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and U.S,, Forei*gn Policy
THE MANNING J. DAUER PRIZE WINNER 1987
and'U.S. Foreign Policy
David P. Forsythe
UNIVERSITY PRESSES OF FLORIDA
University of Florida Press / Gainesville
3 4; q 0, Lf
Copyright 0 1988 by the Board of Regents of Florida All rights reserved
Material in chapter 3 has appeared in David P. Forsythe, "Congress and Human Rights in U.S. Foreign Policy: The Fate of General Legislation," Human Rights Quarterly (August 1987).
Library of Congress Cataloging in Publication Data
Forsythe, David P., 1941Human rights and U.S. foreign policy: Congress reconsidered
David P. Forsythe.
ISBN 0-8130-0885-9 (alk. paper)
1. Human rights. 2. United States-Foreign relations-19813. Legislative power-United States. 4. Executive power-United States. I. Title II. Title: Human rights and US foreign policy. K3240.4.1768 1988
UNIVERSITY PRESSES OF FLORIDA is the central agency for scholarly publishing of the State of Florida's university system, producing books selected for publication by the faculty editorial committees of Florida's nine public universities: Florida A&M University (Tallahassee), Florida Atlantic University (Boca Raton), Florida International University (Miami), Florida State University (Tallahassee), University of Central Florida (Orlando), University of Florida (Gainesville), University of North Florida (Jacksonville), University of South Florida (Tampa), University of West Florida (Pensacola).
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Printed in the U.S.A. on acid-free paper. oo
Chapter 1. Congress and Human Rights Legislation:
An Overview I
Chapter 2. Congressional Voting on Human Rights Measures 24 Chapter 3. The Fate of General Human Right's Legislation 51 Chapter 4. Country- Specific Legislation: Central America 80 Chapter 5. Other Country-Specific Legislation 101
Chapter 6. Function-Specific Legislation 119
Chapter 7. Congressional Process and Impact 137
Chapter 8. The Wisdom of Congressional Action 152
Appendix A. Human Rights and Security Assistance 175
Appendix B. Human Rights and Economic Assistance 180
Appendix C. Human Rights and Multilateral Banking 183
The role of Congress is another question. There is no doubt that congressional concerns and pressures have played a very positive role in giving impetus and backing to our efforts to influence other governments' behavior. This congressional pressure can strengthen the hand of the executive branch in its efforts of diplomacy. At the same time, there can be complications if the legislative instrument is too inflexible or heavy-handed, or, even more, if Congress attempts,-to take on the administrative responsibility for executing policy.
-Secretary of State George Shultz, 4"Human Rights and the Moral Dimension of U.S. Foreign Policy," in Current Policy No. 551, February 22, 1984.
International human rights can be studied from many different perspectives. The prevalent approach in the United States has been the legal one. Professors of law have been prominent in the study of human rights, and courses dealing with human rights- issues are found primarily in law schools. While many legal scholars are. active in the political process and understand it well, many studies overemphasize legal obligations, -rules, theories, and structure while undervaluing. considerations of power and policy. The first objective of this book is to correct that imbalance. The place of human rights in U.S. foreign policy depends mainly on considerations of power and policy and only tangentially on law. In the interplay of politics and law, politics is -the more determinative factor. Little is ever done merely because a legal rule requires action, and almost never is anything done merely because a court orders it.
Moreover, many studies of human rights that attempted to place the issues in their proper political context have focused either on international developments (e.g., the United Nations and regional organizations) or on foreign policy as conducted by the executive (e.g., Carter's policy, Reagan's policy). Yet it was Qngies,, t the Carter administra -tion, that put international _humnights-bac k-on th oreign policy agend&ao "the Unte States... And it was primarily Congress that prevented the Reagan administration from taking the subject off the foreign policy agenda in 1981, as it evidently wished to do. But Congress has been little studied in connection with human rights in U.S. foreign policy. The second objective of this book is to correct that imbalance also.
The third objective of this book is to summarize what Congress has done on human rights in foreign policy from 1973, when a House subcommittee began to put the subject on the contemporary foreign policy agenda, to 1984 and the end of the first Reagan administration. (Events from 1984 to the time of writing in midi-197 arem referred to in pass-
in two ways. The few published works that track congressional activity are basically legal rather than political-lists of statutes and nothing more (e.g., House Committee on Foreign Affairs, Human Rights Documents, Part 1, Washington, 1983). In this study, I seek to place the statutes in their political context. Furthermore, I present congressional activity in a policy framework by organizing the analysis of human rights legislation into hortatory, general, country-specific, and functionspecific categories.
The fourth objective of this book is to analyze congressional human rights actions in terms of their impact on the executive and on world politics. The two C*oncluding chapters deal with the nature of the congressional process, asking whether congressional concern with human rights is systematic, institutionalized, and predictable. There I propose an answer to the question of whether congressional activity has had an impact on the executive's conduct of diplomacy and, if so, which types of legislation and in what ways. Finally, I broach the question of whether Congress has been wise in its legislation and its actions defensible or commendable and, if so, according to what standards or criteria.
Two aspects of congressional activity on human rights are not analyzed here. No attempt is made to analyze the letters and phone calls by individual members of Congress on human rights matters. There are a great many such efforts in Washington, but there is no way to chart the volume, for no one keeps track of them, or to analyze their impact. When asked about such activity, senators and representatives, with few exceptions, say they have no idea whether their demarches achieve results in mos t cases.
Nor does this study analyze congressional action on human rights in direct relationship to international human rights treaties, an important and worthwhile subject. Why the Senate finally gave its advice and consent for ratification of the Genocide Convention but failed to do so for the United Nations Covenant on Civil and Political Rights and the United Nations Covenant on Social, Economic, and Cultural Rights is clearly important, and why the Congress has, contrarily, shown so little interest in other international treaties is likewise important. But since there are other studies on these subjects and there is much to analyze on congressional legislative actions involving international human rights, I have directed this study to the latter subject only.
early consideration of the subject and several trips to Washington for interviews. A summer faculty fellowship from the Research Council of the University of Nebraska allowed the preparation of a complete draft during the summer of 1986. Another grant from the Research Council helped with technical preparations.
The director of the Foundation Fund, John Hibbing, a specialist on Congress and associate professor of political science, was most helpful in my work, as was Susan Welch, Regents professor of political science at the University of Nebraska. In particular, chapter 2 on human rights voting in Congress could not have been done as it was without her considerable skills with the computer. See further Forsythe and Welch, "Human Rights Voting in Congress" (full facts of publication appear in the bibliography). William P. Avery, another faculty member at the University of Nebraska, was helpful at an earlier stage of chapter 2 which can be seen in Avery and Forsythe, "Human Rights, National Security, and the U.S. Senate: Who Votes for What, and Why."
In additi on to documentary evidence and secondary works, this study is based on interviews in Washington between 1979 and 1986, with some earlier ones dating from the period 1972-74. Three Washingtonians were especially helpful without bearing any responsibility for my statements of fact or interpretation: Margaret "Peggy" Galey, a staff member of the House Foreign Affairs Committee; Mark Tavlarides, staff director of the House Subcommittee on Human Rights,/ and International Organizations; and Frank Sieverts, deputy assistant secretary of state for human rights and humanitarian affairs during the Carter administration. The manuscript, in part or in whole, was read by them and by Cynthia Sprunger, minority staff consultant, House Subcommittee on Human Rights; George Lister, senior policy advisor assigned to the Human Rights Bureau during the Reagan administration; Marilyn Zak and later Travis Horel, coordinators for human rights, U.S. Agency for International Development; Lars Schoultz, professor of political science at the University of North Carolina; Holly Burkehalter, then on the staff of Americas Watch; and Howard Tolley, professor of political science at the University of Cincinnati.
Interviews were not for attribution. In the Department of State they were held with Patricia Derian, John Salzburg, Stephen B. Cohen, Charles Runyon, Roberta Cohen, Gary Mathews, Roger Pilon, James
xii / Preface
declined to be interviewed. In the Congress, interviews were held with various staff members of the Senate Foreign Relations Committee and the House Foreign Affairs Committee, including subcommittees. Additional interviews were held in the offices of Senators Lugar, Percy, Zorinsky, Packwood, Wallop, Dodd, Sarbanes, Chiles, McGovern, Stewart, Church, Harkin; and Congressmen Bereuter, Wilson (Texas), Patterson, Fraser, Bonker, Yatron, and Leach. Further interviews were held with officials of private organizations that tracked Congress and human rights, such as Amnesty International, Americas Watch, Washington Office on Latin America, Washington Office on Africa, Americans for Democratic Action, Friends Committee on National Legislation, United Church of Christ, and International Human Rights Law Group.
Most of the processing of the manuscript was done by Debra Dean under the direction of Helen Sexton. They put up with enough technical glitches in the computers and printers of the University of Nebraska Political Science Department to last a lifetime.
The author accepts full responsibility for the contents of the pages that follow.
Congress and Human Rights Legislation:
No single prescription can be written to give force to a policy of
deeper concern for human rights. The most obvious option is to let the offending country know that human rights violations will cost them something in their relationship with the United States. the steps taken by the United States should apply steadily increasing pressure until
the message about human rights gets through to the other government.
The U.S. response in the past has been modest and largely ineffective.
Donald A Fraser,
"Freedom and Foreign Policy," 146-47
In the early 1970s, some members of Congress began to feel that American foreign policy under the Nixon-Kissinger team had become divorced from traditional American values. Some said the policy was too Machiavellian and amoral, overly concerned with an impersonal balance of power. Some claimed U.S. policies were too brutal in Southeast Asia or too indifferent to torturers in Latin America. In 1973, these and other critical views converged in a series of hearings held by the usually obscure Subcommittee on International Organizations and
r renamed the Subcommittee o__n-- H" u "'m-" a""n"'Rig-hts
International Organizations) of the House Committee on Foreign Affairs. The Democratic chair of that subcommittee, Minnesota's Donald M. Fraser, was not hesitant to criticize Republican policy, and he chose to frame his criticism in the language of human rights.' His efforts gained considerable support..
This concern for the place of human rights in U.S. foreign policy was only part of a growing assertiveness by Congress about many as-%-r 1U. In'7n 4, ln'7C TT 0
2 /Human Rights and U.S. Foreign Policy
president's veto, blocked CIA involvement in Angola, instigated an arms embargo against Turkey for its policies in Cyprus, established some control over intelligence activities, and moved in other ways to legislate foreign policy in opposition to an unwilling president. The Watergate scandal further emboldened the legislature. It has been said that the Constitution invites a struggle between the political branches for control of foreign policy; after largely deferring to the executive branch for two decades, Congress accepted that invitation. Human rights lay at the center of its renewed concern, 2 a more durable and troublesome concern than many anticipated.
In the mid-1970s, a shifting and erratic bipartisan majority in both houses of Congress cared little that Kissinger increasingly used the rhetoric of human rights, even of morality,_to defend the Republican record.' It was equally indifferent when Jimmy Carter later tried to appropriate the language of human rights for his administration.' Still later the Reagan administration confronted a Congress insisting on attention to human rights in places like El Salvador and Guatemala, South Africa and Chile, Romania and the Philippines. Between 1973, when Fraser's series of systematic hearings and concluding report drew attention to the issue, 5 and the end of the first Reagan administration in 1984, Congress placed numerous human rights statements on the books. Beyond resolutions in favor of goodness, Congress aotdsxptn tially mpraneastve nhun'YIis. At one time or another it adopted country- specific legislation pertaining to about twenty nations. Periodically it passed specific rules requiring the president to pay detailed attention to a series of functional human rights matters,, hoping thereby to ensure that its mandate would be carried out. For more than a decade after the human rights issue resurfaced in American foreign policy, Congress apparently tried to make human. rights a major concern of the Uiii d$t"ate7s '7.in, its, international. affairs.
It may surprise some to learn that the boundaries of this subject are not clear, that it is not easy to specify precisely the scope of congressional actions on human rights. The United States has taken an essentially unilateral stance on the subject of human rights. It has -not ratified the major international treaties on human rights, such as the United Nations Covenant on Civil and Political Rights, the United Nations Covenant on Social, Economic, and Cultural Rights, and the Organization of~9 Ameia ttsCneto nHmnRgt.Tee
Congress and Human Rights Legislation 3
fore one cannot identify legislation p pursuant to these major human rights treaties and say simply that this is the corpus of U.S. human rights legislation. Where the United States is a full party to a human rights treaty, as it is to the International Protocol on Refugees, one can do so. Otherwise one must look for U.S. legislation that refers to "internationally recognized human rights" or to specific international instruments (such as the 1948 Universal Declaration of Human Rights) or that encompasses a subject like emigration (which can be inferred to fall clearly within the scope of the international instruments on human rights).' This latter guideline allows considerable room for debate as to what constitutes human rights legislation.
For example, a congressional report about human rights lists a number of acts having to do with global hunger and food policy.' A close reading of this list, however, coupled with a broader understanding of American approaches to these socioeconomic subjects, leads to the conclusion that Congress has dealt with food policy out of moral concern or for the sake of U.S political expediency. It has not approached the subject of hunger from the perspective that people have a right to be free from hunger just as they have a right to be free from torture. Congress has endorsed the latter right but never, specifically, the former.
When Congress passed t he International Security and Development Cooperation Act of 1981, for example, thus devoting its. attention to shortages of food, fuel, and water as well as to sickness and overpopulation, it said:
The Congress finds that the Nation's understanding of global and national security must be broad enough to include the problems cited in this section, and that adequate protection of the security of the United States requires effective action on these global problems, and in particular on the problems of hunger, disease,
and extreme poverty. .
The Congress, affirming the value of human life, finds and declares that the elimination of hunger and its causes is of fundamental moral significance and, further, that it is in the political, economic, and security interests of the United States. Therefore, the Congress declares that the elimination of hunger and its causes shall be a primary objective of United States relations with the
4 Human Rights and U.S. Foreign Policy
Nowhere in these or any other statutes does Congress declare that freedom from hunger or malnutrition is an internationally recognized human right.
It may be that Congress does not need to recognize the category of socioeconomic rights in order to take pragmatic steps to alleviate hunger and other economic and social deficiencies. Congress has certainly shown an interest in "basic human needs," in helping to meet at least some of the requirements of "needy people," and in doing something about a number of socioeconomic problems-illiteracy, for example.
It remains incorrect, however, to attribute to Congress a real endorsement of socioeconomic rights, which would smack of socialism, creeping or otherwise. As an aide to a Republican member of Congress said in a 1984 interview, "It is the type of issue that sends moderate Republicans scrambling to the corridors to avoid a vote."
One general phrase in "soft" legislation that seems to endorse the concept of socio economic human rights has never led to any followup. At one point Congress did adopt-without vote-the following language:
The Congress declares that the individual liberties. economic prosperity and security of the people of the United S tates are best sustained and enhanced in a community of nations which respect
individual civil and economic rights. [emphasis added]
United States development cooperation policy should emphasize four principal goals: .
(3) the encouragement of development processes in which individual civil and economic rights are respected and enhanced. [emphasis added]'
These references may be intended to refer to a popular American definition of "economic rights" -namely, the right to own private property. The legislative history on this point is unclear.
It is true that the Carter administration, in a general statement of policy that had little bearing on day-to-day activities, endorsed the concept of socioeconomic rights and actually listed them as more important than general political rights. That administration also signed and sent to the Senate the United Nations Covenant on Social, Economic,
nn A Pi -i I fi i -rQ I D ; erb f o
Congress and Human Rights Legislation / 5
ally recognized human rights" includes freedom from "torture or cruel, inhumane, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person." I I
In another statute, Congress defined the rights at issue as those violated by "a consistent pattern of gross violations of internationally recognized human rights, such as torture or cruel, inhumane, or degrading treatment or punishment, prolonged detention without charges, or other flagrant denial to life, liberty, and the security of person." Congress has never tried to reach an exhaustive definition of "internationally recognized human rights," but its examples of rights covered by that phrase have all been from the civil-political realm.
It is certainly reasonable to consider basic human needs as the political equivalent of fundamental socioeconomic human rights. Yet it is important to note that Congress has chosen to emphasize socioeconomic needs rather than rights, as has the Reagan administration. Indeed,.even the Carter administration's practice fit the dominant American pattern. Therefore, in the analysis that follows, food policy is not treated as a human rights subject because the dominant American approach (symbolic gestures from the Carter administration notwithstanding) deals with socioeconomic subjects by discretionary, not obligatory, policy responses.
Reasonable observers can also debate whether a statute should be considered human rights legislation when it covers discrimination against American nationals at home or abroad who contract to provide defense items." (I hold that it should not be so considered.) Human rights in American foreign policy is understood in this study to pertain to the rights of foreign nationals and their connection with U. S. policies.
To understand human rights legislation from a political rather than a legal perspective, it is useful to organize it into three broad categories, the last having two subgroups (see table 1. 1). By taking the year 1984, we gather a true sample of the congressional process, though some of the legislation has since been changed.
I Hortatory statements. Some congressional statements provide no rationale either for a presidential decision or for subsequent congressional action. In short, these statements become dead letters, typi-
6 / Human Rights and U.S. Foreign Policy
Table 1. 1. Types of legislation on human rights (a policy framework, 1984)
1. Hortatory statements
Endorsement and reaffirmation of international human rights in U.S. foreign
policy, including economic rights.
No assistance to regimes suppressing rights listed in the Universal Declaration
of Human Rights.
United States to disengage from regimes practicing genocide (sense of
No assistance to go to regimes holding political prisoners (sense of Congress).
2. General norms
No security assistance to regimes displaying a consistent pattern of gross violations of internationally recognized human rights, unless president certifies extraordinary circumstances so required; applie's to military training,
to transfer of crime control equipment,, and to economic support funds.
No economic assistance to regimes displaying a consistent pattern of gross
violations of internationally recognized human rights, unless assistance will directly benefit needy people; applies to OPIC insurance and to PL 480
and transfer of agricultural commodities.
U.S. delegations to international financial institutions to use their voice and
vote to advance the cause of human rights and to develop standards about
meeting basic human needs.
