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

86. Action Memorandum From the Assistant Secretary of State for Economic and Business Affairs (Katz), the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Derian), and the Deputy Administrator of the Agency for International Development (Nooter) to the Deputy Secretary of State (Christopher)¹

Washington, November 9, 1977

SUBJECT

• PL 480 Title I—Human Rights Reporting Requirements

Issue for Decision

The issue is when and how PL 480 Title I agreements should be amended to require that the food or proceeds directly benefit the needy. There basically are three possibilities: 1) apply this additional requirement only to countries specifically identified as gross human rights violators; 2) apply it to a limited number of human rights problem countries; or 3) apply it in all future Title I agreements.

A related but separate decision is what procedure should be followed for review of proposed Title I allocations.

Essential Factors

The issue arises due to the inclusion in PL 480 legislation of a new Human Rights amendment (Section 112).² That provision states in part that “no Title I agreement may be entered into with a country that engages in a consistent pattern of gross violations of human rights . . . unless such agreement will directly benefit the needy people in such country.” This will not occur “unless either the commodities themselves or the proceeds from their sale will be used to directly benefit the needy” and finally “the agreement shall specify how the projects or programs will be used to benefit the needy people.” Congressional committees may require the President to demonstrate that specific agreements will directly benefit needy people, and the President must submit an annual report to the Congress on steps taken to carry out Section 112. The statute refers only to agreements with governments engaged in a consistent pattern of gross violations, but the requirement could of course be imposed in agreements with any government.

All Title I agreements already include general “self-help” provisions under which recipient countries agree to undertake agricultural development projects and programs. Legislation directs the Executive Branch to consider particularly the extent to which self-help efforts “contribute directly to development progress in poor rural areas and to enable the poor to participate actively in increasing agricultural production.” Annual reports on self-help progress are required from recipient governments, and some monitoring of self-help project expenditures occurs. We do not, however, require recipient governments to demonstrate how food or proceeds will specifically help the needy.

EB View (supported by USDA)

EB believes that only agreements with countries identified as consistent and gross violators should be amended. Its reasoning is as follows:

—This is what Section 112 of the PL 480 Act requires. It is not necessary or desirable to go beyond the law to add reporting requirements for countries which are not gross violators.

—Some have argued that additional reports are needed to meet Congressional intent, and to indicate to Congress that the Administration takes the amendment seriously. EB does not agree. There is a clear division in Congress between human rights advocates and farm bloc Congressmen interested in expanding U.S. farm exports. This split on the issue creates a different, and more controversial, human rights climate for PL 480 than for other assistance programs. On the specific amendment in question, many Congressmen had serious reservations about including it in PL 480 and would not favor Administration action to apply it liberally. This being the case, EB does not believe any clear Congressional intent exists regarding implementation. The Administration can demonstrate to Congress other, more effective, actions to use PL 480 to promote human rights. These include, for example, the review process already initiated, appropriate demarches linked to Title I programs etc.

—Too many reports already are required under the PL 480 program, which take up a significant amount of staff time. In addition to “self-help” reports mentioned above, there are shipping and commodity arrival reports, new reports required regarding storage facilities and production disincentives, quarterly reports to Congress on planned programming, an annual report to Congress on global food assessments etc. Another reporting requirement will only add to the burden.

—EB’s primary concern, however, is that new PL 480 human rights reporting requirements will create serious new bilateral problems with recipient governments. If new reports are required of just a few human rights problem countries, we risk creating a “hit list” which would hurt our relations with those nations. Some recipient governments, knowledgeable about the legislation and Section 112, may not accept the additional reporting requirement as a condition for PL 480 assistance. This would place the United States in the awkward position of either having to agree to omit the report or to terminate PL 480. The HA position that agreements should be amended for all countries would be extremely inefficient and unfairly penalize innocent governments. In addition to adding to a reporting burden which already is excessive, it would likely complicate and delay PL 480 programing. This would adversely affect recipient country food distribution programs and lead to widespread criticism domestically and abroad.

—To be effective, reports on how food programs benefit the needy would have to be based on careful monitoring of recipient country food distribution and local currency allocation priorities. This would require a significant increase in AID mission activity in this area beyond what exists in most countries today. Such an expansion would represent a major departure from our current policy under which AID seeks to reduce its role in recipient country currency allocation decisions. AID’s experience, particularly during the period of local currency sales programs, has shown that such involvement can hurt our political and developmental objectives and lead to undesirable friction. EB does not believe we should go down that route again.

