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

94. Action Memorandum From the Assistant Secretary of State for International Organization Affairs (Maynes), the Legal Adviser (Hansell), 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 Director of the Policy Planning Staff (Lake) to the Deputy Secretary of State (Christopher)¹

Washington, November 30, 1977

SUBJECT

• Human Rights Resolution in UNGA

Issue for Decision

Whether the U.S. should vote against or abstain on a draft resolution in the UN which sets forth guidelines for future work within the UN system with respect to human rights questions or, alternatively, join in a consensus adopting the resolution. The vote will likely take place on December 1.

Essential Factors

Under an agenda item entitled, “Alternative approaches and ways and means within the United Nations system for improving the effective enjoyment of human rights and fundamental freedoms,” Iran proposed a draft resolution which concentrates on collective rights at the expense of individual rights. Subsequently, the co-sponsors accepted some Western amendments, so that the present draft resolution (at Tab 1)² has now gained the co-sponsorship of a few Western States (New Zealand, Finland and Sweden) and an apparent willingness to go along with a consensus by most other Western States. USUN informs us that if there were a vote, the UK, Japan, Ireland and possibly the Netherlands, would abstain, while most other Western States would vote yes. None, however, are planning to call for a vote.

An additional factor is that the vote on the UN resolution to establish the High Commissioner for Human Rights will come up immediately after the vote on the Iranian resolution. All bureaus recognize that the text of the Iranian resolution will significantly influence the future mandate of the High Commissioner if that Office is established—and that the vote on the Iranian resolution may influence whether that Office is established.

We are requesting USUN to seek further amendments to the resolution, but this memorandum assumes it will not succeed.

The Options

Option 1—That we call for a vote and vote against or abstain on the Iranian resolution. While we are convinced that the resolution warrants a negative vote, it is recognized that political considerations (particularly unity with allies) might call for the U.S. merely to abstain.

Those supporting this option believe that, while the Iranian resolution has been somewhat changed for the better since its introduction, the resolution is still seriously flawed and would result in material harm to U.S. efforts to protect individual human rights and also in substantial damage to U.S. economic interests in the North/South dialogue. The most basic of the problems in the resolution which leads to this conclusion are these:

(1) The heart of the resolution is operative paragraph 1(E), which provides that future UN work with respect to human rights should “accord or continue to accord priority” to the search for solutions to “the mass and flagrant violations of human rights” affected by situations such as apartheid, colonialism, aggression and threats against national sovereignty, refusal to recognize the right of every nation to exercise full sovereignty over its wealth and natural resources, etc.

The following paragraph (1(F)) states that the realization of “the New International Economic Order” (NIEO) is an essential element for the effective promotion of human rights and should also be accorded priority.³

The resolution thus unmistakably provides that, by its terms, future UN work in the field of human rights would accord priority status to collective, as opposed to individual, human rights and also accord priority to the achievement of “the NIEO.” We do not subscribe to the view that the achievement of any particular economic or political program, such as the NIEO, is essential before persons are accorded the human rights which are inalienably theirs. Nor can we accept that “mass” human rights take priority over the individual human rights set forth in the Universal Declaration of Human Rights and the UN Covenants. The view that the Iranian draft is intended to have these unfortunate results is reinforced by the co-sponsors’ rejection of most of the proposed Western amendments designed to mitigate and balance the text between references to both mass violations and violations of the person. To the argument set out under option 2 that “mass and flagrant” is the same standard as the “consistent pattern of gross violations” referred to in Resolution 1503⁴ and U.S. legislation, it need only be pointed out that U.S. legislation speaks of such violations as torture, cruel or degrading punishment or other flagrant denial of the right to “life, liberty and the security of the person.” The thrust of U.S. legislation is thus to protect the person and a consistent pattern of violations of the rights of the person is not equivalent to the collective, or “mass” rights which are the priority aim of the Iranian resolution. The co-sponsors’ rejection of proposed amendments makes this distinction clear. (Proposed amendments sent to USUN are contained in cables at Tab 2.)⁵

(2) Given the above, and the recognized influence of the Iranian resolution on the mandate of any eventual High Commissioner for Human Rights, the U.S. must register the strongest possible disagreement with the Iranian draft, which, particularly if adopted by consensus, would skewer the High Commissioner’s mandate so as to have that Office become another advocate of the NIEO and other favorite causes of the G–77 (colonialism, occupation, self-determination and “full sovereignty over wealth and natural resources”—the last being the code term for confiscation of foreign property), as well as causes of clear human rights concern, notably apartheid and racial discrimination. It should be noted that the NIEO is considered necessary not for the realization of full human rights but even for their promotion. The High Commissioner would thus be required to promote the NIEO as an element of the promotion of human rights.