U.S. executive agencies authorized to grant refugee status to persons with a
well-founded fear of persecution and not to return refugees to a situation of
Regimes with nonmarket economies to be denied most-favored-nation trade
status and trade credits when they unduly restrict emigration.
U.S. Export-Import Bank to take human rights considerations into account in
its policies when such action clearly advances U.S. interests.
3. Specific rules
El Salvador Uganda
Haiti South Korea
Congress and Human Rights Legislation 7
Table 1. 1 -Continued
Creation of Bureau of Human Rights and Humanitarian Affairs in Department
Require Department of State to compile country reports on human rights
situation for all members of the United Nations.
Require various executive agencies to report to Congress about their decisions
related to human rights.
Creation of Commission on Security and Cooperation in Europe. Endorsement of interagency coordination of human rights within Department
of State (sense of Congress).
Prohibition of U.S. funds for police training, prisons, and internal surveillance and intelligence in foreign countries.
Designation of a minimum amount in Agency for International Development
budget for programs to promote civil and political rights.
Special appropriation for the International Committee of the Red Cross and
its program for "political" detainees.
Establishment of National Endowment for Democracy. Link part of U.S. contribution for the Organization of American States to its
Human Rights Commission.
Special South African Fund for education and human rights. Link U.S. participation in UNESCO to free flow of information according to
Article 19 of Universal Declaration of Human Rights (sense of Congress)
and bar funds to UNESCO if journalists licensed or restricted. Seek accountability regarding MIAs in Southeast Asia. NOTE: All references are to laws, unless designated sense of Congress. Dates
not given for legislation because amendments changed form at different times..
lotions; politically, they are simply forgotten, as the mentioned endorsement of economic rights has been. Not a single congressional aide interviewed in 1984 was familiar with it.
In 1982, Congress adopted the Foreign Assistance and Related Proarnme A1nnrnnr;-nt;nnc Aot VZArt;nn r%11 nf thp not rpndc- "Piindc nn-
8 / Human Rights and U.S. Foreign Policy
appropriate by this Act may not be obligated or expended to provide assistance to any country for the purpose of aiding the efforts of the government of such country to repress the legitimate rights of the population of such country contrary to the Universal Declaration of Human Rights." As of late 1987, no one at either end of Pennsylvania Avenue has paid attention to this section.
In the Bretton Woods Agreement Act, Section 5(b) reads: "It is the sense of the Congress that the Government of the United States should take steps to disassociate itself from any foreign government which engages in the international crime of genocide." Neither Congress nor the executive branch has tried to name such a government, much less disengage from it; in fact, neither branch has paid any attention to this provision of the act.
Section 32 of the Foreign Assistance Act of 1973, one of the first congressional declarations on human rights, stated, "It is the sense of Congress that the President should deny any economic or military assistance to the government of any foreign country which practices the internment or imprisonment of that country's citizens for political purposes. 17 But the Nixon administration did not have the same "sense" as Congress. International law contained no definition of political imprisonment, and to follow congressional guidelines would have terminated virtually all U.S. economic and military assistance programs. Even Amnesty International preferred to use the term "prisoner of conscience" to try to define "political prisoner." 18 For these and perhaps other reasons, this sense-of-the-Congress resolution died an early and generally unlamented death.
One can see, then, that certain congressional statements about human rights evaporate into the political atmosphere. The product of transitory sentiments in the Congress, they fail to influence public policy, although the ones in statutory form are "on the books" for enterprising politicians, bureaucrats, activists, and lawyers to'use.'9
2. General legislation. Some congressional statements are noted carefully by executive branch officials or members of Congress. Invariably they are laws, or, at some point, they take that form. Because they are general and generate some degree of continuing congressional interest, Congress subsequently strives to oversee executive interpretations (or evasions) of them. Three, perhaps four, such general laws lay
A All d% A 1 1 Is A 11 11 191V 7 .2 11 d% -4 4-1k P-w -%
Congress and Human Rights Legislation 9
to 1984, and several more tangential ones fit into this second category as well.
In 1974, following the Fraser hearings, Congress ex its belief rity assistance should be linked to human ri6ts concerns'. "As in its early statement about political prisoners, Congress did i0fbifid the president legally but sent a political signal that more attention should be given to human rights in regimes receiving U.S. security assistance. Given the reluctance of Secretary of State Kissinger to acknowledge congressional signals on this subject, and despite the election of Jimmy Carter, Congress made this linkage legally binding in 1978 by revising the long and complex section of the Foreign Assistance Act of 1961 (as amended) known as Section 502B. One key part of this law states: "No security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights." 20 Another part states that the president may certify in a report to Congress that "extraordinary circumstances exist warranting provision of such assistance." This law, among other things, extends the ban beyond strict military assistance to include law enforcement assistance, domestic intelligence assistance, transfer of crime control equipment, military training (IMET, or international military education and training), -and economic support funds (ESF). The basic motivation behind this law is stated in the law itself: "The President is directed to formulate and conduct international security assistance programs of the United States in a manner which will promote and advance human rights and avoid identification of the United States, through such programs, with governments which deny to their people internationally recognized human rights." Section 502B has been one of the primary congressional statements about human rights and American foreign policy, even though by 1984 no administration and no Congress had publicly and formally identified a regime that showed a consistent pattern of gross violations, nor had the executive branch certified an exception for reasons of extraordinary circumstances.
The 1974 Congress also directed its human rights concern toward development assistance. Unlike security assistance, the provision on developmental economic assistance was made legally binding from the start. Its primary sponsor, Congressman Tom Harkin (D., Iowa), sub-
10 / Human Rights and U.S. Foreign Policy
picked up support not only from persons interested in human rights but also from those interested in reducing foreign aid. What became known as the Harkin amendment, or Section 116 of the Foreign Assistance Act of 1961 (as amended), reads (as of 1984) in part:
No assistance may be provided under this part to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel,, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right of life, liberty, and the security of persons unless such assistance will directly benefit
the needy people in such country."
This Harkin amendment became so well known to persons involved with human rights in Washington that it became a generic term. Members of Congress proposed or threatened to propose various "Harkin amendments" as a way of linking human rights to international financial institutions, American bilateral financial dealings, governmentsponsored insurance for American exporters and investors, and so forth. Later legislation made Section 116 applicable also to the transfer of agricultural products under the "food for peace program (PL 480) and to U.S. insurance (via the Overseas Private Investment Corporation or OPIC) for American investors abroad." The amendment as revised over the years became long and complex, but its intent was clear. Where there was a consistent pattern of gross violations of human rights, the United States should not encourage or reinforce such violations by economic assistance promoting general economic growth that would benefit the repressive regime. Assistance that would directly benefit the needy section of the population, however, could continue. As we will see,, this legislation did affect the deliberations of the executive branch, and the U.S. Agency for International Development, in particular, did on occasion differentiate developmental aid from assistance to the most needy.
With the election of Jimmy Carter in 1976, one might have thought that the Democrat-controlled Congress would withdraw from its hu-
Congress and Human Rights Legislation / I I
Democrats like Fraser did so for a time but only in part. Not only was Section 502B revised in 1978 to put more pressure on the president to link human rights to security assistance, but also third general human rights statute was put on the books in 1977 after much wrangling and over initial opposition from the new administration. In the International Financial Assistance Act of 1977, Congress stipulated in subsection (a):
The United States Government, in connection with its voice and vote in the [international financial institutions], shall advance the cause of human rights, including by seeking to channel assistance toward countries other than those whose governments engage
(1) a consistent pattern of gross violations of internationally
recognized human rights, such as torture or cruel, inhumane, or degrading treatment or punishment, prolonged.
detention without charges, or other flagrant denial to life,
liberty, and the security of person; or
(2) provide refuge to individuals committing acts of international terrorism by hijacking aircraft.21
In a key section of this act Congress said, "The United States Executive Directors of the institutions listed in subsection (a) are authorized and instructed to oppose any loan, any extension of financial assistance, or any technical assistance to any country described in subsection (a) (1) or (2), unless such assistance is directed specifically to programs which serve the basic human needs of the citizens of such country. The Carter administration did not want this language adopted since it restricted executive branch actions in foreign policy, and both the Department of the Treasury and international financial institutions such as the World Bank argued that "political" considerations such as human rights should not intrude on the "purely" economic functions of international financial institutions. Congress, unpersuaded by these arguments, passed the act and periodically examined whether its intent was being carried out by various administrations.
In 1980 Congress revised U.S. law pertaining to refugees, in part to make American legislation consistent with the international treaty on
12 Human Rights and U.S. Foreign Policy
display a strong cold war bias in its handling of refugee matters; persons fleeing communist regimes were given preferential status as refugees, while those fleeing persecution from noncommunist regimes might or might not be given refugee status and then political asylum.
For this and other reasons Congress enacted a new law that in effect incorporated language from the International Convention Relating to the Status of Refugees, to which the United States had never become a party even though it had acceded to the subsequent protocol. Legalities aside, Congress authorized the president in 1980 to consider as a refugee a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." 21 Subsequently, sectors of Congress gave considerable attention to the question of whether the Reagan administration was giving preferential treatment to refugees from communist countries like Poland, while considering fugitives from Central American countries like El Salvador and Haiti as "economic migrants" rather than refugees with a right not to be sent back to situations of persecution.
In 1974, at perhaps the peak of congressional assertiveness in foreign policy, Congress passed what is generally referred to as the Jackson-Vanik amendment to the Trade Act. Directed at "any non-market economy country," this provision was designed to deny most-favorednation status and credit or credit guarantees to any country that
(1) denies its citizensthe right or opportunity to emigrate;
(2) imposes more than a nominal tax on emigration or on the
visas or other documents required for emigration, for any
purpose or cause whatsoever; or
(3) imposes more than a nominal tax, levy, fine, fee, or other
charge on any citizen as a consequence of the desire of
such citizen to emigrate to the country of his choice. 26
This and other parts of the act were supposed to "assure the continued dedication of the United States to fundamental human rights." Passed despite the strong objections of Secretary of State Kissinger and the
Congress and Human Rights Legislation 13
Congress were working closely with the Reagan administration in enforcing the act in Eastern Europe.
At least one other general provision on human rights has bcen adopted by Congress with some impact on policy-if only slight impact on human rights. In the amended Export-Import Bank Act of 1945 Congress passed some soft law, stating, It is further the policy of the United States that. There followed a long paragraph stating the general concerns that should be included in U.S. policy involving the Export-Import Bank-the public bank that extends credit to parties purchasing American goods and services. At the very end of the paragraph specifying congressional economic concerns, Congress authorized the president to "deny applications for credit for financial or noncommercial considerations" such as "international terrorism, nuclear proliferation, environmental protection and human rights," thus linking human rights to the Export-Import Bank. But the thrust of the legislation made it clear that "only in cases where the President determines that such action would be in the national interest, where such action would clearly and importantly advance United States policy" were the economic functions of the bank to be restricted. In some slight follow-up to this legislation, Congress has legislated other human rights concerns into the bank's transactions but not directly under this general wording.
Congress seized upon the Export-Import Bank Act of 1945, as amended, to write in the so-called Sullivan principles regarding integration of the labor force in the Republic of South Africa. The purpose of the principles, formulated by an American black minister active in international labor matters, was to deny Export-Import Bank credits to any party supporting apartheid in South Africa. In order for bank loans to be extended to firms purchasing American goods and services destined for that country, the secretary of state was required by law to certify that "the purchaser has endorsed and has proceeded toward the implementation" of the Sullivan principles." At the time of writing no such credits had been extended, because the secretary had made no such certification.
In sum, one can see that through this second group of laws, Congress has tried to incorporate a broad human rights concern into U.S. bilateral and multilateral policies Manninia security and develODmental
14 / Human Rights and U.S. Foreign Policy
general parts of the statutes have been noted. Many of the statutes are long and detailed, and the specific mandates that some contain (reporting requirements, for example) are addressed in the third group of congressional acts pertaining to specific legislation. Indeed, as we will see in some detail, Congress has passed general legislation, but it has not stopped there. Because it has not trusted the president or approved of how he has implemented the general provisions enacted, Congress has adopted a rather large body of specific legislation on human rights.
3a. Country-specific legislation. As table 1. 1 indicated, by 1984 country- specific provisions on human rights had been enacted. Some of these provisions were quite weak and of only temporary importance. A congressional act passed in 1978 expressed the sense of the Congress that, should the administration conduct negotiations with Cuba, that government's "disrespect for the human rights.. of individuals must be taken into account in any such negotiations. 28 Another sense-of-the-Congress resolution passed in 1973 stated that "the president should request the Government of Chile to protect the human rights of all individuals." 29
But some of the country- specific legislation came to occupy a position of profound saliency in debates over American foreign policy. The best example of this type of congressional law on human rights pertained to El Salvador. From 1981 to 1984, Congress repeatedly passed legislation requiring the president to make a "certification" every 180 days that progress was being made on specified human rights matters if economic and security assistance to that country were to continue. Extensive hearings and hours of debate on this subject-not to mention hours of action off the floors of both houses-preceded each controversial vote. In a series of actions of deepening complexity, President Reagan exercised the "pocket veto" over one version of the certification provision while Congress was in recess at the end of 1983; but a federal court later ruled that this was an unconstitutional act since the pocket veto could only be used at the end of a session of Congress, not during a recess. In the meantime, however, the Congress passed further legislation that tied'U.S. assistance for El Salvador to human rights standards without the device of certification.
We will examine the case of human rights in El Salvador more thoroughly later. It is sufficient for now to note that Congress, including the
Congress and Human Rights Legislation 15
the importance of human rights, especially in comparison to the strategic issue, and over whether the president should be so limited in foreign affairs by the Congress.
El Salvador was not the only country targeted for country- specific legislation by Congress. When in the 1980s the Reagan administration asked Congress to repeal the ban on arms sales to authoritarian Chile, Congress consented after much acrimonious debate; but it again required the president to certify progress on specified human rights matters. In particular, Congress required the president to certify that Chile "has taken appropriate steps to cooperate to bring to justice Persons] indicted in connection with the murders" of persons in the United StateS.30 As of mid-1987, the president had not done so; arms sales to the Pinochet regime remained effectively blocked for human rights reasons though the general ban had been removed. In addition to this legislation directed at Chile, Congress also voted for presidential certification of progress on specific human rights matters regarding Nicaragua and Haiti.31
While some country- specific human rights actions by Congress could be quickly forgotten, others were extensively debated. Indeed, interviews in the Department of State in 1984 indicated that specific legislation was the type of human rights action most dreaded by the executive branch. Such legislation frequently tied the president's hands and left the executive branch little room to maneuver in foreign affairs. Of course, some congressional actions could be function-specific rather than country- specific, and it is to that last type of human rights provisions that we now turn.
3b. Function-specific legislation. One can identify-generically or individually-about fifteen provisions emanating from Congress that mandate specific actions on human rights by the executive branch without regard to particular countries. Reporting requirements are generic; other kinds of requirements are individual.
One of the most important of these is the 1977 law creating the Bureau of Human Rights and Humanitarian Affairs in the Department of State .3' This provision was coolly received in the department, especially by the career Foreign Service officers trained to put a high premium on stable and friendly relations with the states to which they were assigned. After all, raising the issue of human rights can be de-
16 Human Rights and U.S. Foreign Policy
rights to a distinct bureau rather than to integrate human rights administratively into American diplomacy. But Congress held the opinion that it was important to give human rights an administrative base, an administrative territory. If policy sometimes evolved through struggles over such territory, and if a bureau in the department was responsible for the province of human rights, then the existence of a human. rights bureau headed by an assistant secretary of state was conducive to promoting the cause of human rights in bureaucratic struggles. The cause would be advanced not only by substantive commitment but also by the bureaucratic imperative.
By 1984, the bureau had been -headed by two assistant secretaries for human rights: Pat Derian under Jimmy Carter and Elliott Abrams under Ronald Reagan. An examination of their records will be presented in chapter 6, although much information about their activities is not available to the public. It is not easy to establish clearly how many battles they fought within the executive branch or how often they won. It seems that frequently, under both Democrats and Republicans, what the bureau wanted was opposed by a regional bureau more interested in stable security relations than in human rights, or perhaps by a Department of the Treasury more interested in "business as u sual than in (a (I complicating" economic relations with human rights considerations, or perhaps by a Department of Commerce more interested in promoting sales than in combating repression by restricting them. Both assistant secretaries developed a reputation for assertiveness, although not along the same policy path..The prevailing view of the bureau was that on many issues during both administrations its goal of supporting human rights lost out to more traditional concerns for security and economic well-being represented by other parts of the Departments of State, Defense, the Treasury, and Commerce. Nevertheless, Congress seemed generally satisfied by the restructuring it had brought about, and no administration asked Congress to return to the status quo.
One of the tasks of the Bureau of Human Rights, mandated by Congress, was to compile a report on the human rights situation in every member state of the United Nations." Congress had first required reports only on countries receiving U.S. security assistance, but this approach seemed unbalanced, especially to conservatives in Congress, who wanted attention to communist nations' violations even thouRh
Congress and Human Rights Legislation / 17
nearly global. (Some observers have. speculated that a number of conservatives wanted to kill the project by making the task so large as to be unmanageable.) The first reports compiled under Secretary of State Kissinger, thin in substance, were delayed in publication. Under the two following administrations there was progressively more compliance with congressional intent, either because the executive branch desired it or feared criticism from members of Congress aligned with private human rights groups. The annual country reports thus became a major statement on the condition of international human rights in the world." No other reports attempted quite so much, although Freedom House, a private organization in New York, tried to analyze civil and political rights globally, and Amnesty International, headquartered in London, periodically published global reports on selected topics such as the extent and location of torture in the world."
The State Department's annual human rights reports were deficient, however. Social, economic, and cultural rights were not treated as human rights or subjected to extensive analysis, and some claimed that a political bias could be found in the reports on several countries. But by 1984, critics of the administration in Congress were applauding Reagan's Bureau of Human Rights for the general objectivity of its reports. And a number of private human rights organizations were also saying that, whatever the particular biases, the reports remained important and useful tools for the analysis of human rights conditions." The fundamental question, in principle, had become not so much the facts about civil and political rights but rather to what extent violations of these rights affected the conduct of American foreign policy. (Few policy makers anywhere in government showed much concern about socioeconomic rights.)
