tion based on race. The Government of South Africa will remain in violation of its human rights obligations under the charter as long as this participation is denied. We, further, must persist vigorously to seek an end to the use of violence and force by the Government of South Africa to maintain apartheid. Such practices could, in turn, lead to violence by the victims of apartheid. We look forward to a South Africa in which race, creed, or color form no basis for distinction and in which fundamental human rights and freedoms are guaranteed to all.

U.S. Policy Toward South Africa: Hearings before the Subcomms. on International Economic Policy and Trade, on Africa, and on International Organizations of the House Comm. on For. Affairs, 96th Cong., 2d sess. (1980), pp. 263, 265, 274-276; Dept. of State Bulletin, Vol. 80, No. 2043, pp. 56, 58-69; Dept. of State, Human Rights in South Africa, Current Policy No. 181 (1980), pp. 3-4.

See, also, "South African Apartheid", GIST (“a quick reference aid on U.S. foreign relations"), Apr. 1980, to be found, as well, at Dept. of State File No. P85 0162-1891. On Sept. 9, 1985, President Ronald Reagan signed Exec. Order 12532, “Prohibiting Trade and Certain Other Transactions Involving South Africa", in which the President put in place a number of measures to dissociate the United States and its nationals from the South African Government's policy and practice of apartheid.

Sec. 2 concerns the applicability to the South African operations of U.S. nationals of fair labor principles (based upon those originally formulated in 1977 by Rev. Leon Sullivan and generally referred to as the "Sullivan code" or the "Sullivan principles"), which are set out in sec. 2(c). Sec. 2(a) states that the majority of U.S. firms in South Africa have voluntarily adhered to these principles and that U.S. policy is to encourage all to do so.

Sec. 2(b) prohibits any U.S. department or agency from interceding after Dec. 31, 1985, “with any foreign government regarding the export marketing activity in any country" of any U.S. national employing more than 25 individuals in South Africa who does not adhere to the fair labor principles set out in sec. 2(c) with respect to that national's operations in South Africa. The Secretary of State is to promulgate regulations and procedures to ensure that such nationals may register that they have so adhered. The principles, set out in sec. 2(c), follow:

(1) Desegregating the races in each employment facility;

(2) Providing equal employment opportunity for all employees without regard to race or ethnic origin;

(3) Assuring that the pay system is applied to all employees without regard to race or ethnic origin;

(4) Establishing a minimum wage and salary structure based on the appropriate local minimum economic level which takes into account the needs of employees and their families;

(5) Increasing by appropriate means, the number of persons in managerial, supervisory, administrative, clerical, and technical jobs who are disadvantaged by the apartheid system for the purpose of significantly increasing their representation in such jobs;

(6) Taking reasonable steps to improve the quality of employees' lives outside the work environment with respect to housing, transportation, schooling, recreation, and health;

(7) Implementing fair labor practices by recognizing the right of all employees, regardless of racial or other distinctions, to self-organization and to form, join, or assist labor organizations, freely and without penalty or reprisal, and recognizing the right to refrain from any such activity.

Fed. Reg., Vol. 50, No. 175, Sept. 10, 1985, pp. 36861, 36862-36863.

Under sec. 2(d) U.S. nationals referred to in sec. 2(b) are encouraged to support the right of all businesses, regardless of the racial character of their owners or employees,

to locate in urban areas and to influence other companies in South Africa to follow the fair labor principles, ante, by supporting the freedom of mobility of all workers, regardless of race, to seek employment opportunities wherever they exist and by providing for adequate housing for employees' families near the workplace.

Sec. 3 of the Order requires the Secretary of State and the head of any other U.S. department and agency carrying out activities in South Africa to take necessary steps to ensure that the labor principles listed in sec. 2(c), ante, are applied to their South African employees. Sec. 4 requires them, in procuring goods or services in South Africa, to make affirmative efforts to assist enterprises that are more than 50 percent beneficially owned by persons in South Africa disadvantaged by the apartheid system. Sec. 116 of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151n, "Human rights and development assistance", provides in par. (e)(1) for the use of development assistance funds to carry out programs and activities that will "encourage or promote increased adherence to civil and political rights, as set forth in the Universal Declaration of Human Rights", in countries eligible for development assistance. The Department of State Authorization Act, Fiscal Years 1984 and 1985, P.L. 98-164, approved Nov. 22, 1983, 97 Stat. 1052, authorized in sec. 1002(a)(1) use of $3 million for such purposes in each of those fiscal years. Par. (e)(2)(A) of sec. 116 of the Foreign Assistance Act of 1961, as amended, added by sec. 1002(a)(3) of P.L. 98-164, directed that of the amounts made available to carry out sec. 116(e), amounts of $500,000 for Fiscal Year 1984 and $1 million for Fiscal Year 1985 were to be used for "grants to nongovernmental organizations in South Africa promoting political, economic, social, juridical, and humanitarian efforts to foster a just society and to help victims of apartheid."