(3) U.S. participation in a consensus for the Iranian resolution would provoke Congressional and other supporters of human rights who would see in this a marked retreat from the Administration’s position on individual human rights. This might stimulate more mandatory legislative structures, such as the recent Long amendments to the IFI legislation. Moreover, right-wing forces in the United States already are mounting a mail campaign against Senate advice and consent to ratification of the UN human rights Covenants on the ground that they do not incorporate the protection of private property of the Universal Declaration. If we support conditioning progress on human rights to furthering the NIEO, we shall fuel this campaign.

(4) The proposition, in preambular paragraph 9 and operative paragraph 1 (E), that refusal to recognize a State’s full sovereignty over its wealth and natural resources constitutes a “mass and flagrant violation of human rights” undercuts the U.S. position on the relevance of international law to expropriation of foreign property and runs counter to existing U.S. legislation which invokes penalties whenever international law standards are not met upon an expropriation. The U.S. voted against the Charter of Economic Rights and Duties⁶ particularly because we could not support the G–77’s view of permanent sovereignty over natural resources. Support for the Iranian resolution would brand our own position on this fundamental North/South issue as being a human rights violation. To say that international law can be read into the language of the resolution is to ignore the explicit rejection of such a reading over the past years by the G–77, as well as their rejection of a proposed amendment to the resolution along these lines. (The tenth preambular paragraph speaks of the “continuing existence of an unjust international economic order.” This characterization goes far beyond what the U.S. has previously agreed to and would also have adverse implications for North/South negotiations.)

(5) The Universal Declaration of Human Rights was adopted by the UN with the abstention of the Soviet bloc. A consensus adoption of the Iranian resolution would allow its proponents to argue that the resolution has greater international support than the Universal Declaration and should govern interpretation of it.

Option 2—Accept the resolution by consensus, with a statement clarifying our position on troublesome aspects of the resolution.

Those supporting this option believe that the Iranian resolution is much improved over the original text and contains good language in support of individual human rights. Operative paragraph 1 (A), which is a perfectly acceptable statement of the U.S. position, provides:

“All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights.”

Operative paragraph 1 (C) states that all human rights and fundamental freedoms of the human person and of peoples are inalienable; and paragraph 1 (D) speaks of the “need for promotion of the full dignity of the human person.” In addition, an earlier reference to the resolution constituting a “revaluation” of UN work in the human rights area has been deleted. Thus, the resolution does not merely deal with “mass” human rights but supports individual human rights as well.

The priority to be accorded in paragraph 1 (E) would be to “the search for solutions to the mass and flagrant violations of human rights of peoples and persons affected by situations such as . . .” The operative term is mass and flagrant violations of human rights. The priority provision need not be read as being limited to the situations listed and thus, in the view of those who support this option, does not necessarily preclude other situations such as genocide or torture. It also should not be read as being confined to collective rights since the reference is to the human rights of “peoples and of persons.” In fact, it may be maintained that paragraph 1(E) essentially recognizes the existing situation in the United Nations human rights fora where the principal attention has been repeatedly given to the mass and flagrant violations of human rights such as those resulting from apartheid, racial discrimination, and colonialism. The United States itself has supported priority to this kind of human rights violation in its strong support for the so-called 1503 procedures, under which the Human Rights Commission has a special competence to study or investigate situations revealing a consistent pattern of gross violations of human rights. This, IO and HA maintain, is the same standard used by Congress in barring security assistance on human rights grounds in the Foreign Assistance Act.

Paragraph 1(F) would accord priority to the realization of the New International Economic Order as an essential element for the effective promotion of human rights. This paragraph does not elevate a particular category of rights over another, and merely reflects the overriding concern of the LDCs for economic development. Any problem we may have with this paragraph could be handled by an explanation of vote.

The references to the exercise of full sovereignty over its wealth and resources says nothing about the international law pertaining to expropriation situations. They can, therefore, easily be understood as being intended to apply in conformity with existing international law.

A negative vote or abstention on the resolution could prejudice the possibilities of establishing a High Commissioner for Human Rights and could displease those countries which have argued for amendments to the Iranian text to meet our concerns.