A generic congressional action, found in much legislation, is to require the executive agency involved to report to Congress on how it has taken human rights into account in its policies. This requirement has been attached to legislation affecting not only the Department of State and the Agency for International Development but also the Department of the Treasury, the Department of Commerce, the Overseas Private Investment Corporation, and the Export-Import Bank. It is obviously designed to keep Congress informed, and it can trigger congressional hearings if the Congress is dissatisfied with presidential performance.
18 / Human Rights and U.S. Foreign Policy
monitor executive actions, but increasingly it requires the executive branch to compile sometimes extends ive and detailed reports on its implementation of legislation. Some reports become routine, but some become the focus of extensive debate, depending upon the politics of a follow-up, if any, in Congress.
Another function- specific law of some importance prohibited the United States from providing police training to foreign states."-This 1974 law, which replaced a similar one of the preceding year, grew out of congressional concern that the United States was directly participating in repression, including torture, especially in Latin America. Con--" gress therefore blocked funds "to provide training or advice, or provide any financial support, for police, prisons, or other law enforcement forces for any foreign government or any program of internal intelligence or surveillance." It was a specific, sweeping ban, adopted at the height of congressional assertiveness (1974-78). While apparently no overt U.S. monies were expended on foreign police training from 1975 to 1984, it was not clear what might have been done covertly between the CIA and "internal intelligence or surveillance" agencies in foreign countries. But by 1984 the Reagan administration was finding this prohibition on police training onerous enough to seek its repeal. In the view of the administration, if the police were brutal in places like El Salvador and Uganda, then it was important to be able to provide them with remedial training. Some in Congress, however, were not convinced that such U.S. training in the past had proved ameliorative, and they fought to maintain the 1974 ban until 1985 when it was partially repealed.
Like the ban on police training, much U.S. human rights legislation is negative in the sense that it seeks to block some financial,, monetary, military, or diplomatic transaction because of violations of human rights. Some general language is more positive, urging or requiring the United States to promote or encourage the protection of human rights. Several specific measures are also of this positive variety. In Section 116(e) of the Foreign Assistance Act, Congress "authorized and encouraged" the executive to use "not less than" a specified amount of economic assistance "for studies to identify, and for openly carrying out, programs and activities which will encourage or promote increased adherence to civil and political rights. None of these
Congress and Human Rights Legislation / 19
any country." 38 Under this legislation, the United States supported a number of organizations and programs for the positive advancement of human rights in countries eligible to receive U.S. developmental assistance.
One of the more controversial positive approaches to human rights development was Project Democracy. After much wrangling and many false starts, deletions of funding, revisions of intent, and the like, Congress approved in 1983 a program to promote democracy around the world. The Reagan administration had long criticized the Carter administration and others for failing to deal with human rights in a structural sense. A favorite way of dealing with this distinction was to note that one cofir se e -keither the release ofi itic ieisipomli ofa democratic cnstemo niwhichsno poiicalprisoners were
detained. Thfe Reagan administration in particular showed a pronounced te n ency to collapse "human rights" into "democracy" or "democratic freedoms" and to talk about, if not push for, structural change toward democracy. After the president made a speech to the British House of Commons calling for a crusade for democracy, his administration presented its ideas in legislative form to Congress, which finally approved a similar version.
A private corporation was created with public funding. The purpose of the project was to help build the infrastructure for democracy but not to support particular political parties or candidates and not to try to affect the outcome of any particular election. From the beginning some members of Congress had reservations about how the project would operate in practice. Not a few were concerned that the vision of democracy held by the Reagan administration might be narrowly conservative and that funds under the program would flow only to those with similar ideological orientations. Nevertheless, and despite the fact that some of these concerns proved to be justified, Preojct Democracy was finally authorized so that a bipartisan board, technically private in nature, dispensed funds to private groups in a supposedly public process. Project Democracy funds were administered separately from AID ffids, which went for essentially the same cause under Section 116(e) of teFr~nAssacAt
Another positive and specific act of Congress was a special appropriation of money to the International Committee of the Red Cross, headquartered in Geneva, for its work with "'political' detainees." Yet
20 Human Rights and U.S. Foreign Policy
another positive action tied part of the U.S. contribution to the Organization of American States specifically to the work of the Inter-American Commission on Human Rights. These exercises of the power of the purse did not prove 'Controversial.
Function-specific requirements concerning human rights can be found in other legislation. In the International Financial Institutions Act of 1977, Congress instructed the secretary of the treasury to -fashion policy in international financial institutions so as to take into account "the responsiveness of the governments [of Southeast Asia] in providing a more substantial accounting of Americans missing in action."
In 1983, Congress directed consi durable attention to the United Nations Educational, Scientific, and Cultural Organization (UNESCO). Finding, among other things, that "Article 19 of the Universal Declaration of Human Rights provides for the right to freedom of expression and to 'seek, receive, and impart information and ideas through any media and regardless of frontiers'," Congress expressed its sense that UNESCO "should cease efforts to attempt to regulate news content and to formulate rules and regulations for the operation of the world press. But Congress, having expressed this nonbinding sense, then went on to bar funds for UNESCO "if that organization implements any policy or. procedure the effect of which is to license journalists or their publications, to censor or otherwise restrict the free flow of information within or among countries, or to impose mandatory codes of journalistic practice or ethics." This binding provision, qualified, to be sure, by an "if condition, was superseded by the Reagan administration's decision to withdraw from UNESCO. The 1983 congressional wording was a signal to Reagan that he could proceed to "get tough" with UNESCO, which he did. As far as human rights was concerned, Congress had linked its power of the purse in part to the rights proclaimed twenty-five years earlier in the U.N. General Assembly resolution known as the Universal Declaration of Human Rights.
In other function-specific acts, Congress created in 1976 the Commission on Security and Cooperation in Europe to help monitor developments under the Helsinki Act of the preceding year. The commission, a two-branch agency, focused largely on human rights rather than on security or economic issues. It came to be called the Fascell Com-
Congress and Human Rights Legislation 21
by Congressman Dante Fascell (D., Florida), and it was active for much of its existence.
Congress also mandated several programs to promote human rights, broadly defined, in South Africa. There was an educational program to train nonwhite South Africans both within the republic and abroad. There was a separate program to promote an integrated South African society through upgrading the private infrastructure of democracy.
Finally, in 1981 Congress declared its sense that the coordination of human rights with economic assistance had worked well in the Carter administration and that the process should be strengthened and expanded in the future. This measure was intended as a signal to the Reagan administration not to de-emphasize the human rights issue. It was adopted in the context of swirling rumors thafthe new administration intended to do just that.
Classifying U. S congressional actions on international human rights according to various schemes presented here highlights several points. Within general legislation one can cite this or that particular paragraph or combine several statements into one or more generic provisions. The scheme of classification presented here was adopted to highlight several points.
First, some congressional actions, even though they may produce law, are exceedingly "soft."' The softest of these actions are the hortatory statements,, whether legally binding or not. They are the sweepingly general statements by Congress that purportedly declare policy but that lead neither to executive action nor to congressional oversight.
A second type of congressional action on human rights declares general policy and elicits some subsequent interest by some part of the Congress. Because the language is general, the congressional statement is not self-enforcing. Whether the language of Congress actually becomes policy depends first on the good faith of the executive branch in implementing the provisions and second on the ability of Congress to compel compliance.
A third type of congressional action is more specific, whether pertaining to countries or functions. Some language may be almost selfenforcing-that is, the executive branch has so little room to maneuver under the legislation that it is difficult for an administration to do other than what is specified by Congress. This is relatively hard law. Some
__ - -1 11 "1 0 1 A I I I 0 A I -
22 / Human Rights and U.S. Foreign Policy
the executive branch if congressional interest and consensus are lacking. Congress may pass a law requiring the executive branch to certify progress on human rights in certain countries, but the subsequent political process determines how seriously that requirement is taken.
It bears stressing at this early point that congressional voting establishes both the legislative and the subsequent oversight framework. (Some human rights legislation has been approved without vote, in the sense that certain conference committee reports on the human rights provisions of a multipurpose bill were approved by consensus'.) The specific dynamics of the vote creating legislation indicate support for an idea and hence the prospect for continuing interest by members. If, as was true, the Harkin amendment linking U.S. economic assistance to human rights was supported by members interested in either upholding human rights or cutting foreign aid, one might predict some splintering and continuing congressional division when overseeing the act in practice. If, as was true, liberals and conservatives, Democrats and Republicans, supported an economic embargo because of human rights violations in Idi Amin's Uganda, one might predict that the executive branch would be forced to give way to strong and unified congressional sentiment. Thus voting in Congress on human rights has been part of setting the legal framework for action, but at the same time it has been part of the oversight process in which Congress, at least sometimes, seeks to compel the executive branch to follow congressional mandates-though not always successfully.
As will become clear, I do not conceive of legislation and oversight as two separate processes. This study is basically about oversight, by which I mean the entire follow-up process to original legislation. If one wishes to know what has happened to a piece of human rights legislation and why it was implemented or not, one has to look at executive action and its interplay with congressional communiques (letters and telephone calls and conversations), hearings, and subsequent legislation. Thus, asI argue explicitly toward the end of this study, legislation, oversight, and subsequent legislation comprise. a mostly seamless web in the policy process. Once there is original legislation, there may be congressional oversight, which may lead to legislation either to reword the original law or to exercise the power of the purse in relation to the executive's behavior under the law. Some choose to distinguish
rrUvr% rmee% ,n
Congress and Human Rights Legislation / 23
artificial, and I choose to frame this study otherwise. To make a complicated subject simple, I conceive of oversight as follow-up.
We turn now to congressional voting on human rights to seek further understanding about how the policy framework came to be and about the prospects for effective oversight from a watchful and unified Congress. We do not expect the U.S. Congress often to be watchful and unified concerning international human rights, but its actions can be' surprising.
Congressional Voting on Human Rights
There is no simple or enduring domestic consensus behind concern
for human rights in U.S. foreign policy-by the executive branch, the
Congress, or the American people.
American Dreaft Global Nightmare 111- 12
That Congress is able to legislate on matters of human rights, a seemingly obvious point, appears remarkable as one probes specific congressional actions. Some legislation has been put on the books without a vote on its particular human rights language; such legislation can evolve from bargaining on elements of more general bills in such ways that neither the House nor the Senate ever votes formally on its specific human rights provisions.
But Congress also uses roll call votes on human rights provisions, and as we examine this process two striking points emerge. If one examines the roll call votes on human rights (or a representative sample of them), there seems to be pure randomness in Congress's actions. Almost no pattern emerges. One cannot predict who will vote for what type of legislation, and one cannot explain members'. past votes. If, however, one breaks down these roll call votes into liberal and conservative proposals, one finds a clear partisan and ideological voting pattern. Both the apparent randomness and the clear split lie behind congressional action on human rights. The split especially affects congressional oversight of what it has already legislated, which will be covered
Congressional Voting on Human Rights Measures / 25
roll call votes, details of this process have not been analyzed A 1979 study used eight Senate votes during the period 1973-76 to conclude, primarily, that a senator's view of human rights legislation was strongly linked to the senator's position on national security issues.' Senators scoring high on the National Security Index (NSI) compiled by the private and conservative American Security Council were decidedly less likely to vote for the human rights legislation proposed during the Ninety-third and Ninety-fourth Congresses. Party affiliation, geographical region, and the security of one's seat were factors exerting weak but discernible influences on Senate votes.
The authors noted, however, that further study was necessary, given the limited number of human rights measures then available for analysis. Here I will examine congressional votes on selected human rights measures during the period 1977 84. 1 hypothesize that the conclusions from the 1979 study will explain more recent congressional behavior on human rights as well. That is, I posit initially that a constituency's influence on its member's vote will be weak and that what I call political factors-above all views concerning national security-will be more important. This approach means that the NSI ranking will manifest great explanatory and predictive ability.
An Overview of Human Rights Voting
The scope of human rights voting in Congress remains difficult to define. Because the United States has not become a party to most human rights treaties, one cannot simply look for legislation pursuant to such treaties. In addition to such treaty legislation, for example, the Refugee Act of 1980 2 one must also look for legislation that refers to international human rights explicitly or that can be reasonably inferred to fall within the domain of internationally recognized human rights. The former indicator is obvious enough, because some congressional action does indeed make explicit reference to international instruments. The latter can give rise to problems of definition. Yet some legislation, for example the Jackson-Vanik amendment concerning emigration from nonmarket societies, clearly addresses subjects covered by international human rights (the Universal Declaration of Human Rights of .1948 and the United Nations Covenant on Civil and Political Rights of
26 / Human Rights and U.S. Foreign Policy
issue area of human rights according to these guidelines, there is no concomitant argument that any member of Congress necessarily sees the issue as a purely human rights matter. A member may view it as a test of power between Congress and the president, or of national versus international jurisdiction, or of economic versus idealistic considerations, or of security versus morality, and so on. In short, what an observer may fairly and properly call a human rights vote may not be seen as a purely human rights vote by any given member of Congress. Just as a national security vote may be intertwined with institutional and political considerations, so a human rights vote may be bound up with other matters while maintaining.its basic character.
With these considerations in mind (which also implicitly guided the 1979 study), I identified fifty-one roll call votes dealing with human rights on the floor of Congress during the Carter and first Reagan administrations. The rather large number of votes in this issue area is important in itself, indicating the salience of international human rights (however used) in Washington politics during this period. During the Carter administration, especially, there was much confusion in Congress about international human rights. Hence it is helpful to categorize these votes based on consensus and conflict, then to analyze them further.
Some roll call votes manifest overwhelming consensus and thus provide few insights into why members of Congress voted as they did. But not all consensus adoptions reflect the same political dynamics. One type of consensual congressional action has been dubbed "motherhood resolutions," nonbinding resolutions endorsing something favored by almost everyone in Wash ington, at least in principle. Such resolutions condemning the Soviet invasion of Afghanistan (which violates the first article in the two 1966 U.N. human rights covenants dealing with the collective right of national self-determination) and bemoaning the suppression of labor rights in Poland seem to have had no immediate or specific impact on subsequent decisions in Washington. Whatever signals these votes send to foreign capitals, most of these consensual human rights statements seem to disappear as far as concrete policymaking in Washington is concerned.
A second type of consensual congressional action is more important for subsequent policy. On rare occasions-two during the period Is .1 Is 1r% .0" -I's -6 -2 -0
Congressional Voting on Human Rights Measures 27
the events may signify how difficult it is to obtain consensus criticism of an executive human rights policy once it is established. In 1979, the House of Representatives unanimously urged President Carter to restrict trade with Uganda, then under the murderous control of President Idi Amin. President Carter at that time resisted the interruption of business as usual; later the administration changed its position and instituted a trade embargo.
President Reagan endured severe congressional criticism during his first term when, in 1981, administration officials voted against nonbinding regulations of the World Health Organization that sought to regulate the marketing of infant formula in the Third World. The Senate, although controlled by the Republicans, voted 89-2 to express its disapproval of the administration's position. (A standing vote in the House registered a 301 100 margin critical of the president's policy.) The Senate vote revealed a pervasive belief in the rights of Third World infants and mothers to adequate health and nutrition (affirmed by the U.N. Covenant on Economic, Social, and Cultural Rights). The Reagan administration did not repeat its defense of totally free enterprise within the World Health Organization, especially since the main target of the organization's action,. the Nestle Corporation, had accepted its guidelines.
Finally there is the type of consensual congressional action that reflects a preceding compromise on a contentious issue. Compromises frequently occur on omnibus or general bills. Both houses of Congress, for example, argued bitterly over the propriety of human rights provisions in legislation authorizing and appropriating economic and military assistance to El Salvador. But sometimes the final version of the human rights provision in the El Salvador bill was approved by consensus after various agreements had been made off the House floor. We can see this same type of final and general consensus vote on a measure dealing with funding programs for international refugees.
Many of the votes on human rights in Congress during the Carter and first Reagan administrations did not reflect consensus, a fact important in itself. There seem to have been several types of disagreements. First, a liberal-conservative split seemed to permeate congressional actions on human rights. Liberals were prone to target military regimes allied with the United States (Guatemala, Chile, the
28 / Human Rights and U.S. Foreign Policy
not linked to specific countries, also gave rise to liberal-conservative disagreements.
A second type of disagreement I label "smoke-screen votes," for on some occasions the human rights issue seemed clearly to be used in pursuit of other objectives. Though sometimes a judgment call, this classification can sometimes be appropriate. After various votes concerning the Panama Canal treaties during the Carter administration, for example, congressional opponents of the treaties tried to restrict the U.S. funding to Panama ordered by the treaties-the rationale for restriction being the alleged human rights deficiencies in Panama. Die-hard treaty opponents proposed the "human rights" amendments to legislation only after the treaties had been ratified by the Senate, but they did not long persist. When the treaties were no longer a salient issue, proposals for human rights in Panama receded. In this case and a few others, the "human rights issue" was clearly a smoke screen for some other primary concern. This type of vote and the first category of disagreement (liberal v. conservative over human rights) differ at least in degree. The liberal-conservative split on human rights is not the same as the disagreement over whether to use human rights as a means to some other objective, such as blocking the Panama Canal treaties after they had been ratified.