The International Security and Development Cooperation Act of 1985, P.L. 99-83, approved Aug. 8, 1985, 99 Stat. 190, 261, provided in sec. 802(d), “Human Rights Fund for South Africa", that not less than 35 percent of the amount allocated for that Fund under the Foreign Assistance Act of 1961, as amended, for each Fiscal Years 1986 and 1987 was to be used for

direct legal and other assistance to political detainees and prisoners and their families, including the investigation of the killing of protesters and prisoners, and for support for actions of black-led community organizations to resist, through non-violent means, the enforcement of apartheid policies such as

(1) removal of black populations from certain geographic areas on account of race or ethnic origin,

(2) denationalization of blacks, including any distinctions between the South African citizenships of blacks and whites,

(3) residence restrictions based on race or ethnic origin,

(4) restrictions on the rights of blacks to seek employment in South Africa and live wherever they find employment in South Africa, and

(5) restrictions which make it impossible for black employees and their families to be housed in family accommodations near their place of employment.

Exec. Order 12532, ante, increased the authorized amount to be used for these purposes to $1.5 million for Fiscal Year 1986.

By a notice dated Sept. 4, 1986, President Reagan announced that the national emergency declared with respect to South Africa by Exec. Order 12532, Sept. 9, 1985, must continue in effect beyond Sept. 9, 1986, and that additional measures would be considered to eliminate apartheid and encourage negotiations for peaceful change in South Africa. Fed. Reg., Vol. 51, No. 173, Sept. 8, 1986, p. 31925.

In regard to the Sullivan Code, or Principles, see Dept. of State Bulletin, Vol. 85, No. 2103, Oct. 1985, p. 1; Dept. of State Library, International Relations Dictionary (2d ed., 1980), p. 67; and U.S. Policy Toward South Africa: Hearings before the Subcomm. on Africa of the House Comm. on Foreign Affairs, 96th Cong., 2d sess. (1980), pp. 416-417.

Inter-American Commission on Human Rights

Exhaustion of Local Remedies

In 1979 the International Human Rights Law Group, on behalf of the National Council of Churches, filed a complaint with the InterAmerican Commission on Human Rights, regarding applications for political asylum by Haitian nationals in the United States who were seeking to avoid deportation. The complaint (No. 3228, Acceus Serrant, Lucien Calixto, et al.) charged the United States with violating the terms of the United Nations Protocol Relating to the Status of Refugees, the American Declaration on the Rights and Duties of Man, and the American Convention on Human Rights, and requested the Commission to undertake an on-site investigation of the alleged violations. The complaint conceded, however, that the individuals whose rights had allegedly been violated had not exhausted their remedies under United States law.

A memorandum from the Department of State to the Commission, dated February 1, 1980, directed its attention to the pending class action suit, Haitian Refugee Center et al. v. Civiletti, No. 79-2086-CivJLK (S.D. Fla.) (see this Chapter, §4, ante), and stated that the complaint was inadmissible, therefore, either under the Commission's governing Statute and Regulations or as a matter of general international law, for failure of the complainants to exhaust their domestic (local) remedies. The United States took the position that the Commission could not waive the requirement for exhaustion of local remedies, as the complainants had requested, in order to consider the complaint. Nevertheless, the memorandum continued, because of Secretary Vance's invitation in 1977 for the Commission to carry out on-site investigations in general within the United States (see, post), United States authorities would facilitate any Commission decision to observe Immigration and Naturalization Service operations in Miami-which were already being witnessed by representatives of the United Nations High Commissioner on Refugees as part of the Department of State's review of Haitian asylum requests. Because of the complainants' failure to exhaust local remedies, however, any observations that the Commission might make after having viewed those operations would not constitute findings of fact on any issues being litigated.

The major portion of the memorandum of the Department of State follows:

The only allegations made in the present complaint which do not appear in the lawsuit concern certain kinds of intimidation during interviews. The complaint filed in Miami [Haitian Refugee Center,

ante] alleged that the INS had conducted asylum interviews "in an arbitrary and oppressive manner" but did not suggest that any of the interpreters were personally associated with the Haitian Government or draw the conclusion that applicants had been "coerced" to accept voluntary departure. These too are serious allegations which can be raised within the U.S. legal system.