HA believes, with IO, that we can safely join in a consensus adoption of the Iranian text, which has been modified significantly to meet U.S. concerns. We can cover our remaining reservations in a statement after the resolution has been adopted. HA notes that the Iranian resolution will be adopted in any case, with the support of most countries which share our human rights positions and concerns. It need not be read as constituting the mandate for the future High Commissioner. The resolution establishing that Office constitutes a self-contained mandate.⁷

A positive U.S. gesture on this Iranian-Third World text should enhance support for what HA considers to be our primary objective, the creation of the post of a UN High Commissioner for Human Rights.

Recommendations

1. That we call for a vote on and abstain on the Iranian resolution, making an appropriate explanation of vote in either case (calling for a vote precludes adoption by consensus) (supported by L and EB).⁸

2. That we join in a consensus with a statement setting forth our problems with the resolution (supported by IO, S/P, USUN and HA). S/P believes our statement should place special emphasis on the overriding importance of the universal declaration of human rights.⁹

3. That if others call for a vote on the Iranian resolution, we then seek a paragraph-by-paragraph vote; if it is secured, we vote for the paragraphs which we find acceptable, abstain on paragraphs 1(E) and 1(F), and abstain on the resolution as a whole. We would make clear that we were using this procedure to emphasize our view that no one category of human rights should have priority over the others. If a paragraph-by-paragraph vote is denied, abstain on the resolution as a whole (supported by S/P as a fall-back).¹⁰

1. Source: National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 19, Human Rights—UN. Limited Official Use. Drafted by Bond and Schwebel. Bond initialed for Hansell, Katz, and Lake. Derian did not initial the memorandum. A notation on the memorandum reads: “SO, Original has gone into WC. DL [Denis Lamb].”
2. Tab 1, attached but not printed, is a copy of telegram 5020 from USUN, November 26.
3. The Declaration on the Establishment of a New International Economic Order was adopted on May 1, 1974, at the Sixth Special Session of the UN General Assembly, which was devoted to the problems of raw materials and development. (A/RES/3201/S–6) See also footnote 3, Document 207.
4. See footnote 3, Document 2.
5. Tab 2, attached but not printed, contains copies of telegram 273588 to USUN, November 15; telegram 275944 to USUN, November 17; telegram 5082 from USUN, November 30; and telegram 5020 from USUN, November 26.
6. The UN General Assembly adopted the Charter of Economic Rights and Duties of States (CERDS) on December 12, 1974. (A/RES/3281(XXIX))
7. On December 5, the Third Committee of the General Assembly approved a resolution sponsored by Cuba not to vote on the High Commissioner for Human Rights resolution, co-sponsored by Costa Rica, Denmark, Ireland, Italy, the Netherlands, Norway, Senegal, Spain and Venezuela. (Yearbook of the United Nations, 1977, p. 724) Earlier that day, Maynes sent Young a statement, under a December 5 covering memorandum, outlining the Department’s support for the resolution and the final version of a statement concerning the Iranian resolution. (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 19, Human Rights—UN)
8. There is no indication as to whether Christopher approved or disapproved the recommendation. In a December 1 memorandum to Christopher, Cooper reiterated the EB position, noting that paragraphs 1(E) and 1 (F) of the draft resolution “contain economic features with which we cannot agree and on which we have taken reservations in the past.” Cooper also expressed astonishment that HA agreed to the consensus position regarding paragraph 1 (E): “Except for racial discrimination this priority-setting paragraph excludes most of the human rights issues which I believe are integral to the American system of values and which I thought underlie President Carter’s human rights policy. These center on respect for the individual, especially if his right to be free of oppression by others (even if they are of the same race or nation), to be physically secure in his being, and to be free to express his views. The priority-setting paragraph 1(E) downgrades the human rights issues which, in my judgment, should be paramount. I do not understand our human rights policy if this paragraph is consistent with it.” (Ibid.)
9. There is no indication as to whether Christopher approved or disapproved the recommendation. However, in a December 3 memorandum to Vance, Christopher noted that Young had recommended, and Christopher and Maynes had concurred, that the United States should: “1. Abstain on the Iranian resolution if it is brought to a vote by others. 2. If others do not demand a vote on the Iranian resolution, we would not do so, but would join the consensus with a statement expressing our reservations.” Vance indicated his agreement with this scenario. (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 7, Memoranda to the Secretary—1977)
10. There is no indication as to whether Christopher approved or disapproved the recommendation. The United Nations General Assembly adopted Resolution 32/130 on December 16 by a vote of 123 to 0, with 15 abstentions, including the United States.