Finally, there seemed to be "special cases" of conflicting views on human rights. In 1980 Senator Adlai Stevenson, Jr. (D. Illinois) proposed a delay in providing economic assistance to Israel because of that government's settlement of Jews in the West Bank. Israel's policy violated the Fourth Geneva Convention of August 12, 1949, a treaty dealing with human rights in armed conflict which has provisions covering territory occupied through armed conflict. Senator Stevenson's proposal also sought to protect the collective human right of selfdetermination for Palestinians by preserving the possibility of the creation of a Palestinian entity in the West Bank '. This measure thus constituted human rights legislation on two grounds. But it remained a. special case. Matters involving Israel usually get sympathetic attention in the U.S. Senate. where Israel has many friends and where pro-Israel lobbies have been powerful. In any event, Senator Stevenson garnered only six votes for his proposal; many of the usual advocates of human rights in U.S. foreign policy voted against these human rights
Congressional Voting on Human Rights Measures / 29
international legal instruments in human rights. I have found Congress acting through both consensus and conflict. Consensus statements have included motherhood resolutions, criticism of the president, and compromise votes masking previous conflicts. Actions arising from conflict have included a liberal-conservative division on what human rights legislation to adopt, a smoke-screen vote that was not primarily a human rights vote, and a special case involving Israel. Setting aside consensus actions for the moment (because a statistical analysis of such votes cannot possibly illuminate anything), I now turn to congressional conflict over human rights in foreign policy. This legislative conflict has seemed to influence, or potentially to affect, U.S. foreign policy on human rights.
Senate Conflict over Human Rights.-In the early 1970s, Senate liberals, followed by liberals in the House, most often raised the human rights issue. They were reacting to the foreign policy of the Nixon-Kissinger team, which they regarded as amoral or immoral and insufficiently sensitive to human rights. Hence, the early proposals on human rights assumed a liberal character: restricting aid to countries holding political prisoners, invoking the cloture rule to compel a vote to ratify the genocide convention, prohibiting military aid to the Chilean junta, and so forth.
Conservative senators, after resisting these moves, countered by proposing their own human rights measures, raising human rights issues when introducing bans on assistance to leftist countries. Sometimes they argued that acceptable human rights standards had been met, as in motions to lift sanctions against the white minority regime in Rhodesia. At other, times, they emphasized human rights violations, as when trying to punish the regimes in Eastern Europe. Thus conservatives found that they too could play the game of human rights legislation.
As a result, one could no longer speak of beingfor or against more human rights legislation in U.S. foreign policy, as one could in the early 1970s, but rather for or against a particular type of human rights legislation. In the period under study, congressional activism on human rights peaked during the Carter administration. From the various and conflicting proposals that flooded Congress then, I have selected six representative liberal measures (see table 2. 1).
Table 2. 1. Human rights roll call votes, 1977 84: Senate liberal proposals
Congress CQ no. B ill no. Description vote
95th 59 174 Halt importation of Rhode- Yea
sian chrome, to comply with U.N. sanctions for self-determination in Zimbabwe (CQ, March 19, 1977).
95th 197 HR5262 Require U.S. delegations to Yea
international financial institutions to vote against loans for gross violators of human rights, unless fund s directly benefit basic human needs (June 18, 1977).
95th 243 S3075 Prohibit lifting of U.S. Yea
sanctions on Rhodesia until free and fair elections held with international observation (July 29, 1978). 97th 274. S1196 Require U.S. aid to El Sal- Yea
vador be linked with certified progress on human rights (September 26, 1981).
97th 321 S1196 Kill Helms amendment Yea
permitting military aid and sales to Chile (October 24, 1981).
97th 258 HR494 Require U.S. aid to El Sal- Yea
vador be linked with certified progress on specified human rights, including
-2 A_ .. -2 .11% -2
Congressional Voting on Human Rights Measures / 31
chromium and thus placed the United States in violation of United Nations mandatory economic sanctions on white minority rule in that former British colony. This liberal measure pertains, at its core, to self-determination and majority rule in what is now Zimbabwe. It is important to understand the context of this human rights vote. Other concerns had always been interwoven with the question of U.S. sanctions on Rhodesia in the name of human rights. The U.N. Security Council resolution approving sanctions was a rarity because it was legally binding and therefore called into question U.S. compliance with international law. Yet strategic concerns outweighed legal ones. Some argued that if the United States did not import Rhodesian chromium it might become dependent upon exports from the Soviet Union. Others worried that some American companies might suffer losses if the United States complied with the sanctions while other nations' firms violated them, with or without the knowledge of their governments. And there was the usual question.of whether a senator should support the president's policy in foreign affairs, a question entangled in partisan and institutional loyalties. About the time of this vote, the Senate voted nine additional times on various Rhodesian alternatives. On balance, conservatives stressed strategic and economic priorities, liberals stressed human rights and compliance with international law. (That liberals rather than conservatives should prefer international law and order is an irony that need not detain us here.) Finally, another possible concern, not explicitly voted upon or voiced in debate, was racism (an affinity for whites, a skepticism of black capacity for democratic selfgovernment). In sum, this first liberal Senate vote, apparently simple, was in fact complex. A yea vote was pro-human rights, indicating a desire to return to economic sanctions in support of human rights in Rhodesia.
Also in 1977 various liberal senators sought to push human rights considerations onto international financial institutions such as the World Bank. As noted, President Carter resisted this move (despite his rhetorical support for human rights), as did Robert McNamara, president of the World Bank. Some argued that such an effort politicized the multilateral banks by introducing noneconomic factors. Nevertheless, some liberal senators persisted, and the second vote in the study reflects the effort to add a "Harkin amendment" to the legislation autho-
32 Human Rights and U.S. Foreign Policy
against loans to countries that were grossly violating human rights unless the loans would directly improve basic human needs in those countries. At the time of this Senate vote, there were seven other proposals before the Senate concerning international financial institutions. Some of these measures would have labeled certain leftist countries as ineligible to receive U.S. support (Cambodia, Cuba, Laos, and Vietnam). Others would have reduced funding in general, whether forhuman rights or other reasons. Again, while this debate centered on human rights, economic, strategic, partisan, and institutional interests obviously affected it. A yea vote was pro-human rights.
Throughout the late 1970s, the, Senate entered further into the Rhodesian imbroglio. Conservatives tried repeatedly to force President Carter to lift U.S. economic sanctions. The third vote in the study reflects a liberal counterattack. In 1978, liberals proposed an amendment to the foreign military aid bill, specifying that no U.S. sanctions against Rhodesia could be lifted until free elections were held under international observation. All of the crosscutting issues found in the first vote were still at work. In addition, there was the question of whether the steps taken by the Rhodesian whites to alter the status quo warranted a change in U.S. policy. (This type of vote and issue resurfaced in the 1980s on the issue of white minority rule in South Africa.) Free elections to secure self-determination and majority rule remained the central issue. A yea vote was pro-human rights.
Few issues in the Senate were more controversial than the one in 1981 leading to the fourth vote in the study. With Ronald Reagan by then in the White House, liberals pushed the idea that U.S. assistance to the government of El Salvador should be made conditional upon a president's certifying that progress was being made in certain human rights matters. Supporters of this move claimed that U.S. assistance would not produce a stable government in that poor and conflict-ridden country unless human rights reforms accompanied it. It was feared that assistance without progress in human rights would lead to the same tyranny that had plagued the country before. Opponents argued several points: (1) that since the president was committed to human rights reforms, there was no need for a specific timetable based on periodic certification; (2) that in the context of admitted human rights problems, a lack of certification and hence a cutoff of U.S. assistance
Congressional Voting on Human Rights Measures / 33
they came to power, compile an even worse human rights record. Other arguments on both sides focused on the president's credibility in pressing for human rights reforms, the wisdom of legislating foreign policy, the amount of progress that had been made on human rights, and the real need for security assistance. The fact that Democrats voted overwhelmingly for the proposal (37-7) while Republicans opposed it two to one (17-35) indicates that partisan views played some role. A yea vote was pro-human rights.
The fifth vote reflects long Senate involvement in foreign policy toward Chile. Since the overthrow of President Salvadore Allende in 1973, Chile had been watched closely by Senate liberals, primarily because of the harsh rule of the subsequent junta under President Augusto Pinochet. It had been one of the first countries designated by Senator Edward Kennedy (D., Massachusetts) and others for reduced or terminated U.S. assistance. Many conservatives in Congress headlong disliked this emphasis on Chile, generally believing that Chilean violations of human rights should be overlooked in the name of security (it was rabidly anti-Communist) or economics (it was open to U.S. corporations under principles almost purely capitalistic). In 1981, Senator Jesse Helms (R., North Carolina) proposed that the president be authorized to resume military aid to Chile, arguing specifically that the 1976 ban on military sales and assistance was much harsher than anything the Senate had done to South Africa, Angola, Vietnam, or Cambodia. Liberals tried unsuccessfully. to table the amendment. A vote to table was a pro-human rights vote. (Though the Helms amendment passed, later congressional action required the president to certify Chilean progress on certain human rights issues, including the intended extradition of the Chileans indicted by a U.S. grand jury for the murder of two persons on U.S. soil, a certification that could not be fudged by the executive branch. Thus, while Congress lifted the ban on military assistance with one action, the specific ban it imposed with its second action has effectively blocked military assistance to Chile. Helms won a battle but continued to lose the war.)
The sixth liberal proposal again involves presidential certification of progress on human rights, this time in El Salvador, as a condition for continued economic and security assistance. There are at least two reasons for including this 1983 measure on El Salvador, even though it
34 Human Rights and U.S. Foreign Policy
debated and wrangled over it, the president applied pressures because of it, and constituencies showed considerable interest in it. For all of these reasons, a senator probably considered carefully any vote on El Salvador. Second, the certification measure proposed was more precise than the others, indicating as one of the conditions for continued U.S. assistance the necessity of progress in the effort to bring to justice the killers of six Americans. It was a certification on human rights that the executive branch could not treat lightly. A yea vote was pro-human rights.
Though certain proposals on human rights came --from conservatives, some of the liberal legislation discussed was proposed to countervail conservative measures. Three such conservative acts bear detailed analysis (table 2.2).
In 1977, in the context of a broad debate on U.S. policy on international financial institutions, Senator Robert Dole (R., Kansas) proposed that U.S. delegations to such institutions oppose loans to Vietnam,, Laos, and Cambodia on human rights grounds. This suggestion substituted for an earlier proposal that had also included Cuba, and Dole made it after liberals had proposed a general measure, noted earlier,, on gross violations of human rights. Dole wanted to ensure that these three communist countries were defined as gross violators. His measure passed but was dropped later from the bill reported out of conference committee. Liberal and conservative members,, and the president, eventually accepted more general language that did not name specific countries. Though the Dole measure was conservative, a yea vote was pro-human rights.
Senator Helms proposed.the second conservative measure after the House had voted to restrict foreign aid to Idi Amin's Uganda. When that 1978 House measure came before the Senate, Helms added to it three communist states (Vietnam, Cambodia, and Cuba). This Helms amendment succeeded in the Senate, with Democrats as well as Republicans voting for it overwhelmingly. A yea vote was pro-human rights.
The third conservative vote in the Senate concerns a 1983 measure involving U.S. policy toward the International Monetary Fund (IMF). Senator Gordon Humphrey (R., New Hampshire) proposed that the U.S. delegation to the IMF vote against drawing rights (or loans) for
Congressional Voting on Human Rights Measures 35
Table 2.2. Human rights roll call votes, 1977-84: Senate conservative
Congress CQ no. Bill no. Description vote
95th 202 HR5262 Instruct U.S. delegations to Yea
international financial institutions to vote against loans to Vietnam, Laos, and Cambodia (CQ, June 18 1977).
95th 172 S3074 Prohibit any U.S. assis- Yea
tance to Vietnam, Cambodia, Cuba, and Uganda (July 1, 1978).
98th 121 S695 Motion to table amendment Nay
that would instruct U.S. delegation to IMF to oppose loans to nations not holding free elections and not allowing free emigration (June 11, 1983).
Senator John Heinz (Pennsylvania), moved to table this amendment, both Republicans and southern Democrats divided and the motion to table succeeded, thus defeating the substantive motion. A pro-human rights vote thus became a vote against tabling, but in this case a prohuman rights vote also promoted a conservative interpretation of human rights, one that directs human rights concerns only against communist regimes that are also strategic adversaries of the United States. (The People's Republic of China, for example, is not thought to restrict emigration unreasonably.)
House Conflict over Human Rights. -A number of proposals intro-1 *__ -11- YT_ __ --- --I- I -1 A-1- __ *__ AAL C1__ -A. __ A *_ --- -
36 Human Rights and U.S. Foreign Policy
Table 2.3. Human rights roll call votes, 1977-84: House liberal proposals
Congress CQ no. Bill no. Description vote
95th 116 HR5262 Authorize funding for Yea
international financial institutions, including requirement that United States vote against loans to nations with a consistent pattern of gross violations of human rights (CQ, April 9, 1977).
95th 253 HR6884 Delete $700,000 in mili- Yea
tary aid for Argentina and prohibit military sales because of human rights violations (May 28, 1977). 95th 325 HR5262 Instruct House delegation Yea
to conference committee to insist on international financial institution language restricting loans to gross violators of human rights (June 17, 1977).
representatives introduced proposals different from those already voted on in the Senate. I ended*up with House votes from the Carter administration only. Human rights votes peaked in the House then, and thus they greatly outnumbered votes during the first Reagan administration. Also, the votes from the Carter period were roll call votes on clearer human rights measures. I would have preferred to add some "clean" roll call votes from later years but was unable to find any (table 2.3).3
The first bill concerns the familiar vote on whether the U.S. dele-
Congressional Voting on Human Rights Measures 37
should vote against loans to countries with consistent and gross violations of human rights unless such loans would aid the most needy people. It was the generic "Harkin amendment," which, in its original House form, required a negative U.S. vote in the international financial institutions and which was therefore different from the final adoption requiring that the United States vote to promote human rights through these institutions. The Harkin amendment thus passed but was altered through conference committee bargaining with the Senate.
The second item involves an effort led by Congressman Gerry Studds (D., Massachusetts) that failed by thirteen votes (187-200) to delete $700,000 in military assistance to Argentina and ban military sales there. This human rights proposal first passed on a small standing vote but was reversed on a roll call. As with similar legislation, it is not clear to what extent representatives rushing onto the floor for a roll call were familiar with the arguments on either side of this conflict. Republicans voted overwhelmingly against it, despite the opportunity to grab the initiative in making foreign policy during a Democratic administration.
The third vote-again about the question of human rights and indirect assistance-was a follow-up to the first vote. It instructs House members of the conference committee on international financial institution authorization to maintain the House-approved language on human rights. It is, thus, a vote that indicates the depth of commitment to the human rights provision despite efforts from the White House and the World Bank to weaken it. Offered by a Republican (John Russelot, California), the amendment was rejected 161-200.
From the evidence of these votes and from other sources, we may observe that the House during the late 1970s voted conservatively on many foreign policy questions. In general it was more conservative than the Senate on the Panama Canal treaties, which were debated at this time. Thus it is not difficult to identify several conservative human rights proposals introduced in the House during this era (table 2.4).
The first of these conservative measures is an amendment offered by Congressman Clarence Miller (R., Ohio) to restrict international financial institution loans to Cambodia, Cuba, Laos, and Vietnam. It was rejected 165-190 in favor of more general language that did not name specific countries.
38 /Human Rights and U.S. Foreign Policy
Table 2.4. Human rights roll call votes, 1977-84: House conservative
Congress CQ no. Bill no. Description vote
95th 115 HR5262 Prohibit international finan- Yea
cial institutions from using U.S. funds for loans to Cambodia, Cuba, Laos, or Vietnam (CQ, April 9, 1977).
95th 344 HR12 157 Delete Sullivan principles Nay
as condition for ExportImport Bank loans to South Africa (June 10, 1978).
95th 566 HR12931 Prohibit indirect U.S. aid Yea
to Uganda, Cambodia, Laos, and Vietnam (August 5, 1978).
96th 353 HR3 17 Disapprove president's ex- Yea
emption of Romania from human rights provisions in 1974 Trade Act (July 28, 1979).
Bank and indicates the complex choice offered in the House. Its supporters hoped to delete what was thought to be soft legislation on the subject of South Africa and the bank. Tough language forbiddin g bank activity with South Africa had been replaced with the Sullivan principles, which required the secretary of state to certify to Congress that loan recipients in South Africa followed policies of racial integration in their labor and management practices. This language greatly restrictedl the bnk's1 ac-tivrity in Souith Afrinnca,nince the, scretn-aliry did
Congressional Voting on Human Rights Measures / 39
not make the required certification for a number of years; yet it was still too much for some representatives. Congressman John Ashbrook (R., Ohio) pressed for elimination of the Sullivan principles but lost 116-219.
The third conservative proposal again attempted to restrict indirect U.S. economic assistance in the name of human rights, this time to Uganda, Cambodia, Laos, and Vietnam. Even the addition of noncommunist Uganda to the list of leftists did not save this measure from defeat (198-203). but it made the vote closer than the first, and related, conservative measure of a year earlier.
A final conservative proposal is complex. Under the Jackson-Vanik amendment to the 1974 Trade Act, a nonmarket society unreasonably restricting emigration is to be denied most-favored-nation status in its trade with the United States. But the president can waive this provision for twelve months if a particular country is loosening its restrictions. Even though emigration may not be free, the president can, in effect, declare that the country is moving in the right direction. Such a presidential waiver is subject to congressional review under the terms of the 074 act. When President Carter issued such a waiver for Romania in
1979, several representatives moved to disapprove of the presidential action. This effort failed 126-271., with even southern Democrats voting against it 13-65.
Data and Methods
For analysis, voting on each of these measures was coded, with paired votes coded the same as actual votes. Two human rights scales were created for each house, one for what has been termed "liberal" human rights votes, the other for "conservative" ones.
The Variables. -Constructing the dependent variable human rights scales posed a problem because of the eight-year span of the study. Many members were not present over this period spanning three congressional elections. The scale score is therefore the number of prohuman rights votes divided by the total number of human rights votes cast, or paired for, by each member. Thus, the range extends from 0 to 100, with 100 representing a perfect pro-human rights voting pattern.
The advantage of this measurement is that it allows al I members to
Ik" rrI__ _'_ &l-- ___ __
40 / Human Rights and U.S. Foreign Policy
specially for members whose terms do not overlap. It is the only system, however,, that allows a longitudinal perspective on these votes.