—Finally, EB has a continuing interest in Title I programs used for budgetary and/or balance of payments support purposes. Most programs promote these objectives to some extent; a few are implemented specifically for such purposes. Recent examples include allocations for Jamaica and Portugal to alleviate the difficult financial situation which those countries face. Requiring all, or even a few, governments to document that Title I directly benefits the needy would undermine this key aspect of the program.

In sum, EB shares AID’s view that a new requirement for all Title I agreements would be highly undesirable, but believes that new requirements for just a few problem countries would be equally bad. Our conclusion, noted above, is that the special requirement should be applied only when Title I food assistance is provided to a country identified as a gross human rights violator. In that case, the special provision and report are required by Section 112 of the PL 480 Act and we must, of course, comply.

AID View

AID believes applying the Section 112 requirement, that food or local currencies directly benefit the needy, to all Title I agreements, would not be a workable solution. It would strain our political relations with recipient countries, overburden the administrative systems of countries which do not have human rights problems, and could threaten the continuation of large and important programs such as Egypt.³

At the same time, AID recognizes HA’s argument that it would be difficult to limit the application of Section 112 to governments that are found to be consistent violators without establishing a “hit list”. The Administration could therefore reasonably apply Section 112 more broadly to governments about whose record there is a serious question. This is the standard now being applied by AID in its review of Development Assistance programs.

AID therefore proposes that when the Christopher Committee reviews PL 480 allocations at the beginning of each year it determine which governments are in the questionable category. PL 480 Title I sales agreements with those governments will then be written to include the conditions required by Section 112. Their wording would be carefully drafted to avoid accusations and yet make clear the intent of the legislation.⁴

Section 112 requires much more than reports from purchasing governments with human rights problems: the commodities or local currency proceeds must be used for specific identified projects and programs which directly benefit needy people, and the agreements must say how the projects and programs will do that. This directive is substantially different from current legal requirements and policy relating to Title I sales in general. Under that policy, as laid down by Congress, “emphasis” is to be placed on reaching needy people. We have not insisted that transactions be identified with specific programs or projects where a direct benefit to needy people can be shown. This approach allows an important degree of flexibility in programming for various purposes, within the basic stipulation that there be a needy people emphasis.

With the new Section 112, Congress clearly had the new requirements in mind only for governments where serious human rights problems exist. An attempt to apply the requirements to all agreements would require substantial changes in the terms now in general use in Title I agreements, reduce AID’s flexibility in negotiating these agreements, and create a significant impediment to the sale of American agricultural commodities which Congress did not contemplate. On the other hand, until specific violators are designated, the EB proposal will look like an inadequate response to Congressional intent.

As a practical matter, moreover, it is not possible to reserve judgment until after agreements have been entered into on what reports will be required from the purchasing governments. The governments can realistically report only on the basis of accounting systems set up and made operational well before the commodities are distributed or the proceeds generated.

The proposal to include the Section 112 provision in all agreements seeks to avoid public identification of troublesome countries and to permit the U.S. to use PL 480 to show displeasure with a lack of progress on human rights after an agreement is signed. The AID recommendation also allows these objectives to be met. By focusing on troublesome governments, the Executive Branch will not designate violators, and we shall always have ways of indicating displeasure—including, if necessary, adding Section 112 requirements to new PL 480 agreements that might be negotiated.

There is no approach open to the Executive Branch which will guarantee the secrecy of human rights problems of governments with which we deal. The problem-governments are aware that they have a problem. Congressional hearings and other public testimony, as well as press reports, will make it clear which countries are troublesome. In any case, the Executive Branch must account for measures it takes at least once a year.

The all-agreements proposal could raise public and Congressional suspicions about the Administration’s good faith in carrying out human rights measures. At a time when MODE restraints and AID “effectiveness” are important issues, it would further clog the system with additional manpower requirements and paper. The AID proposal, on the other hand, would impose an additional but manageable workload on purchasing governments, AID missions, Embassies, and Washington review offices by limiting the requirements to cases where a real effort must be made to assure adherence to the legislation.

HA View

While the current law requires that it must be demonstrated only in the case of gross human rights violators that the food or proceeds go to the needy, the Congress has made it clear that emphasis should be placed on the use of Title I proceeds to benefit the needy. It would, therefore, not be inconsistent with this general Congressional concern for the needy to require an accounting in all countries.

