Foreign Relations of the United States, 1977–1980, Volume II, Human Rights and Humanitarian Affairs

158. Briefing Memorandum From the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Derian) to the Deputy Secretary of State (Christopher)¹

Washington, undated

Human Rights “Sanctions” Memo of S/P²

Introduction

We concur with S/P’s desire:

—to explore new ways to reinforce positive human rights records, e.g., by channeling AID funds to governments with positive records; and

—to distance ourselves from security forces of governments which deny freedom of expression. (Here we would, in addition, adopt the same stance toward regimes which violate other civil and political liberties as well.)

However, we disagree with S/P’s proposals for general policy bias which would:

—restrict human rights evaluation of CCC, Ex-Im, and OPIC programs to the minimum required by law; and

—adopt a bias against taking human rights into account on IFI votes, once violations of the person have ended.

There is no easy way to assure a balance between our human rights objectives and other foreign and domestic policy considerations. But we believe that the undiscriminating sweep of the S/P approach would unnecessarily restrict our flexibility in devising the most appropriate human rights strategy. In contrast to the broad new³ policy urged by S/P, we favor continuing to apply the guidelines already in PD–30 and applicable legislation on a case-by-case basis. This is more likely to permit decisions to be made in a manner sensitive to the distinction between countries and the multiplicity of factors that affect our national interest.

Do our Actions Constitute “Sanctions?”

A decision to alter assistance programs, to consider our votes in the IFI’s and to administer government-supported investment and export programs in light of human rights policy objectives, among other foreign policy interests, is not a “sanctions” approach.

We are not obligated to support the transfer of public resources or to extend U.S. government assistance to investments or exports to every country in the world. We have a sovereign right and limited funds to condition our assistance on policy judgments which conform to our statutes and international standards of conduct. To do so openly, based largely on international obligations to promote human rights—including the freedom to participate in government (Article 21, Universal Declaration; Article 25, International Convenant, Article 23, American Convention)—is a far cry from seeking to prevent a democratically elected President from taking office or of adopting a covert policy of “destabilization”.

While it is true that Nixon also denied CCC and Ex-Im credits and worked in the IFIs to deny loans,⁴ we also went far beyond these actions by interfering with private commercial credit and conducting extensive covert political activities within Chile, including massive subsidization of the political opposition. Moreover, the anti-Allende program was conducted in secret while we were maintaining a public posture of correct relations; in contrast, our current policy toward Chile is open and scrupulously above board.

In addition there is an internal inconsistency in the S/P memo on this issue. S/P argues on page four that we should channel programs of bilateral assistance to countries with a good or improving human rights record, and, therefore, presumably away from countries with a bad record. If this is proper, then what difference is created when the program involves bilateral export credits which also contain concessional elements and whose availability is limited? This inconsistency is highlighted by the fact that Ex-Im and CCC are the upper-tier LDCs’ equivalent of bilateral economic assistance, from which they are being graduated.⁵

Restricting Human Rights Evaluation of Ex-Im, CCC, and OPIC Programs to the Minimum Required by Law

The S/P memo admits that the “minimum” approach would mean carte blanche for CCC credits—presumably nothing would prevent them from going to Cambodia or Uganda under this theory. It also would as a general rule exclude Ex-Im loans from human rights considerations. An Ex-Im loan could be denied only if violations of rights of the person were involved and only where the particular export could be used in such violations.⁶ Even if a denial was viewed as a positive step to convince another regime to restore freedom of expression, that judgment would not be allowed to affect our recommendation to Ex-Im.

In addition, other governments, the U.S. Congress and the American public view decisions to extend Ex-Im, OPIC and CCC loans to another country as a reflection of our relationship with that nation’s government. To argue that we should do the minimum required by law ignores the fundamental political nature of these programs.

The Argentine deputy foreign minister did not argue that the Allis Chalmers’ loan was vital economically. Rather, he said the GOA wanted the Ex-Im loan as an expression of U.S. political support.⁷ Starting up Ex-Im loans, OPIC and expanding CCC credits to Chile, or voting for bhn loans in the IFI’s would also communicate a signal of U.S. political support.

Adopting a Policy Against Taking Human Rights into Account on IFI Loans, once Violations of the Person Have Ended

Where an assessment of all factors in a given country convinces us that restricting a U.S. Government program is an appropriate and effective element of a strategy to promote respect for civil and political liberties, we should not be barred from that action. Even more important, where we believe that such action, (e.g. voting for an IFI loan to the Government of Chile) will undercut the policy objective of seeing democracy restored in that country, we should not be prevented by a broad policy guideline, from opposing that loan.

The problems inherent in S/P’s broad-brush approach are exemplified by the one specific case in which S/P attempts to apply its proposed rules—that of Chile. Aside from the political outcry, voting for IFI loans for Chile would create a serious moral dilemma. We have opposed such aid to Pinochet’s regime because it has committed numerous violations of rights of the person and civil and political liberties, including the torture and summary execution of many hundreds of political opponents. Violations of rights of the person have subsided, as Pinochet has stated, because “the national security no longer requires them.” In other words, they have fallen off because sufficient numbers of political opponents have been killed, terrorized or driven into exile. It would be ironic if our logic led us automatically to respond favorably to such “success” by supplying export credits and voting for IFI loans.⁸ This is particularly disturbing since the institutions of repression remain essentially in place.