Independent variables include a measure of voting on national security issues compiled by the American Security Council. On this socalled National Security Index, a high score generally indicates voting for higher military spending and usually a conservative slant on foreign policy. Party affiliation and seniority are other salient political aspects of the member. Constituency characteristics used here include a fivefold regional categorization (South,, East, Midwest, Far West, and border states). Four dummy variables are used, with the Far West omitted. The three constituency factors examined are the electoral margin in the member's most recent election, the amount of military spending in the district, and the district's mean level of education.
Methods. -To examine the characteristics that -distinguish pet-sons favoring human rights measures from those opposing them, I first constructed a simple causal model. I hypothesize direct relationships between the dependent variable and each of the independent constituency and political variables except for party identification. For methodological rather than theoretical reasons, this first model does not assume that party affiliation has a direct effect on human rights voting. A high multicollinearity between party and the National Security Index makes it impossible to obtain a reliable fi gure for the direct impact of party identification on voting.'
I posit an indirect effect of constituency, party affiliation, and seniority variables through NSI voting. Since the NSI measure is constructed from pre vious votes on national security issues, it is logical that the other political and constituency variables affected the NSI score and thus have an indirect effect on human rights voting.
Though it can be refined, this first model has advantages, one of which is replication of the earlier study. In a second model, I examined the direct effects of party 'affiliation on human rights voting by dropping the NSI as an independent or intervening variable. Doing so solves the problem of high multicollinearity between party and the NSI in a second way. It also allows us to test the extent to which party has an effect on national security voting. By dropping the NSI and inte ecting party affiliation into a direct relationship with human rights votes, one can see the extent to which the findings from model two differ from
Congressional Voting on Human Rights Measures 41
The Senate.-Our first model explains voting on the Senate human rights issues fairly well, with total R' of 0. 45 and 0. 60 for conservative and liberal voting, respectively. As one might expect, votes on conservative and liberal human rights measures mirror one another. The factors that predict a pro-liberal human rights score also predict an anti- conservative human rights score and vice versa.
Attitudes toward national security, as indicated by the NSI, are the best indicators of who will vote for or against human rights measures (significant links are presented in figure 2. 1). A high NSI score is strongly related to pro -conservative (beta = 0.56) and anti-liberal human rights voting (beta = -0.71). The magnitude of the effect is similar, the two standardized coefficients being 0.52 and -0.59, respectively..How one votes on a general series of foreign and military issues is thus an excellent predictor of how one will vote on more spe7 cific human rights issues.
Other direct effects on human rights voting are minimal. Seniority is related to a more conservative position on the liberal human rights scale, but the effect is modest. Those winning election by a substantial margin are less likely to support conservative human rights issues. Perhaps greater electoral security allows freedom from supporting bills aimed at leftist regimes. However, this effect is very small. No other direct effects are significant.
Despite these minimal direct effects from factors other than NSI voting, we can see from figure 2.1 that various factors indirectly affect our human rights scales, the strongest effect that of party affiliation. It is highly related to NSI voting, with a beta value of over 0.7. Its indirect effect on human rights voting, through NSI, is therefore substantial: 0.51 in the case of liberal human rights voting and -0.40 in the case of the conservative scale. Democrats are substantially more likely to support liberal human rights measures, Republicans conservative ones.
'Other significant indirect paths through the NSI include those of region and amount of military spending in the district. Contrary to predictions,, military spending is negatively related to NSI voting. Legislators with more military spending in their district are more likely to support liberal human rights measures (indirect effect 0. 14) and
-0 -.2 -2 -2 -2 '. .1 0
Conservative human rights Liberal human rights
Defense spending Defense spending
South South .3
Pat 3 5_Conservative 714human
Pary .7 ~ NSI .5>human rights PryNSI--.*rgt
identificationPat vote score identification vt
Magn(R' .45) Seni ority (
a. Significant at .052. Others significant at :!E .05. Coefficients are betas. Note: R 2 with NSI the dependent variable,) .64.
Fig. 2. 1. Path model of human rights voting in the Senate (significant paths only)
Congressional Voting on Human Rights Measures / 43
effect -0. 11). As predicted, southerners are more likely to support conservative measures, northeasterners liberal ones. This last finding comports well with regional differences in conservatism in Congress.
Thus, voting on human rights bills seems to be driven by ideological and partisan considerations: Democrats who vote "liberal" on national security issues also support liberal human rights measures and oppose conservative ones. Republicans who vote "conservative" on national security issues support conservative human rights measures and oppose liberal ones.
These results raise a question of whether human rights voting is only an tieii-sion of larger ideological contests. Are there no indtividualIs sotpdiiv__e of human rights measures across the political spectrum, who want to punish or reform regimes 'violating human rights whatever their political orientation? To answer this question, I calculated a mean score for the two human rights scales to form a composite index of support for human rights. This measure gave equal weight to liberal and conservative scores no matter how many votes on each a member had participated in.
An analysis of this new scale shows that our model explains little of the variance, only 7 percent. No variable was significantly related to this overall measure. Thus, overall partisanship and national security factors do not predict support for human rights. This low R' indicates that it is necessary to look at different kinds of human rights voting to be able to predict and understand voting patterns on this issue.
Some members such as Dennis DeConcini, Gerald Ford, Richard Schweiker, and several others, strongly supported human rights across the board. At the other end of the scale were senators whose support for only one kind of human rights position netted them a low overall score. This mixed group included liberals such as Ted Kennedy and Charles Percy, who scored very low on the conservative human rights measures, and conservatives such as John Tower, Jake Gain, and John Stennis, who scored very low on the liberal measures. No members scored low on both liberal and conservative human rights scales, indicating again the basic ideological underpinnings of these votes for most members.
The House. -There are striking similarities between voting in the House and in the Senate. Overall the model predicts House votes
nearlyall as Seat cosrvtv hua riht voes bu.i.ere
Conservative human rights Liberal human rights
Seniority ---J 3 Seniority -- .20
Party -.6 -.69
NSI human rights NSI
(R 2 .44) (R 2
N = 410 N
Note: R 2 with NSI the dependent variable, .52 for conservative scale, .55 for liberal.
Fig. 2.2. Path model of human rights voting in the House (significant paths only)
Congressional Voting on Human Rights Measures / 45
voting behavior was the best predictor of human rights voting, and in the same direction as in the Senate. Seniority had a stronger effect in the House; senior members were less predisposed to vote for either liberal or conservative measures. This is the one exception to our mifforimage generalization, where characteristics predicting a strong liberal human rights vote predicted a weak conservative one. Senior members of the House are less interested than others in protecting human rights at the possible expense of other foreign policy goals. Education was related weakly to a liberal pro-human rights voting pattern; and northeasterners in the House, unlike those in the Senate, had a higher conservative human rights voting record. This result was unexpected, since in both chambers northeasterners as a group are more liberal than legislators from other regions.
As in the Senate, party affiliation had a strong, indirect effect on human rights voting, while region and seniority had weaker ones. The generalizations made about the Senate hold true for the House: in the House, human rights voting is most strongly predicted by ideology and partisanship.
I also examined a mean scale score of conservative and liberal human rights votes similar to the Senate scale. Again, the model was poor in predicting human rights voting overall, with an R' of only 0. 10. While three members had perfect human rights voting scores, patterns of ideology or partisanship were not apparent overall. As in the Senate, both liberals and conservatives scored low on human rights voting.
The findings from the second model are represented in tables 2.5 and 2.6. When I remove the National Security Index as an independent or intervening variable and examine the direct effect of several independent variables (including party affiliation) on human rights voting, I find that political party identification in the Senate is significantly related to each scale in the expected direction. If we take all human rights measures, we find that Democrats are more likely to vote to support human rights bills (beta 0. 3 3, t 2.76). No other variable significantly influenced overall human rights voting. Hence the R 2 of all independent variables is a modest 0. 16.
Looking next at liberal human rights measures, one can see that party affiliation more powerfully predicts voting (beta 0.54, t P" .1 tN \ 10--- Is 0 t% .2. .
Table 2.5. Predictors of human rights voting
All Liberal on human rights Conservative nhmnrgt
b beta t b beta t b bt
Senate (N = 79, 126)
Party 10.3 .33 2.76* 30.57 .54 7.18* -13.14 -.2 192
Seniority -.17 -.09 -.73 -.52 -.15 --2.OO* .04 .0.1
Education -.40 -.18 -.91 -.41 -.09 -.74 -.52 -.2 .6
Margin of last victory -.25 -.18 -1.45 -.03 -.01 -.12 -.41 -1 12
district -.00 -.14 -.90 .00 .16 1.84 -.00 -2 16
Northeast -3.26 -.08 -.60 14.99 .19 2.36* 19.96 -.4 200
Midwest -3.62 -.10 -.73 7.56 .12 1.39 -11.87 -1 13
South -11.57 -.32 -1.56 -28.02 -.41 2.98* 9.68 .1.7
Border 2.80 -.06 -.30 -12.31 -.12 -1.15 -2.94 -.3 .1
House (N = 321, 370)
Party -1.77 -.05 -.99 17.31 .3 1 6.65 -23.41 -.2 898
Seniority -.44 -.22 3.87* -.89 -.26 ~5.57 -.27 -.8 164
Education .22 .12 1.85* .53 .17 3.12* .03 .0.9
Margin of last victory .09 .06 1.11 .17 .08 1.54 -.04 -.2 .3
district -.00 -.03 -.43 -.00 -02 -.43 .00 .6 11
Northeast 4.16 .12 1.58 5.57 .09 1.50 4.73 .7 11
Midwest -.88 -.03 -.31 3.70 .06 .95 -1.84 -.3 -4
South -.84 -.02 -.27 -15.47 -.22 -3.53* 15.07 .2 370
Border -.5 -.10 -1.64 -12.50 -.12 -2.40* -.21 -.0 .4
* Significant at .05.
48 IHuman Rights and U.S. Foreign Policy
Table 2.6. Changes in R 2 when NSI substituted for party affiliation in model
Total human Liberal human human
rights scale rights scale rights scale
House Senate House Senate House Senate Model 2
R 2, party has
direct effect .11 .16 .27 .44 .21 .24
R 2, NSI has direct effect,
party indirect .10 .07 .42 .60 .44 .45
Effects of party
in model I a -.05 .04 .36 .51 -.44 -.40
a. Indirect effect equals the effect of party on NSI times the effect of NSI on the voting scale. All other variables listed in table 2.5 have been controlled in calculating these effects. The R 2 listed are the totals for the entire equation.
position; living in the Northeast has the opposite effect. And, as expected, seniority has a significant negative relationship with liberal human rights.
Patterns are nearly the reverse on Senate conservative human rights measures. Republicans become the most pro-human rights members, while northeasterners are the least supportive. Southerners do not show a distinctive position on this scale, and military spending in the district continues, surprisingly, to have a negative effect-although the correlation remains insignificant.
As expected, this model more accurately predicts voting on liberal and conservative human rights measures than on overall human rights voting. Forty-four percent of the variance is explained in liberal human rights voting, 24 percent in conservative voting.
In the data on the House, we see similar but not identical patterns. The predictive power of- the independent variables declines in each case, especially on the liberal human rights. scale. There, ouir predic-
Congressional Voting on Human Rights Measures / 49
tors explain only 27 percent of the variation compared to 44 percent in the Senate
When considered wholly, party affiliation does not influence human rights measures in the House. An examination of the other two scales indicates why: party affiliation relates powerfully, in opposite directions, to each of the other two scales. Democrats are much more likely than Republicans to vote in favor of liberal human rights measures, while the reverse is true on conservative bills. In the Senate, party voting was much stronger on liberal measures, with the effect that Democrats voted in a more pro-human rights direction on the general scale.
Beyond the effect of party identification, the other independent variables show more or less the same significance and direction as found in the first model. Southern representatives, however, gave significantly more support to conservative human rights proposals than did southern senators.
If we compare the two models, it is clear that inclusion of the NSI (with party affiliation considered an indirect influence on human rights voting)_ allows us to explain more about human rights voting. The differences are presented in table 2.6. While party affiliation does directly affect voting, it explains between 42 percent and 60 percent of the variance in human rights voting on liberal and conservative proposals when combined with orientation toward security issues. The explanatory power of either model remains low for all human rights proposals considered.
Party, Ideology, and Human Rights
In this chapter I have analyzed congressional voting on human rights during the years 1973-84, drawing on an earlier study that compiled information from 1973 to 1976. My main finding is that, when taken as a whole, human rights votes are difficult to predict. As a group, they are not a function of obvious-pArt sans-hip,,,..,,,id.eol.o,g or constituency
YR when these votes are divided into what I have termed liberal and conservative human rights proposals, voting patterns become quite distinct. Republicans and conservatives tend to vote in favor of human rights policies protecting rightist regimes and punishing leftist ones.
50 / Human Rights and U.S. Foreign Policy
Democrats and liberals tend to vote the opposite way. Both party affiliation and voting record on national security issues are good predictors of these two forms of human rights voting.
As we expected, constituency factors are generally weak predictors of human rights voting. Even when indirect links through national security votes are examined, factors such as region and other constituency characteristics have little or no effect on voting. RAjhgr,,_hu!nan rights voting stems clearly from party affiliation-and, ideology.
A'-'r6"-w"."i'..naividuals vote or human rights across the spectrum, but they are isolated cases and are not easily predictable. Few member's of Congress vote consistently against human rights; rather, many vote against human rights bills that seek to impose negative sanctions on a favored regime.
From one point of view, these conclusions are hardly surprising: human rights legislation offers an opportunity for. liberals to vote with other liberals and for conservatives to vote with other conservatives. From another point of view, our findings show that few members of Congress manifest either a clearly strategic view in their voting on human rights or a clearly ethical one. Unlike Henry Kissinger, few members would always downgrade human rights in the belief that strategic considerations should predominate over the "domestic" matter of human rights. But few would elevate human rights to a consistently high position in U.S. relations with regimes of every stripe.
Human rights voting in Congress is largely but not completely a partisan and ideological matter, a prospect that cannot be viewed with optimism by the victims of politics in various foreign nations. While members of Congress will. occasionally unite to approve human rights measures concerning South Africa, for example, on many human rights resolutions party and ideology prove to be divisive.
The Fate'of General Human
It seems sort of foolish to have to say "and we meant it" with respect to various legislation. Even so, there may have to be legislation that says I I and we meant it. That is, if the administration seems to flout guidelines in the law as to U. S. programs, then the Congress simply has to have outright prohibitions and not merely discretionary determinations by the
spokesman for Americas Watch,
in congressional testimony, October 1983
I will examine general human rights legislation by looking first at the "big three" subjects for human rights linkages: security assistance, economic assistance, and international financial institutions. Statutes in each of these areas supposedly denied U.S. foreign assistance when a consistent pattern of gross violation of internationally recognized human rights" obtained. Then I will analyze the congressional effort to revise U.S. refugee law, to link communist trade privileges to emigration, and to use the U.S. Export-Import Bank as an instrument for human rights.
I will show that despite assertiveness in approving human rights legislation, Congress has great difficulty forcing the executive branch to comply with its requirements. The Reagan administration shows especially well how a determined executive branch can frustrate the apparent will of Congress. During the 1980s Congress has been neither attentive enough nor unified enough to see that general legislation on human rights was implemented. In the case of the big three mandates,
52 Human Rights and U.S. Foreign Policy
said openly it was doing so. On revision of the refugee law, Congress was badly splintered, and on the Export-Import Bank it showed little enthusiasm for restricting American exports because of human rights violations abroad (except in South Africa). Only on communist emigration did Congress persevere and effectively oversee what it had originally legislated. As usual, communist violations of human rights were a case apart.
While Congress may not be able to oversee its general legislation effectively, it can compel an administration to follow its will in particular cases. An administration may choose to ignore general legislation, but the intent of the legislation may be applied to particular countries by Congress. The Reagan administration refused to link U.S. foreign assistance to human rights considerations, said so openly on occasion, and got away with it in general; but it also found itself facing legislated bans on security assistance to Guatemala, on economic assistance to Chile, and so forth. This latter phenomenon is treated in subsequent chapters.
Section 502B of the Foreign Assistance Act of 1961, as amended, reads in part that "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights unless the President certifies in writing to the [Congress] that extraordinary circumstances exist warranting provision of such assistance." This measure, offered in 1974 as a sense-of-the-Congress resolution, was made binding in 1978. The law further states that if the president certifies extraordinary circumstances, "The Congress may at any time thereafter adopt a joint resolution terminating. restricting, or continuing security assistance for such country." Among other provisions, Section 502B states that "licenses may not be issued under the Export Administration Act of 1979 for the export of crime control and detection instruments and equipment" to a gross violator of human rights unless the president certifies the need otherwise (see Appendix A).
The Carter administration was the first to have the responsibility for implementing. Section 502B as law, and it is now clear that it paid some
+,e% +1%.On evr% +1%,.%
The Fate of General Human Rights Legislation 53
binding.' The Carter administration never formally named a gross violator nor formally certified extraordinary circumstances, and even within the Department of State it was not completely clear how Section 502B affected executive decisions. To some participants in the department, it seemed that the section was applied to twelve countries: Argentina, Bolivia, El Salvador, Guatemala, Haiti, Nicaragua, Paraguay, Uruguay, the Philippines, South Korea, Iran, and Zaire. The last four seemed to fit the category of extraordinary circumstances; security assistance was actually terminated to the first eight.
It also seemed clear that the State Department bureaucracy, especially in the geographical bureaus, did not want to implement this statute. It is clear that the higher officials, while they might pay some attention to the statute,, would not execute the letter of the law by publicly naming consistent violators or by formally certifying exceptions.
There were also times when Section 502B was largely ignored. Indonesia's security assistance was never restricted, yet its government held thousands of political prisoners for long periods and engaged in protracted brutal actions in East Timor. The Carter administration recommended increased military assistance to El Salvador in 1980 and early 1981 though accounts of flagrant violations there were undenied. At approximately the same time, the administration sought increased military sales and the transfer of military equipment to Guatemala despite the continuation of massive violations of human rights.