To single out only certain countries for application of Section 112 would signal to all that these are countries with serious human rights problems and thus create a “hit list” which would have repercussions in other policy areas and limit the Administration’s overall flexibility in pursuing its human rights strategies.

Using a Section 112 provision only for governments whose records are known to be troublesome at the time of negotiations could make it difficult to adjust to subsequent changes in the other countries. We might find ourselves in a position of not having required reports from a government where the situation has deteriorated, and we might have to explain this failure to Congress.

Imposition of a detailed reporting requirement in all agreements would place a heavy burden on AID missions and purchasing governments. It is, therefore, suggested that AID place a clause in all agreements requiring that the food and/or proceeds derived from the sale thereof be used to directly benefit needy people. To implement this provision, AID would tell most governments that only general statements are required. Our missions could be asked to evaluate these statements based on their general observation and knowledge of the programs.

In the case of governments with serious human rights problems, however, it could be decided in Washington at any time in the year that their human rights situation is sufficiently serious to demand a more detailed accounting. This could be done not only in the legislated area, relating to countries engaged in a consistent pattern of gross violations of human rights, but also with regard to other countries where serious human rights problems exist. Determinations on whether demands should be levied for these more detailed reports could be made through the mechanism of the Interagency Group, and eventually through the country evaluation plans.

Allocation Decisions

The Interagency Group reached a consensus that PL 480 Title I allocations should be reviewed by that group before the quarterly submissions to Congress.⁵ In addition, as agreements with human rights problem countries come up for negotiation during the year, the Interagency Group may be asked to review them for consistency with human rights criteria.

The Group strongly recommended that PL 480 allocations be considered as soon as possible in relation to other policy levers in the context of individual country evaluation plans.

Recommendations

Statutory Requirements

Option 1 (EB and USDA supports)

That only Agreements with countries identified as consistent and gross violators should be amended.

Option 2 (AID supports)

That Agreements be drafted to include the Section 112 requirements only for those governments about whose human rights record there is a serious question.⁶

Option 3 (HA supports)

That all Agreements be drafted to include the Section 112 requirements, but that implementation of the requirement that purchasing governments make reports to the U.S. be done on a selective basis to be determined as a result of interagency review of specific countries where serious human rights problems exist.

Allocation Procedure:

That the Interagency Group review allocations to all countries on a quarterly basis and, for individual countries with problems, again when agreements come up for coordination by the Interagency Staff Committee on PL 480.⁷

1. Source: National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 18, Human Rights—P.L. 480. Confidential. Drafted by Bova, Silverstone, and Ogden on November 5; concurred in by Schneider, Shakow, Butler, and Creekmore. Ogden initialed the memorandum on Katz’s and Creekmore’s behalf; Schneider initialed the memorandum on Derian’s behalf. Attached as Tab 5 to a November 23 memorandum from Oxman to Christopher.
2. Reference is to the International Development and Food Assistance Act of 1977, signed by the President on August 3, 1977 (P.L. 95–88; 91 Stat. 533).
3. Christopher bracketed this paragraph.
4. Following the October 14 meeting of the Interagency Group, at which the members discussed the P.L. 480 Title I reporting procedures, AID officials began drafting the AID response to the new reporting requirements. (Meeting minutes of the Interagency Group on Human Rights and Foreign Assistance; National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 17, Human Rights—II) Shakow sent Schneider an undated memorandum entitled “PL–480 Title I—Human Rights Reporting Requirements” under an October 16 covering memorandum. The AID Food for Peace Office sent Oxman a copy of Shakow’s memorandum under an October 26 note. (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 18, Human Rights—PL 480 II)
5. According to the October 14 minutes of the Interagency Group meeting: “With regard to the review procedure to be followed in the case of PL 480, Title I, it was suggested that the working group should review allocation lists on a regular basis prior to their submission to the Congress. At the time of review, the working group would be asked to identify potential problem cases. It would then be agreed that a subsequent review by the Inter-Agency Group must take place before agreements to these problems countries could be signed.” (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 17, Human Rights—II)
6. Christopher initialed his approval of the second option. A stamped notation reads: “NOV 9 1977.”
7. Christopher initialed his approval. A stamped notation reads: “NOV 9 1977.”