relevance to the actual circumstances of specific situations. Mr. Palmer's statement reflected the possibility that substantial changes in some countries' human rights practices can occur in a relatively short space of time. Mr. YATRON. Thank you.
Mr. LEACH. Thank you, Mr. Chairman.
Let me first say that the two of you are most consistent and articulate in recognizing responsibility. Usually the answer to any question of where the buck stops is elsewhere. I appreciate that.
This brings to mind a serious question which is, if we change the law by dropping the word consistent, will that change your judgment in terms of the law on how you approach your recommendations to the Treasury Department or to the Secretary of State on human rights issues as they relate to foreign aid or loans?
Mr. ABRAMS. I have to say yes and no, and let me just explain why. I don't think that it really gives us much greater insight into how to apply the law to the specific cases of country x or country y. I think probably the press, others in Congress, people in the administration would conclude that this was a sign of annoyance with regard to some of these votes, so the next time a vote came, say, for an extension of foreign aid, people would say: "Well, are we going to get into trouble on the Hill if we do this, remember there was a hearing on the word consistent and so forth."
I would not argue that there will be no possible impact, but I think the impact would really be more political, if I could put that way, than it would be logical, because I find it very difficult to apply a term that is that vague. I don't think that the definition, for example, of violations is entirely clear, as to what constitutes a violation, or a consistent pattern of violation, what is a consistent pattern. There is a lot of vagueness here.
If you look back at apparently unprotested decisions in the Carter administration, it makes you wonder what they had in mind in those days, and it is confusing. I don't think any intellectual light is shed by removing the word consistent, although, to be candid, I think it would be seen as some reflection of dissatisfaction.
Mr. LEACH. I appreciate your candor and also your assessment that there are always judgmental connotations to the use of such words as consistent.
Let me ask you some questions relating to the U.N. You point out that the phrase has been used in the United Nations. Has the U.N. defined the term "consistent pattern" and what countries have been identified as being consistent pattern violators? Are those the same countries that you believe are engaged in a consistent pattern of violations, and are there liabilities as well as advantages to using the terminology?
Mr. ABRAMS. To give you a fuller answer, I am going to have to do some homework and supply it for the record.
[The subsequently submitted information follows:]
To our knowledge, the UN Human Rights Commission (UNHRC) has never identified any country as engaging in a "consistent pattern of gross violations of internationally recognized human rights," under the procedures established by ECOSOC Resolution 1503 (XLVIII) or otherwise, nor has the United Nations ever adopted a definition of the term "consistent pattern" in that phrase. It is our understanding that, instead, delegations have generally regarded the phrase to require no elaboration and have argued for or against its application in specific situations on the basis of their evaluation of information available to them.
While no country has been identified by the UN as being a "consistent pattern violator," the UNHRC has called at various times for Special Rapporteurs to examine and report publicly on the situations in Bolivia, Chile, El Salvador, Equatorial Guinea, Guatemala, Iran and Poland. (The UNHRC asked the UN Secretary General to appoint the last two while it named the others itself.)
In addition, the UNHRC appointed Working Groups on Vietnam (1963), Chile (1975), South Africa (1967) and the Israeli-Occupied Territories (1968); those on Vietnam and Chile no longer exist.
In 1979, the UNHRC Chairman for the first time disclosed publicy the names of the countries considered at that session under the procedures of ECOSOC Resolution 1503, but did not disclose the nature of the complaints against them nor the UNHRCD decisions regarding them. The names of all countries considered prior to that date under the 1503 procedures are considered by the UNHRC to be confidential and remain so.
The fact that a country has been identified, beginning in 1979, means only that the Subcommission referred the case to the UNHRC and that the full Commission considered it; it does not indicate the nature of the Committee's decision. These countries are:
1979: Bolivia, Burma, Chile, Equatorial Guinea, Ethiopia, Indonesia, Democratic Kampuchea, Republic of Korea, Malawi, Paraguay, Uganda, and Uruguay.
1980: Argentina, Bolivia, Burma, Central African Republic, Ethiopia, Indonesia, Republic of Korea, Malawi,1 Paraguay, Uganda, and Uruguay.
1 Commission decision 10 (XXXVI), made public under paragraph 8 of ECOSOC Res. 1503 (XLVIII), including draft resolution adopted by ECOSOC as resolution 1980-81 on May 2, 1980.
1981: Afghanistan, Argentina, Bolivia, Central African Republic, Chile, El Salvador, Ethiopia, German Democratic Republic, Guatemala, Haiti, Indonesia, Japan, Republic of Korea, Mozambique, Paraguay, and Uganda.
1982: Afghanistan, Argentina, German Democratic Republic, Haiti, Republic of Korea, Paraguay, Uruguay, and Venezuela.