These actions by the Carter administration went effectively unchallenged in Congress, except those concerning Guatemala. Congress held hearings on human rights violations, including those in Indonesia and East Timor, but only congressional denial of proposed military items to Guatemala in 1980 for 1981 delivery forced a change in executive policy.
Information on the transfer of crime control equipment, including items that might be used for torture, mistreatment, or general repression, is classified by the government. Interviews in Washington indicated that the Carter administration did seek to implement this provision. The Bureau of Human Rights maintained a list of nations seeking such equipment and pressed the Department of Commerce to restrict sales to certain countries. American companies and the Department of Commerce wanted the transfers, thinking human rights restrictions an
54 / Human Rights and U.S. Foreign Policy
others in the Carter administration sometimes blocked such transfers on the basis of part of Section 502B. The confidential reports sent to Congress seemed to satisfy the few members of Congress and their staff members who monitored these events.
The Reagan administration changed overall policy drastically, wanting to increase security assistance to anticommunist countries. It refused to reduce security assistance or sales because of human rights considerations, thus ignoring the spirit and letter of Section 502B, and there were two reasons for its refusal. First, the United States faced a clear and present danger from the Soviet Union, its allies, and proxies, so it should respond with more, not less, security assistance. Second, repressive allies of the United States, by definition, were better thancommunists because they would eventually move toward democracy; therefore, by definition they did not engage in a- consistent pattern of gross violations of human rights.
This view, called by some the Kirkpatrick thesis on dictatorships and double standards 2 was in fact the first Reagan administration's policy on most of Section 502B. Elliott Abrams, the assistant secretary of state for human rights and humanitarian affairs, repeated it consistently during the period 1981-84: he said in 1983, "It sometimes seems to me that the essential difference between' the Reagan administration and its critics comes down to the single fact.that we believe the world to be an exceedingly dangerous place while our critics do not seem to. 11 3 His statement implied that there was no room to maneuver,, that one simplydid not have the luxury of manipulating security assistance for human rights reasons. In an interview in 1983, Abrams also said, "You could make the argument that there aren't many countries where there are gross and consistent human rights violations except the communist countries because they have the system itself. It is certainly a plausible way of reading the statute."' He added, "What portion of the population in Country X, a Third World country, a Latin American country, if you will, is killed or tortured? It will vary, of course, it is not 100 percent; whereas, in a communist country the portion of the population whose political and civil rights are destroyed of course is 100 percent because it is a dictatorship 5
This line of argumentation was followed sometimes in congressional hearings by Abrams and other administration spokesmen. In noncom-
The Fate of General Human Rights Legislation / 55
human rights violations was not completely consistent. No matter how poor the human rights record, there was always the interpretation of improvement. It followed, for the administration, that if anything positive occurred in a right-wing country, Section 502B did not apply. This tactical and legalistic position supported a more fundamental view that, given the communist threat, security assistance and sales should go forward as existing or proposed.
From 1981 to 1984, the Reagan administration reduced or terminated no security assistance for human rights reasons. Indeed, security assistance rose 300 percent from 1980 to 1984.'
Congress approved this increase in security assistance and did not object to the Reagan administration's burial of the core provisions of Section 502B". Some persons criticized the administration's treatment of this and other human rights statutes involving the phrase "consistent pattern of gross violations of internationally recognized human rights. These critics were found mainly in a few private groups and House committees or subcommittees dealing with foreign affairs. But with the exception of certain Latin American countries, the administration generally got the security assistance it wanted. Congress did use countryspecific legislation to limit, or to block for a time, military assistance or arms sales to Argentina, Chile, El Salvador, and Guatemala. Many members of Congress or their staff members indicated in interviews in 1984, however, that the core of 502B was moribund. The administration would not implement the law, and Congress would do nothing to force compliance. Hence, congressional action shifted to countryspecific legislation primarily involving Latin America.
The Reagan administration did, by contrast, seek to implement that part of Section 502B dealing with crime control equipment. In this respect it resembled the Carter administration. In fact, Reagan's human rights team may have exceeded Carter's in vigor and effectiveness, although it is difficult to know since the overall picture remains classified. Interviews toward the end of 'the first Reagan administration revealed that, in one year, Reagan's people at the Department of State blocked the export of more crime control equipment in the name of human rights than had Carter's. In fiscal year 1983, the Department of Commerce sent 238 applications for export licenses worth $12.7 million to the Department of State for review. It denied licenses worth
56 / Human Rights and U.S. Foreign Policy
guay, and Syria. By contrast, the Carter administration had denied, for fiscal year 1980, ten cases totaling $680,000, mostly affecting rightist governments in Latin America but also the Soviet Union and Iran.
Under the Reagan administration, however, several controversial transfers were approved only to be rescinded under negative publicity. Shock batons-said to be for cattle control but obviously used by police forces against persons-were approved for both South Africa and South Korea, and equipment that could be used for torture was approved for export to all NATO countries, including Turkey, where torture was a fact admitted even by the administration. These approvals were variously attributed to insensitivity by the Department of Commerce, laxness by the Department of State, or other causes. Congress played a role in pressuring the executive branch to change these specific approvals. Congressional interviewees from both parties seemed satisfied with the Reagan administration's overall record on this particular part of Section 502B, probably because there had been no major change from the Carter period, although some interviewees were incensed that shock batons and torture equipment could still be approved initially to South Africa, South Korea, and Turkey.
To summarize actions regarding Section 502B from 1978 to 1984, one can see similarities between the Carter and Reagan administrations. Both wanted to maintain executive flexibility in diplomacy and therefore did not want to name gross violators or formally certify exceptional situations. Both thought the strict requirements of this law pertaining to military assistance and sales were counterproductive to U.S. strategic needs. Neither wanted to offend client states or make relationships more difficult in the future by publicly applying the letter of law. Both administrations, however, blocked the transfer of crime control equipment to an apparently sizable number of countries. Such barriers could be erected in a classified process that normally avoided public embarrassment for both Washington and the client state. And such equipment could be seen sometimes as a genuine human rights issue, separate from the question of defense from external aggression or subversion. Even so, the Department of State under both presidents had to contend with strong support for unrestricted transfers by the' Department of Commerce.
There was a real difference between the administrations as well. The
The Fate of General Human Rights Legislation / 57
clear nor consistent, but there was the possibility from 1977 to 1980 that Section 502B would be used within the executive branch to justify a reduction or termination. The situation changed under Reagan, and from 1981 to 1984 there was no such possibility.
Whereas Congress had changed Section 502B from 1974 to 1978 to make it more binding and more explicit, it was unable through the legislative process to compel the president to follow the letter (Carter) or even the spirit (Reagan) of this law. Some members were uninterested in the issue, some were sympathetic to the president's arguments, some did not want the responsibility of substituting congressional for execu7
tive judgment about the necessity of security assistance. Congress was prepared to disallow what the executive branch wanted in the security field only with regard to a small number of Latin countries, and it did so not by passing a joint resolution under Section 502B but by passing country-specific legislation. Even though Section 502B had been amended and strengthened in 1978, by 1984 it seemed that its direct impact would be nil.
The Harkin amendment, or Section 116 of the Foreign Assistance Act of 1961, as amended, prohibited economic assistance to "the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights unless such assistance will directly benefit the needy people in such country" (see Appendix B). This ban was extended to the Food for Peace Program and to U.S. insurance for American investors abroad. Congress gave itself the authority by joint resolution to override an executive decision on these matters.
Section 116, signed into law in 1974, was not given much attention during the Kissinger years. The Carter administration altered this state of affairs. The so-called Christopher Committee, named after Deputy Secretary of State Warren Christopher, moved actively to coordinate assistance policy. Human rights was one of the factors in the decision to provide economic aid. Section 116 was thus brought to bear on American foreign policy, and the Carter administration occasionally reduced some aid levels because of violations of internationally recog-
58 / Human Rights and U.S. Foreign Policy
posedly independent organization tied closely to the Department of State, tried to honor the wording of Section 116 concerning "needy people. If it is correct that most AID programs are for "needy people" or meeting basic human needs (BHN), some AID activity is directed, nevertheless, to promoting national economic growth in a more general sense. During the Carter administration, AID, in consultation with the Department of State, altered some of this activity to conform with the intent of Section 116. That is, some AID programs were directed away from a handful of regimes because of their poor human rights records and because the assistance did not meet basic human needs or benefit the most needy in that country (Guinea, Haiti, Indonesia, Liberia, Somalia, and Zaire). Furthermore, AID required six countries to sign special agreements permitting extraordinary U.S. supervision of Public Law 480 food distribution because of human rights problems (Bangladesh, Indonesia, Liberia, Mozambique, Pakistan, and Somalia).
The Reagan administration altered State Department policy regarding Section 116 but not so much AID policy. It was clear from the public and private record that the administration was as reluctant to manipulate economic as security assistance in the name of human rights. Assistant Secretary Abrams said in 1983, "We are reluctant to use economic aid as a tool for our [human rights] policy."' The Christopher Committee was effectively disbanded despite a congressional resolution urging its continuance. A lower-ranking coordinating committee met periodically.: Occasional memoranda circulated on the subject of human rights and economic aid, but the entire subject was downgraded. The Bureau of Human Rights, like the rest of Reagan's Department of State, did not want to restrict economic aid for human rights reasons. The administration was prepared to restrict aid to some leftist regimes (Nicaragua, for example, which had its aid terminated the day after Reagan took office). Sometimes human rights were cited as the reason for such restrictions, sometimes strategic concerns.
The Agency for International Development,, for its part, continued to alter some of its programs to deny general development aid to certain gross violators." The short list in this regard varied, but during the Reagan administration a working group made up of AID, the Bureau of Human Rights, and the regional bureau involved restricted eco-
The Fate of General Hu 'man Rights Legislation / 59
man needs programs, the programs and countries so affected were few. AID continued to alter Public Law 480 programs to meet the requirements of Section 116. Halfway through the first Reagan administration, AID testified that Food for Peace programs had to meet special supervisory requirements in Guinea, Haiti, Liberia, Pakistan, Somalia, and Zaire.
Some members of Congress focused, by holding hearings, on one Reagan action related to Section 116. In 1983, while civil unrest born of government. repression raged in Chile, the administration signed an agreement with the Pinochet regime permitting future insurance for American investors under the Overseas Private Investment Corporation (OPIC). The administration did not at this time certify progress on human rights as required by other congressional legislation, but it moved ahead with the OPIC general agreement anyway. Several representatives challenged the propriety of this action. Administration spokespersons argued that the signed agreement did not violate Section 116 because no specific OPIC contracts had been signed. Concerned members argued. that the general agreement was the wrong signal to send to Chile, given its continuing violations of human rights." As of late 1987, no specific OPIC contracts had been concluded with Pinochet's Chile.
Another part of Section 116 was implemented by AID during the Reagan administration. Congress, not the president, initiated the idea of a positive use of economic aid linked to human rights. In 1981 Congress wrote into law Section 116(e), which provided $1.5 million for the promotion of civil and political rights in developing countries, provided that the money was not used to influence any election. In 1984 it increased that sum to just over $3 million. AID willingly implemented this small program, approving a variety of projects such as providing human rights materials to libraries, helping to train monitors for elections, and helping to pay the costs of human rights seminars for lawyers. Some AID officials noted privately the difficu Ity of finding projects that could be executed safely in developing countries where working for civil and political rights could appear subversive to the ruling authorities."
Despite the fact that the so-called Harkin amendment was passed in binding form as early as 1974 and was a symbol of congressional asser-
60 / Human Rights and U.S. Foreign Policy
subject. If a president refused to implement the law, Congress as a whole barely reacted. No attempt was made to pass a concurrent resolution overriding an executive decision under Section 116. The dollar amounts involved were small, and economic aid could be continued to a gross violator anyway provided it went for basic human needs. Some liberal members watched closely such aid programs to right-wing regimes in Latin America. Hearings might relate to Section 116, but any resulting action by Congress was usually country-specific.
A study in 1985 concluded that spending for both security and economic assistance during the Carter and Reagan years was largely maintained at consistent levels and not adjusted significantly for human rights or other reasons."
-In the International Financial Institutions Act of 1977, Congress instructed the executive branch via Section 701 to use its "voice and vote" in international financial institutions (IFIs) '(.to channel assistance toward countries other than those whose governments engage in a consistent pattern of gross violations of internationally recognized human rights unless such assistance is directed specifically to programs which serve the basic human needs of the citizens of such country" (see Appendix Q. This language was always controversial; proposed first in 1976 and again in 1977, it was opposed by the president as an unwiserestriction on executive authority and a politicization of the multilateral banks. After 1980, the language became the focal point for a lengthy debate between the Reagan administration and its critics concerning human rights.
The forum for much of this debate was the Subcommittee. on International Development Institutions and Finance of the House Committee on Banking, Finance and Urban Affairs. It became the place for general debate on the human rights policy of the Reagan administration for several reasons. The language of the International Financial Institutions Act was similar to other human rights legislation, containing the phrase "consistent pattern of gross violations of internationally recognized human rights." More important, there were personnel reasons fueling the debate. On the Subcommittee on International Devel-
The Fate of General Human Rights Legislation 61
powers, and critical of Reagan policy: The chair was Jerry Patterson (D., California); the ranking Republican was Jim Leach (Iowa). They were more informed, active, and critical from 1981 to 1984 than others who might have used their positions to stimulate human rights debate or legislation.
The chairmanship of the Human Rights and International Organizations Subcommittee of the House Foreign Affairs Committee had been given to a moderate Democrat, Gus Yatron (Pennsylvania), when Don Bonker, the former activist chair, changed subcommittees. Representative Yatron, of Greek origin, could be counted upon to interest himself vigorously at least in human rights in Turkey." Under his chairmanship, the Human Rights Subcommittee held hearings on a variety of subjects but did not oversee human rights legislation as actively as under his predecessors. But Patterson's subcommittee sometimes grew assertive, holding joint hearings with subcommittees of the Foreign Affairs Committee. On the Senate side there was no focal point for hu-man rights debate. Republicans held the ma ority of seats in 1981-86 and were reluctant, with exceptions, to criticize the policies of a Republican president. There was no human rights subcommittee. Therefore, the House, especially the Subcommittee on International Development Institutions, sought to oversee much general human rights legislation.
The Carter administration, despite having opposed the 1977 International Financial Institutions Act, gave some attention to its provisions on human rights from 1978 to 1980 but certainly did not emphasize this kind of legislation." It did abstain or vote against a number of loan proposals in international financial institutions for human rights reasons, and the list of targeted states included right-wing allies (see table 3. 1) All loans to the states listed in table 3. 1 were eventually approved. It is evident that the United States did not pressure its voting partners to block these loans. Hence the Carter delegation could go on record as voting a concern for human rights without really interfering with international financial institutions' programs. Nevertheless it could at least be said that the Carter administration did not flaunt the International Financial Institutions Act.
The same could not be said for the Reagan administration. In 1981 it began to change U. S. policy in the multilateral banks by voting for loans to right-wing allies while voting against loans to certain left-wing
62 / Human Rights and U.S. Foreign Policy
Table 3. 1. Number of loans per year opposed by United States (Carter administration) on human rights grounds
1977 1978 1979 1980
Argentina 5 6 7 10
Central African Empire I I
Chile 1 3 4
El Salvador I I
Ethiopia 2 1
Guatemala I I
Laos 1 2 3 3
Paraguay 3 4 1
Philippines 1 4 4 3
South Korea 1 6
South Yemen 4 1 2
Uruguay 1 1 6
actions together produced a vigorous response from Patterson's subcommittee and eventually some revision of the 1977 legislation. An extended analysis of these events illustrates the substance of the debate and some of the inherent weaknesses of Congress.
It is useful at the outset of this analysis to have a clear picture of the changes made by the Reagan administration in U.S. voting in the multilateral banks. The Carter record has been given. The record of the first
Reagan administration is summarized in table 3.2. It is clear that the Kirkpatrick thesis on dictatorships and double standards progressively became U.S. policy in international financial institutions. Violations of human rights by anticommunist authoritarian states were overlooked (Section 701 of the International Financial Institutions Act notwithstanding), and human rights violations by communist or Soviet-aligned countries were emphasized. The Department of the Treasury had never liked the intrusion of human rights into banking matters, and Reagan's Department of State was willing to use the leverage of human rights only against leftists.
The Fate of General Human Rights Legislation 63
Table 3.2. Number of loans per year opposed by United States (first Reagan
administration) on human rights grounds
1981 1982 1983 1984
Angola 4 1
Benin 1 2
Laos I I
South Yemen 1 4 1
pressed some reservation about having to change the policy by countryspecific legislation. Despite being an activist member Chairman Patterson said, "I would not want to legislate country by country. I would prefer to leave that determination up to the President and to the administration. 2' But as the policy and hearings continued, it became clear that the Reagan administration was not going to implement Section 701. One spokesperson said candidly for that administration in 1981:
Mr. Bosworth: I would only add that I think that it would be unfortunate if there were a straight-line identification drawn between reports of torture and the U.S. votes and the MDB s [multi.lateral development banks] on loans, because in the human rights reports for 1980, if one reads -those carefully, one will find that torture occurred in some 15 to 20 countries in Latin America, and in many more countries around the world. Now, this administration continue's to oppose torture as a fundamental issue of human rights. But that does not mean that in each of those countries we consider that we should reflect that concern in our
voting, in our pattern of voting on their loans in MDB's.'
Even though there was a consistent pattern of torture, the administration was thus not going to let that fact influence its vote in the multi-
64 / Human Rights and U.S. Foreign Policy
gued tactically that any alleged improvement in the human rights situation negated the existence of a consistent pattern of gross violations of human rights. Those arguments provoked Chairman Patterson to say in 1981:
A key issue here is what constitutes a consistent pattern of gross violations. Another key issue is whether the administration can use apparent improvements as a justification for changing policy,
even though admitted violations continue to occur. .