Rights of the Person vs. Civil and Political Liberties

Rights of the person would become the only “legitimate” category of human rights violation which justifies a negative vote in the IFI’s or any restrictions on U.S. Government-financed economic programs. Yet this position conflicts with the PD, the PRM and, contrary to the memo’s assertion, it conflicts with the view of the British and the Scandinavians as to human rights and the IFI’s. A key element in their judgment is whether the country is one where democratic traditions and institutions have been voided. Down-playing civil and political liberties does not accord with the Secretary’s speech and our policy, or with the British and Scandinavian policy. Again, while it may take longer for changes to occur in the area of civil and political rights, that judgment does not mean we should handcuff ourselves in the use of those diplomatic tactics—including restrictions on aspects of our bilateral relationship—which we judge will promote the realization of those rights sooner rather than later.

Other S/P Arguments

The other arguments that S/P offers to support its restrictive guidelines are tactical in nature.

For example, S/P argues that “repressive governments will be more likely to improve their performance if they believe something short of suicide will bring a lifting of economic sanctions.” Translated, the argument amounts to this: “A government is less likely to stop violations of the person, if it believes that economic aid will be restored only when it also adopts democratic institutions.” This translation reveals a hidden premise in the argument—that if a government stops category one violations,⁹ but has not restored political rights, then the U.S. will not make any positive response to the improvements. In fact, we can and do respond in positive ways. Our exact stance will be a function of the degree to which the institutions of repression remain intact, the history and traditions of the country, and other factors associated with the specific case. All of this illustrates why this tactical argument calls for continuing to make decisions on a case-by-case basis, taking human rights into account, rather than adopting a general rule against doing so. The point is that we need not, in every case of this sort, adopt a general rule against taking human rights into account in every case when category one violations have ceased.

With respect to export credits, there is no doubt about the validity of S/P’s argument that denials on human rights grounds have aroused some business opposition to the human rights policy, especially in the wake of the Ex-Im disapproval of the Allis Chalmers loan. HA is both aware and concerned that the human rights policy be implemented in a way that does not erode crucial domestic political support for it. But we need to recognize that positive action on the Allis Chalmers loan would have aroused complaints from Congressional supporters of the human rights policy. We need to continue to monitor this situation closely. However, it is premature, at this point, to conclude that the domestic political problem is so serious that we should totally eliminate the human rights consideration from export credits for the minimum required by law.

When a decision is made to restrict an Ex-Im, OPIC, or CCC program, we believe a full oral briefing of a high official of the company in question should be conducted detailing the human rights violations which have prompted our actions. We should take the initiative to explain our decision.

Internal Security Forces

The S/P memo argues for a general avoidance of supplying the internal security forces of governments which deny freedom of expression to their critics. The concept is correct; the narrow delineation of only one relevant civil and political liberty is not. It conflicts as well with PD–30 and implies that security forces of governments which deny other democratic institutions beyond speech and press, should not be generally excluded from receiving U.S. material and financial support.

We are directed to avoid identification with repressive regimes by statute. A supply relationship with the local secret police or military forces which run the repression conflicts with the policy structure. It also conflicts with PD–30, paragraph 6.

Positive Promotion of Human Rights

We concur with S/P’s view that more should be done to promote political freedom through positive legislation revising the foreign assistance program, a separate fund which would be identified as a “Special Development Fund” which would be restricted to countries which consistently respect human rights, including fundamental freedoms, or those which have taken far-reaching strides recently to institutionalize the protection of the full range of human rights. Some portion would be discretionary to permit the Administrator to respond during the year to significant developments.

1. Source: Carter Library, National Security Affairs, Staff Material, North–South Pastor Files, Subject File, Box 56, Human Rights: 6–12/78. Confidential. Drafted by Schneider on August 19. An unknown hand initialed for Derian.
2. Attached to Document 157.
3. An unknown hand circled the word “new.”
4. An unknown hand placed an open bracket before the word “Ex-Im.”
5. An unknown hand placed a close bracket after the word “graduated.”
6. An unknown hand placed a horizontal line and wrote “not so” in the left-hand margin next to the portion of this paragraph that begins with the word “export” and ends with the word “denial.”
7. Reference is to the Department of State’s veto on human rights grounds of an Allis Chalmers Ex-Im-financed loan to Argentina to enable the Government of Argentina to purchase turbines for a hydroelectric project. In telegram 161509 to Buenos Aires, June 24, the Department reported that Deputy Foreign Minister Allara met with Newsom and Schneider in Washington on June 23. With regard to the veto, “Allara mentioned Eximbank cases involving Boeing and Allis Chalmers, commenting that Argentina can finance its needs but that Eximbank policy has ‘profound political significance.’” (National Archives, RG 59, Central Foreign Policy File, D780263–0255)
8. An unknown hand bracketed the portion of the paragraph beginning with the word “The” and ending with the word “loans.”
9. Reference is to the first of the three categories of human rights violations that Vance set forth in his Law Day speech; see Document 39.