Foreign Relations of the United States, 1969–1976, Volume E–3, Documents on Global Issues, 1973–1976

249. Action Memorandum From the Legal Adviser (Leigh) to the Deputy Secretary of State (Ingersoll)¹ ²

Washington, March 19, 1975

Human Rights: Procedures for handling posts’ reporting under State 12320 and for taking account of Section 502B of the Foreign Assistance Act of 1961 as amended

The Problem

Interim guidance is needed by those who must put the reports under State 12320 (Tab A) to good use, take account of Section 502B of the FAA (Tab B) and generally consider how best to respond to human rights violations. From the procedures outlined below, and recommended for approval at this time, experience and review should lead to establishment of the best possible procedures.

Discussion

The basic guidelines were laid down in your letters of June 27 and July 28, 1974 to Chairman Morgan of the House Committee on Foreign Affairs. (See Tabs C and D).

In your letter of June 27, you referred to our UN Charter obligation to promote human rights, noted the complexity of finding what, consistent with other US commitments, could best discharge this obligation in specific cases and indicated some among the wide range of options to be considered. You announced our intention to keep Congress and the House Committee on Foreign Affairs informed of the facts about observance and nonobservance.

On July 28, you went on to report that our Embassies in aid recipient countries were communicating to their governments both the text of section 32 of the FAA of 1973 and the seriousness with which we regarded that section. You announced our intention of melding reporting and review requirements developing in relation to aid recipients with general human rights requirements affecting all countries. In this way, consideration of the human rights factors could be assured in the formulation of our foreign policy - including our assistance programs. You then reached the point to which the present guidance is addressed; you said:

“I am asking that early next year the geographic bureaus and others concerned report to me on significant human rights developments, by country and by important international bodies, with their recommendations for any desirable modifications of policy, new steps or new procedures.”

To achieve what you have requested, an instruction about reporting was sent to all posts on January 17, 1975 (Tab A) pursuant to your memorandum of August 28, 1974 (Tab E). At least eighty-five of the posts’ reports have now arrived. To use them to best advantage, the following procedure is proposed:

A. Bureau Reports to you.

(1) Each (Geographic) Human Rights Officer, in cooperation with the desks, IO/UNP, PM and the relevant Assistant Legal Advisers, will be responsible to his Assistant Secretary for seeing that:

(a) the 12320 report is reviewed promptly;

(b) any important additional information needed is promptly secured by cable from posts or from other sources;

(c) analytical memoranda are prepared on each country covering the following matters:

(i) summary of nature and extent—if any—of international and American (including Congressional) interest in and reporting on the country’s human rights problems over the past 5 or more years;

(ii) summary statement of way in which human rights and fundamental freedoms are treated by the government and people of the country. Constitutional and other legal guarantees— substantive and procedural—should be briefly summarized or referenced under each of the articles of the Universal Declaration (see Tab F) and the nature and extent of significant situations involving violations of these articles should be presented. Data should be keyed to post reports (both 1974 and 1975), and other supporting material (copies should generally accompany the analytical memoranda and might include, e.g. IAHRC Reports; (confidential) records before the United Nations Human Rights Commission; ICJ Reports; Amnesty International materials; major newspaper articles; etc.);

(iii) Preliminary statement about US responses to situations, whether under way or recommended. Responses to be considered are all those having some chance of helping promote human rights (e.g. discussion, representation, assistance to private groups—e.g. bar association, non-governmental organizations, ICRC, UNHRC,—exchange and aid programs, etc.).