The present petition parallels the court action in another sense as well. It requests that the Commission take "immediate interim action to ensure that Haitian nationals presently within the U.S. and seeking asylum are not returned to Haiti . . . ." The Haitian Refugee Center, however, has already asked the Federal District Court in Miami to issue a preliminary injunction to prohibit the deportation of any class members pending conclusion of the litigation. The United States does not know what kind of interim action petitioners may expect of the Commission. Neither the Commission's Statute nor its Regulations lay a foundation for such a request, and the United States would note that even under the American Convention on Human Rights the Commission does not have such authority.5 Only a court is competent to enjoin specific action, and the court in Miami has recently concluded hearings on the request for a preliminary injunction which, if granted, would provide the relief petitioners seek...

In view of the fact that petitioners in this case are asking the Commission to investigate and render a judgment on matters presently in the initial stages of litigation in U.S. court, the United States believes that their arguments for waiving the exhaustion of remedies requirement demand especially close scrutiny. For the reasons given in the following pages, the United States is of the view that the Commission cannot waive the exhaustion requirement in this case to admit the petition for consideration.

Nevertheless, with respect to the request for an on-site investigation, the Commission will recall that, at the Seventh Regular Session of the OAS General Assembly, Secretary Vance extended it an open invitation to carry out on-site investigations within the United States at times and places of its choosing. Should the Commission decide, for whatever reason, that the situation of Haitian refugees in this country warrants on-site observation, U.S. authorities will do everything they can to facilitate its accomplishing that objective. Representatives of the United Nations High Commissioner on Refugees have already witnessed the processing of many Haitian asylum cases in Miami as part of the Department of State's review of them. However, because petitioners have not exhausted domestic remedies, the United States would expect that any observations the Commission might make after having seen INS operations in Miami would not constitute findings of fact on any of the issues in litigation.

I. Case No. 1684 [Torture in Brazil; see post] is not a precedent

The one specific case petitioners cite to show that the Commission may waive the exhaustion requirement is a case involving Brazil on which it adopted a resolution in 1972. Petitioners argue that this case demonstrates the Commission's practice of distinguishing between "general" and "individual" cases of alleged viola

tions and its waiving the exhaustion requirement for those falling in the former category. Minutes of the Commission record the fact that a majority of its members found Case No. 1684 to be a "general" case of violations of human rights to which they did not have to apply the requirement of Article 9(bis)(d) of the [prior] Statute relative to the exhaustion of remedies. In considering the case, however, the Commission did not waive the exhaustion requirement under the so-called "special procedure" which will be described in more detail below. Rather, it took cognizance of the complaint under the more general provisions of Article 9 of the [prior] Statute. Its resolution on the case did not represent a decision on the merits of the petitioners' allegations. The general/individual dichotomy, if actually applied in this case, did not have the result which petitioners seek in their case.

II. The Commission's Governing Documents Do Not Provide for Waiver of the Exhaustion Requirement as Requested by Petitioners

Petitioners argue that because they are presenting a "general" case of alleged violations, the Commission should waive the exhaustion of remedies requirement. Leaving aside the question of whether the situation they describe should be considered "general" for any purpose, the United States would point out that the language of neither the present nor the prior Statute suggests the distinction which complainants make between different classes of communications. The prior Statute authorized the Commission "to examine communications submitted to it. . . and to make recommendations . . . " after having verified that applicable domestic remedies had been exhausted. The language implies uniform treatment for all communications addressed to the Commission. The present Statute retains this language with regard to OAS member states which are not yet parties to the American Convention on Human Rights. With regard to States Parties, however, it cross-references the more specific provisions of the Convention. Reading Articles 44 and 46 of the Convention together, it would appear that whenever a person, group of persons, or nongovernmental entity denounces a violation of the Convention by a State Party, the Commission may not admit the communication until it verifies that domestic legal remedies have been pursued and exhausted. The exceptions to this rule contained in paragraph 2 of Article 46 do not include any provision for "general" cases. Thus, the presumption derived from a reading of the Statutes is plainly against the interpretation which petitioners seek.

The Commission's Regulations [its 1967 Regulations, still in force at the time the United States memorandum was filed; see, post] do not make such a distinction either. Articles 53 and 54, which follow from and amplify Article 9(bis) of the prior Statute, plainly establish the need for the Commission to verify the exhaustion of domestic remedies before examining communications which denounce violations of any of the seven rights proclaimed in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man. As the present complaint charges the United States with violation of three of these