Frankly, I have some difficulty with this argument. I doubt that
it really meets the test of the law. I also have some problem with the view that one of these countries can hold 850 people in prolonged detention without trial, and the State Department can say there is no consistent pattern of violations because' the number of such detainees has declined in recent years. I have some difficulty in addition, comprehending the legal basis of the argument that evidence of torture and other gross violations need not affect U.S.
votes in the multilateral banks if somebody downtown decides this might not be the most effective procedure for handling the
As time passed, administration spokespersons repeated their arguments. In 1983 a representative from the Department of the Treasury, which actually instructs U.S. delegations to international financial institutions, said: "We are told [by the State Department] to use the vote to express certain human rights views. In general,- however, we. think that is a bad idea because if. we do it, there is no reason to think that everybody else won't do it. Then these institutions will fall apart. iq 26 Another said, "We have tried in this administration to delink, if you will, our vote in these institutions from the various sorts of political considerations [such as human rights] that we are talking about here today. 21 Of course, the administration was willing to "politicize" the banks by voting against loans to leftist regimes. One, could assume from other statements that this was because a communist regime by definition constituted a consistent pattern of gross violation of internationally recognized human rights. But U. S. votes against loans to nations likes Angola, Laos, and South Yemen could have been born of
The Fate of General Human Rights Legislation 65
In 1983, a joint hearing was held before Patterson's subcommittee and the Subcommittee on Africa of the House Committee on Foreign Affairs. The chair of the latter subcommittee was Representative HowW Wolpe (D., Michigan). The following exchange occurred with Assistant Secretary Abrams:
Chairman Wolpe: Let me ask you this. Do you believe that Angola is, in the language of the statute [Section 701] ... a gross
violator of human rights?
Mr. Abrams: I have never formed an opinion about that.
Chairman Wolpe: More importantly, nor has your own Human
Mr. Abrams:* We don't actually form opinions about that question because it is not a useful way to spend our time."
In such unguarded moments, Reagan officials admitted that they ignored not only Section 701 but also other legislative acts requiring a judgment about a consistent pattern of gross violations of internationally recognized human rights. In more guarded moments, these officials argued that improvements interrupted a consistent pattern of violations. This argument prompted Congressman Leach on more than one occasion to remark that one could still have a consistent pattern of gross violations even if there were some improvements: "It is as if one were to argue in the days of Nazi Germany that the closing of Dachau and Auschwitz, while leaving Buchenwald open, would represent sufficient 'improvement' to warrant a legal determination that a 'consistent pattern' of gross violations no longer existed." "
Patterson, Wolpe, Leach, and other members stressed the logic and legislative history of the law; they were joined by various human rights groups that testified in opposition to administration policy. Section 701 (and other acts) required certain "determinations" based on certain facts. In 1983 they persuaded Congress to drop the word "consistent" from the International Financial Institutions Act. The intention was to signal the administration to stop using the "improvement doctrine" to justify continued assistance, especially in international financial institutions, to those right-wing governments with a pattern of gross violations of human rights. As Chairman Patterson said in testimony, "The
66 Human Rights and U.S. Foreign Policy
gressional intents and helps clear up ambiguities which have dogged efforts to encourage even-handed enforcement of Section 701."'0 But the administration maintained its double standard of supporting loans to right-wing regimes while voting against loans to leftists. One might force an administration to change its tactical arguments, but one could not, by legislation, force an administration to alter a deeply held view of the world.
Toward the end of the first Reagan administration there appeared some confusion in U.S. policy in international financial institutions, at least with regard to Chile. In 1984 and 1985, in a context of considerable public debate, the administration first voted for a loan to Chile in the Inter-American Development Bank despite a clear pattern of violation of fundamental human rights by the Pinochet dictatorship. Later, the administration threatened to vote against aloan, with a spokesperson explaining that the denial would be based on human rights arguments. Shortly thereafter, the administration indicated further support for the Pinochet regime in several ways, thus calling into question the reason for the threatened vote. Policy seemed confused, although one could not discount an effort, which might have been reversed by others in Washington, by the Bureau of Human Rights to stress human rights violations."
Critics of the administration were in a weak bargaining position regarding Section 701. They could try to shut off funding to international financial institutions, but this move would hurt the oppressed perhaps as much as their oppressors. Most of the critics were liberals who supported multilateral development banks as a good way to help developing countries. They did not want -to cripple the banks or hurt the lesser developed countries by denying funds because of Reagan's human rights policies. Hence the critics could exercise only limited leverage, as they admitted publicly" and as Reagan officials perceived all along."
The critics could also seek country-specific legislation. But some members thought that this kind of legislation usurped executive authority. And it was an awkward process: a legislative ban would have to be repealed if the situation changed, or renewed each year if it did not. Thus, the administration could stand firm in its fundamental policies.
The best that critics could do was delay what the administration wanted. At one point, Patterson's subcommittee mounted considerable
The Fate of General Human Rights Legislation 67
the notion that this was a basic human needs loan and thus permissible even though Guatemala's human rights record was atrocious. The loan was stalled for a time but eventually approved with an affirmative U.S. vote in the World Bank."
To summarize the actions surrounding Section 701 of the International Financial Institutions Act, one can say that the Carter and Reagan administrations, especially their Departments of the Treasury, disliked the provisions on human rights. The Carter team did not interfere with loans, but it did not flagrantly violate the law; it used its vote in international financial institutions to signal concern about the human rights situation in a balanced list of countries. The Reagan team basically ignored the law except when it used human rights as a weapon against a leftist regime.
At times, high-ranking officials were candid about their violation of the law. Secretary Abrams said in 1983, "1 think 701 does not call for a decision pattern. It calls for us to try to decide among the various means of influencing human rights conditions ift a variety of countries. We have to choose when and where to use tools, including these votes. 1131 While Section 701 called explicitly for the executive branch to channel multilateral assistance away from regimes with a consistent pattern of gross violations of internationally recognized human rights, Abrams was saying they would do so against leftists but not against rightists. Other tactical arguments were used in support of this fundamental view.
Congress, led by a House subcommittee on banking that vigorously challenged the president, tinkered with the wording of the law but was unwilling to shut off funds to international financial institutions because of Reagan's double standard regarding human rights.
Indeed, Section 701 met the same fate as that of 502B and 116. While all of this general legislation mildly influenced the Carter administration, which was predisposed anyway to do something about human rights, it failed to sway the Reagan administration. The main problem was that -any general legislation could be avoided by the executive branch with specious arguments. This point was emphasized in testimony by Michael H. Posner of the Lawyers Committee for International Human Rights: "As a general rule I am concerned that the general human rights provisions, sections 502B and 116 of the For-
68 Human Rights and U.S. Foreign Policy
limited to broad concluding comments as to what constitutes a consistent pattern. One person's consistent pattern is, to another, an occasional violation.") 36
There being no precise method for making such determinations, the executive branch could stand firm in its policies. As one Carter official from the Bureau of Human Rights remarked in private, only halfjestingly, "We used the straight face test. If you could go up on the Hill and testify and keep a straight face while making your arguments, you could probably get away with it. If your argument was so silly you couldn't keep a straight face, your policy was in trouble., "' 37
The situation regarding 502B., 116, and 701 was summed up by Aryeh Neier, Americas Watch, in testimony in 1983: "It seems sort of foolish to have to say 'and we meant it' with respect to various legislation. Even so, there may have to be legislation -that says 'and we meant it.' That. is, if the administration seems to flout guidelines in the law as to U.S. programs, then the Congress simply has to have outright prohibitions and not merely discretionary determinations by the administration. "' 38
After World War II, the United States adopted a Cold War approach to refugee policy. Persons fleeing communist countries were viewed as refugees and welcomed to the United States. Those fleeing noncommunist repression met great difficulty in achieving legal admission. This distinction was codified in U.S. law. Growing congressional attention to this state of affairs pushed the Carter administration into an overhaul of refugee policy. 3' The result was the Refugee Act of 1980 a complicated statute that sought to bring balance and fairness to refugee policy but produced, instead, heightened controversy and a still unbalanced policy.
This act employed the United Nations' definition of a refugee, "one who is outside his native or habitual country and is unwilling or unable to return because of a well-founded fear of persecution."' This was a legally proper definition, faithfully reflecting the 1967 Protocol on Refugees to which the United States was a party. But it also meant that many persons would seek admission to the United States. The 1980
0 .2 Is A V In r% .12
The Fate of General Human Rights Legislation 69
If persons claiming to be refugees under the United Nations' definition were first relocated in a foreign country-say, Guatemalans in Mexico, Ethiopians in the Sudan, or Vietnamese in Malaysia-the United States accepted the label of legal refugee affixed by the host country or the Office of the United Nations High Commissioner for Refugees. Such a label did not obligate the United States to accept a refugee, since it still had discretionary authority to accept or reject such persons as it wished. The 1980 statute allocated a minimum of 50,000 entry permits for such persons, and it allowed the president, in consultation with Congress, to adjust the figure upward and to allocate entrants among various regions or countries. U.S. law also specified which of these refugees were to be given preferential entry into the United States.
If persons claiming to be refugees were found in the United States as the country of first recourse, the United States initially withheld the label of refugee. Such persons had to establish refugee status, then request political asylum. The resulting elaborate process, established by the 1980 legislation, set no numerical floors or ceilings, leaving the numbers and aspects of asylum policy to executive determination. But if the executive branch found the person to be unable or unwilling to return because of a well-founded fear of persecution, the United States was obligated under international law not to send the person back to the situation of persecution.
Shortly after the adoption of the 1980 Refugee Act, the Mariel boatlift from Cuba and rising numbers of Haitian migrants led Congress to be dissatisfied with what it had just legislated." Some members worried about the increased numbers of Latins reaching the United States. Others, like those in the Black Caucus, protested that Haitians were discriminated against while Cubans received favorable treatment. The Carter administration defended itself with claims that resurfaced in the next administration: that Haitians were largely seeking economic improvement; that each had to demonstrate personal persecution by the Duvalier regime; that State Department studies showed no pattern of persecution of those who were returned to Haiti. Hence, in the Carter administration there -was already a clear tendency to welcome Cubans fleeing communism but to exclude Haitians leaving a noncommunist country. Crosscutting pressures were already forming in Congress.
70 / Human Rights and U.S. Foreign Policy
wanted fewer restrictions on Haitians. Still others wanted to know who was going to help the states pay the bills for potential refugee assistance and relocation.
The Reagan administration thus inherited a sizable problem concerning refu ee policy. A difficult situation worsened with increasing applications for admission to the United States from persons fleeing martial law in Poland in 1982 and turmoil in the Horn of Africa during the early 1980s. For refugees identified in foreign host countries and "processed" by the Office of the United Nations High Commissioner for Refugees, the administration proposed progressively lower numbers for entry into the United States. Inheriting an entry figure of 217,000, the Reagan administration was proposing by 1985 that the United States accept 70,000-just 20,000 more than the minimum figure set by the 1980 act. Moreover, the administration modeled its policy firmly on Cold War tradition. For these foreign-based refugees, it allotted 50,000 spaces to Southeast Asia, where most refugees fled communist governments in Vietnam and Cambodia, and 9,000 spaces to Eastern Europe. By contrast, only 3,000 were set aside for all of
Latin America, where emigrants left mostly right-wing regimes. In fact, administration officials testified to Congress that despite the law requiring individual determination of persecution, groups fleeing places like Vietnam were presumed to be refugees while those fleeing Haiti were presumed not to be."
As for persons claiming refugee status and then asylum in the United States, the Reagan administration denied as many claims as possible. In this regard it continued the policy of the Carter administration (notwithstanding Carter's rhetoric in favor of human rights). Also, the Congressional Select Commission on Immigration and Refugee Policy recommended a "cautious" approach to the number of refugees allowed into the United States.' There was concern that the number of persons asking for refugee status and asylum was simply too large. There were political" complications as well. Since Haitians, Salvadorans, and Guatemalans fled governments supported- sometimes strongly-by the United States, it was obviously embarrassing to admit officially that such regimes persecuted their citizens. Some observers in the United States thought that granting political asylum to such emigrants would alter U.S. domestic politics, perhaps leading to large numbers
The Fate of General Human Rights Legislation 71
Therefore, the Reagan administration-through the Immigration and Naturalization Service, as advised by the Department of Statedenied almost all claims to political asylum by persons from Central America and the Caribbean. Spokespersons said that such claimants were mostly "economic migrants" seeking better jobs. In effect, the policy demanded that claimants not only show a general denial of human rights in places like Haiti but prove that they had been personally targeted by the regime for persecution.
The administration took two more steps to deter immigrants from south of the border. First, it sought to make life in the United States pending a determination of their status as unpleasant as possible. Immigrants were no longer paroled into society but were detained, sometimes in unpleasant conditions. New detention facilities were constructed, and the one in Louisiana was located far from urban centers-and from legal counsel, who might assist the immigrants in defending their rights.
Second, the Reagan administration instituted the policy of interdicting Haitians in particular before they could reach U. S. jurisdiction. The U.S. Coast Guard, with the permission of the Haitian government and with an official of that government on board, turned back Haitians before they could reach U.S. waters, thus preventing them from making effective claims to refugee status in U. S. courts. The administration argued that an official from the Immigration and Naturalization Service on board was capable of making a sound determination at the time of interdiction. These and other policies were obviously intended to keep the number of successful claimants to an absolute minimum.
In moving to reduce the number of refugees and asylum seekers entering the United States, the Reagan administration acted in conformity with the views of important members of Congress. In July 1981, Senator Alan K. Simpson (R., Wyoming), chair of the Senate Subcommittee on Immigration and Refugees and one who emerged as a key figure in debates on immigration and refugee policy, showed Congress's inclination for greater restrictions when he told Reagan officials:
Let me say very clearly that I have a strong belief that the primary obligation of government is to promote the national interest; that being the long-term well-being of the majority of its
72 Human Rights and U.S. Foreign Policy
interests, including the maintenance of freedom, the protection of our citizens from violence and fear, and a responsive and stable political system. And even more basically, I think the national interest includes the preservation of the public cultural qualities and
national institutions that make these specific benefits possible.
If legal immigration is continued at a high level and if we do
not stop illegal immigration, we'll find that a substantial portion of the influx of new human beings into our land are not able to
assimilate into our society and accept our public culture. .
For today, the vast and growing world population means that
we live in a world of limits, and traizically that may come to mean
limits to compassion.
I have referred to that potential unwillingness to respond to
others as "compassion fatigue," and the signs -1 think are all
around us that this is already happening."
Nevertheless, persistent criticisms arose that Haitians and others fleeing noncommunist situations were not being treated according to the intent of Congress when it passed the Refugee Act of 1980. Rep. Ramano Mazzoli (D., Kentucky), chair of the House Subcommittee on Immigration and another key player in refugee debates, complained to Reagan officials: "Sometimes it is the governments we are for versus the governments that we are against which seems to determine the [refugee] policy. If we are against a kind of government, then their people, their rejectees, are refugees. Those governments that we are supporting or are for, their rejectees, their flotsam and jetsam, become just another one of the problems of society." 46
Members of Congress attributed this double standard in U.S. refugee policy to the Department of State, which was accused of playing political games" with refugee determination. In speaking to a representative of the Department of Justice, Congressman Mazzoli urged greater effort in bureaucratic battles: "'Let me encourage you. to remember that the Department of Justice is, I believe, a co-equal department of Government, along with the State Department. I do not think they acted in a co-equal way in the spring [of 1981]. 1 think they got overwhelmed, run over, and stomped on by the State Department. I do not think they should have. I think that ought to be part of your feel.. A-7
The Fate of General Human Rights Legislation / 73
James N. Purcell of the Department's Bureau of Refugee Programs, for example: "If by unequal distribution [of refugees from second countries] that means we have fewer Africans or ones from the Western Hemisphere or the Near East than Indochinese, I think that is a matter of national interest. While I think we have a uniform system, the application of that system has to vary by region depending on the politics and the requirements He also testified candidly that even when those fleeing Indochinese countries cited economic motivations, the Department of State still treated them as victims of political persecution. He argued that their economic deprivation was a matter of class and, hence, political and that they would be persecuted if sent back."
Even after a U.S. court had found systematic persecution by Haitian officials against those returned by the United States, State Department officials-presumably with straight faces-testified to Congress that Haitians were economic emigrants who faced no problems upon return."
Thus, while the dominant mood favored lower numbers of entrants of all categories, there was unease over St ate Department policies reflecting Cold War biases in U.S. refugee policy that obviously continued beyond the 1980 Refugee Act. But other concerns cut across this unease. Members of Congress from Florida and sometimes those from elsewhere wanted to maintain restrictions on Haitians even if it reflected a bias, and many members were concerned about the costs of incarceration and assimilation. These ideas undercut concerns about balance and fairness because implementation of a really balanced policy would lead to more Haitian and Salvadoran immigration. The only way out of this dilemma-to deny entry to greater numbers of persons fleeing communism in Europe, Asia, and Africa (Ethiopia)-seemed equally unappealing
Given congressional moods and divisions, several private groups turned to the courts rather than to Congress for alterations in the executive branch's interpretation of the 1980 Refugee Act. Especially on the subject of refugee status for those from Latin America and the Caribbean, the private groups could intervene at several points in the long process of determination. Decisions by the Immigration and Naturalization Service could be reviewed by an immigration judge, then by a Board of Immigration Appeals, then by U.S. District Courts
74 / Human Rights and U.S. Foreign Policy
Haitians or Salvadorans to concentrate their efforts further on the judicial process."
In sum, Congress was aware of the need for revisions in immigration and refugee policy, but it could not agree on precisely what should be done. Election year politics exacerbated the difficulties. The SimpsonMazzoli bill, which simplified the handling of asylum claims by, among other things, reducing the State Department's role, failed to pass in the election year of 1984.52 But court cases and continued activity by private groups plus the level of awareness of the general problem ensured that further efforts would be made to refine U.S. refugee policy. In the meantime, the Reagan administration continued its policies of lowering the number of immigrants and giving preference to refugees from communism. A new immigration bill finally passed both houses in 1986 and took legal effect in 1987, but refugee law remained unchanged.