1983: Afghanistan, Argentina, German Democratic Republic, Haiti, Indonesia, Iran, Paraguay, Turkey, and Uruguay.
1983: Cases concerning the following States will be before the Commission at its session in 1984: Afghanistan, Albania, Argentina, Benin, Indonesia, Malaysia, Pakistan, Paraguay, Philippines, Turkey, and Uruguay.
This Administration has had human rights concerns in many of these countries and in many cases we continue to do so. However, there are countries that have not been similarly identified by the UNHRC for which we have serious human rights concerns as well.
We see the phrase "consistent pattern" as a common standard which guides us in making decisions on human rights issues and as such the phrase is an advantage. At the same time, we may have human rights concerns about governments whose conduct does not, in our opinion, equal this standard but which merits some U.S. action or gesture in the interest of promoting the observance of human rights or distancing the U.S. from such conduct. This in no way diminishes the utility of the standard, but suggests that overall U.S. human rights concerns encompass broader considerations beyond the standard.
Mr. ABRAMS. The term appears-I think it derives from resolution 1503 of the Economic and Social Council. The 1503 procedures are proceedings which are used in the Human Rights Commission to discuss privately-that is to say, resolutions of the full Commission are debated publicly-cases against one country or another. So that we would have available to us a track record on which countries have been cited as violators.
This would be of limited utility, because in the process at the U.N. the constant reference is to Western countries, and you will never find one against a number of Communist countries which we would consider to be violators. It would be useful to take a look at, although it will not provide much guidance. We will supply that for the record.
Let me just comment on the question of improvement. I understand the desire of the committee to clarify their view that the statute as written does not permit you to say that improvement should not be taken account of in this way. If it is your thought that by eliminating the word consistent you make it crystal clear that you don't want that to happen, then I would ask that you think seriously about why you don't want that to happen, because the main purpose of this is not to punish people, it is to get them to behave better. It is to improve their human rights performance.
There are going to be cases where recognizing improvements is probably the best way to get further improvements. I am sort of struck by the fact that everybody thinks that it is a terrible idea to recognize improvement by voting for IFI loans. I must stay that it strikes me as a terrific idea, and I wonder why the unanimity that sort of suggests that in all cases, at all times, we should never, ever recognize improvement by voting on IFI's.
Mr. LEACH. You are asking the question of the committee, which is a fair way of turning things around.
Let me just say that it certainly is valid within the whole spectrum of foreign affairs to use both carrots and sticks and generally it is preferable to use carrots. My concern and I think you have to recognize this, is that improvement alone is not a sufficient standard for improvement can sometimes define situations where ruth
less abuses of human rights continue. If there has been an abuse of congressional intent, I think that it has been by relying a little too strongly on the improvement criteria.
Probably the members of this and the other authorizing committees would not be totally opposed to using improvement as one human rights criteria, but there is concern that in specific circumstances the term improvement has been used to weaken the standard implied by the term consistent in such a way as to violate legislative intent. You do raise a valid point in the use of the carrot and stick, but the abuses have been on the other side of the issue.
Let me ask a question if I could, Mr. Chairman. You also point out in your statement that the current statutory language has worked well. I would ask where has it worked well? What specific actions have you taken to enforce section 502B, section 116, and other provisions of human rights law which use a similar standard?
Isn't it true that it has been country-specific provisions of law that have been necessary to assure that the spirit of section 502B is observed?
Mr. ABRAMS. I think not. I think the statute has had a real impact, but not perhaps in the direction its authors expected. I can't tell you what the authors expected.
What has not happened, and which we thought would, is we and the Carter administration would draw up a list of violators, and we could then post it and say, now we are not going to vote for these people, and we are not going to give them any aid.
What has tended to happen instead is the need to defend aid or votes against the consistent pattern of gross violations standard has made us turn away from votes if it is aid to countries because we didn't want to go out and have that hearing. The internal dynamics of the State Department being that it allows me to say: "If you want to go out there and testify that the country in question doesn't have a consistent pattern of gross violations, you go testify. I am not going." That tends to be the practical effect of it.
An example would be Guatemala under the Garcia regime, we didn't have a hearing on our aid to that regime, because we didn't give aid, that is the Carter administration didn't. That didn't mean that section 502B was not invoked, it was invoked and it barred aid to Guatemala.
It is hard to come up with a record of all the things that we didn't do because of the statute, but they are there. It has that kind of an impact within the executive branch.
Mr. LEACH. Mr. Chairman, I have a series of other questions that I would like to submit for the record.
If it is possible, I would ask you to respond to those in writing. I would just add that the Congress has left some doubt in the statute, and the Executive has made a point to maximizing its discretion by not using precise definitions. We are at a point in time where some clarification of definition would be well in order. Some of the questions that I will submit to you in writing are going to take some lawyer some work. I think they are very important ques