This statement should be a very important basis of the report to you. If properly done, it should permit the Assistant Secretary to make his covering memorandum truly brief. Check lists of Government Offices and Agencies which might respond in various ways and of the theoretical range of possible responses are attached and will need refinement as the matter moves ahead. (Tabs G and H);

(iv) a brief separate discussion of reduction or termination of security assistance as a way of promoting human rights in the country in the sense of Articles 55 and 56 of the UN Charter;

(d) a report is prepared on significant relevant activities of regional bodies, if any; and

(e) a short covering memorandum is prepared from the Assistant Secretary to the Deputy Secretary identifying and commenting on important human rights problems and achievements. In this covering memorandum the Assistant Secretary should give his views on improving US responses both country by country and more generally, having regard for the full range of possibilities. In so doing, he should comment on any situations where present responses or lack thereof are impairing our relations with other countries, are earning us the distrust, or worse, of a majority or a significant sector of the people of the country concerned or of possible future governments, or are seen in the United States as inconsistent with our dedication to civil liberties, human rights and the dignity of the individual.

(2) In addition, as contemplated in your letter of July 28, IO, in cooperation with L and others, as may be appropriate, (e.g., T and H respecting US positions on studies under ECOSOC Resolution 1503), will submit a memorandum by important international bodies, reporting major developments and problems and making any appropriate recommendations.

B. Initiation of New or Increased Responses.

The memoranda submitted to you should have provided various alternatives for new responses that you may wish explored or undertaken in particular countries and areas.

The process of recommendation will necessarily be ongoing, the process of decision must involve trial and error. As a general rule, trial of a seemingly worthwhile response probably should not be delayed just to measure it against other alternatives remaining to be thought of, brought forward or carefully considered.

C. Taking Proper Account of Section 502B.

The text of Section 502B of the Foreign Assistance Act of 1961 as amended by the Act of 1974 is set out at Tab B.

PM has outlined a procedure that would permit that human rights factors be taken into account in planning and proposing security assistance. (Tab I).

Thus, when the Assistant Secretaries for the geographic bureaus have reported to you, PM—working with the Special Assistant for Human Rights, L, H and the geographic bureaus—will prepare recommendations for Under Secretary Maw’s and your approval, country-by-country, regarding alternatives for taking proper account of Section 502B. These recommendations will address, inter alia, the question whether more can be done in low key before it could be appropriate to withhold security assistance. In this way, it can be seen that no type of response will be judged in isolation.

Because of the tight time schedule for presentation of the FY 1976 Foreign Assistance Program, Mr. Maw is taking steps to ensure prompt receipt by T and PM of the necessary information and analyses on all security assistance recipient countries.

Legal opinions in human rights matters and particularly any relating to the application of Section 502B will ordinarily be given by the Legal Adviser on the basis of specific facts of a particular case. However, because they may be useful in the study and presentation of particular cases, certain general observations concerning the meaning and application of Section 502B have been formulated from the viewpoint of the Office of the Legal Adviser and are attached at Tab J.

Recommendation

Each of the foregoing recommended procedures is consistent with your two letters. The recommended special 502B procedures are designed for the special problems of that section. All procedures are to be provisional and subject to revision in light of experience.

I recommend that you approve the procedures outlined above on a provisional basis so that processing of reports, that are already beginning to come in, can proceed in an orderly fashion and we shall have the needed minimum guidance on 502B.

APPROVE [RSI initialed]
DISAPPROVE

1. Source: National Archives, RG 59, L/OA Files, Lot 99 D 369, Human Rights, General, 1975. Unclassified. Sent for information to PM, S/P, and AID. Drafted by Runyon; and cleared in H, AF, ARA, EA, EUR, NEA, and IO. Sent through Maw. Ingersoll approved the recommendation on March 31. Tab A is published as Document 247. Tab B is Public Law 93–559, 93rd Congress, S. 3394, December 30, 1974. Tab C is Document 237. Tab D is Document 240. Attached but not published at Tab E is an August 18, 1974 memorandum from Ingersoll to Department of State officials principally responsible for human rights reporting, which offered an interim assessment of the progress in analyzing country human rights reports submitted by posts. Tabs F, G, H, I, and J have not been found.
2. The memorandum recommended procedures for processing and analyzing country human rights reports submitted by posts.