The Jackson-Vanik amendment, named after Senators Henry Jackson (D., Washington) and Charles Vanik (D., Ohio), or Section 402(a)(b) of the 1974 Trade Act, prohibits the granting of most-favored-nation status in trade, as well as U.S. credits, to countries with nonmarket economies that restrict unreasonably the right of emigration for their citizens. The president has the authority to waive these restrictions for twelve months if such a waiver would promote the objectives of the act. Congress can disapprove of such a waiver by a simple resolution in either chamber. Neither the 1974 act nor its legislative history clearly defines unreasonable restriction, and the letter of the statute only pertains to emigration. This is the so-called human right of last resortthe right to -leave a situation of abuse or persecution.
Congress, mostly with the Soviet Union in mind, approved linking human rights questions to trade with communist countries.. Since 1974, however, the Jackson-Vanik amendment apparently has exerted little 'impact on Soviet emigration policies. In 1973 emigration from the USSR was about 34,000 persons. Immediately after passage of the 1974 Trade Act, the Soviet Union repudiated the Jackson-Vanik amendment; it withdrew its request for most-favored-nation status and re-
The Fate of General Human Rights Legislation I 75
ment's status,, Soviet emigration rose to about 50,00O."~ Despite a temporarily negative effect on emigration from the USSR, the JacksonVanik provision did not impede levels of emigration over time. Whether the Soviets allowed emigration to increase because of hopes of influencing American opinion on other issues, such as the ratification of the SALT 11 treaty, is a matter of conjecture. During the Reagan administrations, Soviet emigration declined slightly, and there was constant harassment of persons applying to emigrate."4 The USSR did not renew its request for most-favored-nation status.
Three communist countries achieved most-favored-nation status by the mid-1980s. Romania was so named by the Ford administration, and the Carter administration issued subsequent waivers. The Carter administration added Hungary and the People's Republic of China to the list of nonmarket economies with reasonable emigration procedures. Waivers for all three countries were renewed initially by the Reagan administration. Congress, which reviewed the status of the JacksonVanik amendment annually, concurred in all these actions.55
After considerable debate over the wisdom of the Jackson-Vanik amendment in 1973-74, there arose a consensus in support of the amendment both in principle and in applying it to particular countries. Certain countries such as the USSR, East Germany, Czechoslovakia, and Bulgaria clearly restricted the right of emigration in a fundamental way, and there was no question but that they fell under the restrictions of Section 402. Other countries, such as Hungary and China (after U.S. normalization of relations in 1979), clearly permitted emigration as a general rule and were thus clearly entitled to most-favored-nation status.
During the Reagan administrations, however, controversy over Romania resurfaced. Emigration policies in that country had never been so clear-cut as in Hungary. Yet as of mid-1982, three administrations of two political parties had judged that Romania had made enough progress in allowing reasonable emigration so that a waiver was in order. Congress had agreed.56 In the summer of 1982, two conservative senators, Jesse Helms (R., North Carolina) and Steven Symms (R., Idaho), introduced a resolution that would have blocked most-favored-nation status for Romania. A variety of people testified against the resolution, including Senator Jackson himself, spokesmen for Jewish and Chris-
76 / Human Rights and U.S. Foreign Policy
emigration had jumped significantly after Jackson-Vanik: from 4,469 in 1.973, to 12,633 in 1978, to 16,893 in 1980, and to 19,000 in 1984. Many problems remained, but because such a clear pattern permitting more emigration had emerged, because Romania had maintained a foreign policy independent of the Soviet Union on a number of issues, and because trade with Romania had increased, giving a number of American businesses a stake in a renewed waiver, the Helms-Symms proposal at first got nowhere.
Shortly after the Reagan waiver of 1982 took effect, the Romanian government imposed, along with other financial obligations, a socalled education tax on those wishing to emigrate. This action led to considerable concern at both ends of Pennsylvania Avenue, especially since executive and congressional officials had been in touch with Bucharest and had been led to believe that remaining problems concerning emigration would be attended to. In March 1983 the president, in the context of congressional criticism of Romania's action, indicated that most-favored-nation status would be denied when the current waiver expired in June of that year. 17 The Romanian government then revised its emigration policies, including the elimination of the education tax, which was to have been paid in hard currency an extra difficulty for Romanians for whom the possession of foreign currency is illegal. Congressional officials traveled to Romania and informed authorities that the president's denial of the waiver would be sustained by Congress .18 The Romanian government then again revised its emigration policies.
While the Jackson-Vanik amendment had thus done little for emigration from some communist countries, it had been important in dealing with Romania. There was general agreement in Washington on its use. Congress played an active role both in monitoring executive interpretations and in discussing matters with foreign governments. A few members of Congress and some ethnic groups had especially wanted to punish Romania for its communist policies apart from emigration. Some felt that there remained too many unreasonable restrictions on emigration procedures. But these views failed to command much support through 1986. (In mid- 1987, however, both houses voted to suspend Romania's most-favored-nation status, despite generally unchanged emigration policies. Members of Congress were seeking to punish Ro-
The Fate of General Human Rights Legislation 77
ington: human rights legislation supported by both parties and both branches that at least on some occasions could be seen as helpful in promoting certain human rights. But when applied to Romania, Jackson-Vanik had become controversial by 1987. Congress finally accepted the view that most-favored-nation status should be governed by more than the right to emigration.
Brief mention can be made of the rapid rise, limited use, and rapid decline of the idea that the U.S. Export-Import Bank should be a weapon in the fight to promote human rights in U.S. foreign policy. It has been noted that Congress authorized the president to deny ExportImport Bank credits to human rights violators where the U.S. national interest would be so advanced. In such cases, foreign parties could not obtain an Export-Import Bank loan to purchase goods or services from American companies.
The early form of this authorization was supported in principle by the Carter administration, but that administration never viewed economic sanctions as a major weapon in the struggle to protect human rights abroad,'9 with the major exception of its support for U.N. economic sanctions on Rhodesia. It had to be forced by Congress into a coffee embargo on Uganda.' The Carter administration denied or delayed Export-Import Bank credits to only four countries: Argentina, Chile, South Africa, and Uruguay." Even this limited use of the bank for human rights purposes proved highly unpopular with the American business community and its champions in Congress. Some also saw an unacceptable double standard used by the Carter administration when Argentina and Uruguay were denied Export-Import Bank credits at the same time that most-favored-nation statu'in trade relations was given to Hungary and the People's Republic of China despite their obvious violations of civil and political rights."
Given this reluctance in both branches to use the Export-Import Bank extensively in the human rights cause, it is not surprising that, during the Reagan administration, the bank ceased to be even a limited instrument for protecting human rights. In an era of U.S. trade imbalances and growing concern about the American ability to compete
78 / Human Rights and U.S. Foreign Policy
gressional hearings on the Export-Import Bank during the first Reagan administration, the subject of human rights had no consequence whatsoever." Needless to say, the administration did not act under the authorization granted to it to link the bank with human rights.
Only on the subject of South Africa was there a continuing desire in the Congress to prevent Export-Import Bank credits in the name of human rights. In 1978, at perhaps the apogee of congressional activism on human rights, Congress adopted the Evans amendment, named after Thomas Evans (R., Delaware), binding the Sullivan principles to Export-Import Bank loans in South-Africa.' In general, the principles constituted a voluntary code for U.S. firms doing business in South Africa, and over 175 firms signed on. Their performance was then monitored by the Arthur D. Little Company of Cambridge, Massachusetts, which made an annual report to Reverend Sullivan. Congress made the principles mandatory for any South African agency and any American firm in that country that sought credits from the ExportImport Bank. No bank loan could'go forward until the executive branch certified that progress was being made in the implementation of the principles.
The Carter administration implemented this law, a posture consistent with not only its verbal attacks on South African apartheid but also its 1977 vote in the U.N. Security Council in favor of a mandatory arms embargo on the Republic of South Africa. That administration, however, did not favor a general economic embargo on the Republic-or economic sanctions. on Uganda in response to human rights violations there.
The Reagan administration also followed the Evans amendment, despite its shift to the policy toward South Africa of "constructive engagement," which emphasized positive rather than negative approaches to ending apartheid. No certification was made that would have allowed Export-Import Bank loans to. governmental agencies or American firms, although the Reagan administration did change executive.export regulations to allow more sales to the South African government, including its military and police. Because such executive actions called into question the administration's commitment to ending apartheid (Ambassador Kirkpatrick met with high-ranking South African military officials in a departure from U.S. practice), parts of Congress kept
The Fate of General Human Rights Legislation 79
the Evans amendment." There was some discussion of making the Sullivan principles legally binding for all American firms in South Africa, not just any who might seek Export-Import Bank credits.
It is not known exactly why the Reagan administration did not certify progress on human rights or try to repeal the Evans amendment. That administration "massaged" the facts to certify progress on human rights in El Salvador and Haiti (as will be seen), and it sought the repeal -of the ban on U.S. aid for foreign policy training (a partially successful effort, covered in chapter 5). Perhaps the issue was too minor. Members of Congress, while refusing to extend the mandatory nature of the Sullivan principles, did progressively move toward support for general economic sanctions against South Africa. Quite possibly, therefore, the Reagan administration decided to implement the Evans amendment in order not to antagonize Congress, even though the amendment was inconsistent with its stated "constructive" approach to South Africa. In 1987, Reverend Sullivan called for abandoning his principles; in his view they had not had the desired effect so he came to favor general economic sanctions, including a withdrawal of foreign investment.66
Country,--Specific Legislation: .Central America
[I]n your [State Department's] human rights report you document
some progress on human right s in El Salvador. In 1981, although not clearly pointed out in your report, there were something like 10,000 to 12,000 noncombatant deaths; in 1982, maybe 6,000 to 8,000 noncombatant deaths. That is good progress, but it is like closing Buchenwald and
keeping Auschwitz open. .
My question to you is, under section 502B do you feel the U.S. Government ... can continue military assistance to the Government of El
-Representative Jim Leach (R., Iowa) Human Rights in El Salvador, House Committee on Foreign Affairs, 198395
Congress enacted not only general but also specific legislation on human rights. After the Chilean coup of 1973, for example, it passed a number of measures on Chile, some of them specifically predating much of the general legislation. Country-specific legislation on human rights came to prominence in congressional deliberations relating to Central America during the period of this study.
When it wished, Congress could influence foreign policy through specific legislation, as events pertaining to El Salvador, Guatemala, and Nicaragua bear out. At the same time, Congress could ignore some specific legislation once it was passed. One act might require a presidential certification of progress on human rights matters in El Salvador and another in Haiti, but there was a world of difference in how Con-
Country-Specific Legislation: Central America 81
During the period under study, El Salvador presented one of the most salient foreign policy problems before Congress. Indeed, Lebanon and Poland, Nicaragua and South Africa, arms control and immigration all claimed substantial attention. But El Salvador consumed much congressional time especially during the first Reagan administration, and the human rights question was the center of the debate.
In El Salvador, the Carter administration inherited a situation common to much of Central and South America. For years, a small aristocracy had allied with senior military officials to rule the country for their benefit, in the process denying basic human rights to the overwhelming majority of the population. In 1979 junior army officers, perhaps trying to avoid the fate of their brother officers in neighboring Nicaragua, deposed the Romero government, established a civilian junta, and tried to reform the country. But a rebellion already under way (which included Marxists) merged with a rightist backlash against the attempted reforms. The rebels committed mayhem in the name of the left; the ultrarightists-undeniably including the important political figure Roberto d'Aubuisson-threatened coups against the civilian junta, attacked the U.S. embassy, and killed supporters and beneficiaries of the reforms.'
The Carter administration supported the 1979 coup and tried to build up the political center while opposing the extremes on both sides. For most of its tenure the administration opposed military aid to the Salvadoran military, believing the rebels relatively weak and the military a distinct threat to the political and economic reforms presumably needed to undercut the rebels' appeal. Uncertain of the military's commitment to reform, the administration withheld military assistance to gain leverage for Salvadoran human rights and other reforms.'
Toward the end of the Carter administration, however, several events altered U.S. policy and increased congressional concern. On December 4, 1980, four American churchwomen were raped and murdered in El Salvador. Since they had been helping the poor, they were viewed as "political activists" by a number of people, including the future U.S. representative to the United Nations Jeane Kirkpatrick and Secretary of State Alexander Haig. It is highly probable they were
82 / Human Rights and U.S. Foreign Policy
Carter administration suspended economic assistance to El Salvador. The following January, two American labor advisers assisting in the land reform policies of the junta were also killed, again presumably by rightists. For many Americans, including many members of Congress, these murders spotlighted human rights abuses in El Salvador.
In that same winter of 1980-81, two other events pushed the Carter administration in new directions and attracted the attention of Congress. First the rebels proclaimed their "final offensive." It fizzled, but it raised the question of whether the rebels could win militarily. When their international supporters, including Communist Vietnam and Ethiopia, sent them more aid, using Cuba and Nicaragua for transshipment,' the Carter administration resumed economic aid shortly after suspending it and, for the first- time, sent small amounts of military aid-$10 million, half of it in lethal equipment. The lethal aid was provided one day after the U.S. ambassador in San Salvador, Robert E. White, said that no progress was being made by Salvadoran authorities in the investigation of the murder of the American churchwomen.
At this point the Reagan administration entered office, and some of its early actions caused both houses of Congress to take a greater interest in El Salvador, joining a debate that was to last, off and on, for at least four years. If events during the winter of 1980-81 had not stimulated Congress to monitor U.S. policies in El Salvador, the new Reagan administration took several steps that guaranteed congressional activism. First, the administration abruptly removed Ambassador White from San Salvador and effectively forced him into retirement. This action assured him a hearing in Congress, an opportunity that he used fully to express his views. Second, the administration broke with Carter policies and lobbied for a $20-million military assistance program accompanied by more American advisors on the ground. This step was pursued even though some evidence showed that Napoleon Duarte, and other civilian members of the junta really were opposed to it, notwithstanding their formal request for military aid.' Both the House and Senate held extensive hearings on El Salvador as early as March 1981. Democrats in the House were especially well positioned to raise questions about Salvadoran policy. The House Inter-American Subcommittee of the Foreign Affairs Committee was chaired by Michael Barnes (D., Maryland), a critic of emerging Re-
Country-Specific Legislation: Central America / 83
Dante Fascell (D., Florida), turned out- to be overwhelmingly critical. When the 1981 foreign aid bill and subsequent continuing resolutions on funding went to the House Appropriations Committee, they had to pass through the Subcommittee on Foreign Operations, chaired until 1985 by Clarence Long (D., Maryland), a crusty critic of Reagan's policies on El Salvador.
Each of these bodies had conservative members who welcomed the administration's attacks on communism and its support for military assistance in El Salvador. Charles Wilson (D., Texas), Henry Hyde (R., Illinois), Jack Kemp (R., New York), and others contested the majority Democratic view, but it became clear that many in the House had reservations about the course of U.S. policy.
That these same reservations should be voiced with some effectiveness in the Senate as well indicatesthat they were not generated solely by Democratic party loyalty. After the Republicans took control of the Senate in January 1981, Charles Percy (R., Illinois), new chair of the Foreign Relations Committee, professed support for the administration's foreign policy, but he broke with the administration on the nomination of Ernest Lefever to be assistant secretary of state for human rights. Percy was at the center of those opposing Lefever's view that U.S. human rights policy should be consolidated into an anticommunist policy.' The Republican majority in committee did -not save Lefever from a 13-4 negative vote, and the administration withdrew his nomination.
The Foreign Relations Committee's Subcommittee on Western Hemisphere Affairs was chaired by Jesse Helms (R., North Carolina), one of the most conservative senators and one who had supportive ties to d'Aubuisson. Helms, like d'Aubuisson, opposed the junta's nationalizations and land reform, and he regarded Christian Democrat Duarte as too far to the left. Yet Helms was far to the right of his own subcommittee, which was made up of critics Ed Zorinski (D., Nebraska), Paul Tsongas (D., Massachusetts), and Christopher Dodd (D., Connecticut) as well as moderates Richard Lugar (R., Indiana) and Nancy Kassebaum (R., Kansas) and conservative S. 1. Hayakawa (R., California). On the larger Foreign Relations Committee there were many liberals or moderates, including Democrats Claiborne Pell (Rhode Island), Joseph Biden (Delaware), John Glenn (Ohio), Paul Sarbanes
84 Human Rights and U.S. Foreign Policy
nesota) and Larry Pressler (South Dakota) were independent moderates. Given this committee makeup and lingering fears of another Vietnam, it was. not surprising that the administration's policy on El Salvador encountered greater scrutiny in the Senate as well as in the House. Senate Republicans voted repeatedly against the administration on El Salvador.
In the debate between the Reagan administration and its congressional critics, the lessons of Munich and of Vietnam were argued. The main point, in Secretary of State Alexander Haig's words, was that El Salvador represented a "textbook case" of communist aggression. 7 State Department spokesmen followed this line, alluding to appeasement at Munich in 1938 and subsequent totalitarian aggression:
If there was some reason to think that, if they [the Communists] succeeded with this in El Salvador, their appetite would be satisfied, would be sated, and they would never do it again, perhaps that would be one situation. But we know they don't see things that way. They concentrate their efforts where there is an area of weakness and they will, at least on all precedents, continue to do that. We have to keep thisperspective of El Salvador as part of a much bigger issue, an issue which goes to the basis of what we stand for in this country, and we cannot lose sight of the fact that it was the Communists who first engaged in a massive military
intervention in El Salvador by supplying weapons.8
Secretary Haig wanted to go to "the source" and use military force against Cuba, advice rejected by President Reagan.' While the ad ministration refused to go to the source,, it nevertheless continued to see the primary issue in El Salvador as a communist threat to U.S. security. It professed interest in curtailing human rights violations by ultraconservatives, but it stated publicly that it would do whatever was necessary to defeat the communist insurgency. Logically, this position could encourage ultraconservatives to continue their violence, since they knew that the Reagan administration would make specific human rights secondary to anticommunist action. The Department of State spoke out against a rightist coup and distanced itself from d'Aubuisson, and the administration argued that movement toward democratic Is .0 Is If .. 0 0 It% -2 .. It% -2 -2 -1