secure the contribution of commodities to
development in this hemisphere.

First, I propose that we establish a regional consultative mechanism on commodities. This mechanism could well be under the aegis of the OAS. It should bring together experts with operational responsibilities and experience. The inter-American commodities mechanism could precede, or at least supplement, those established with a global mandate, where we are prepared to exchange views regularly and in depth on the state of commodities markets of most interest to us—including coffee, grains, meat, and the minerals produced in this hemisphere. Our objective will be to concert our information on production and demand in order to make the best possible use of our investment resources. These consultations will provide us with an early-warning system to identify problems in advance and enable us to take appropriate corrective action nationally, regionally, or through worldwide organizations.

Second, I propose we give particular attention to global solutions for commodities important to one or more countries of the hemisphere. The United States has signed the Coffee and Tin Agreements; it is crucial to the coffee- and tin-producing countries of this hemisphere that those agreements be implemented in a fashion that will most appropriately contribute to their development.

In Nairobi and at other forums the United
States proposed that we examine on a global
basis other commodities of particular impor-
tance to Latin America—bauxite, iron ore,
and copper. I suggest that we in the hemi-
sphere have a special role to play in consider-
ing how these steps might be taken and in
identifying other high-priority subjects for
global commodity discussions.

Third, I propose that the consultative
group take a new look at the problem of in-
suring adequate investment in commodities
in this hemisphere under circumstances that
respect the sovereignty of producers and
provide incentive for investment. We should
examine all reasonable proposals, especially
those which would help to assure effective

resource-development financing. If global
solutions are not possible, we are willing to
consider regional mechanisms.

Trade

Trade has been an engine of growth for all countries; and for many developing countries—above all, those in Latin America—it is an essential vehicle of development. Recognizing the importance of trade to sustained growth, the United States has taken, within our global trade policy, a number of initiatives of particular significance to Latin America. We have reduced trade barriers, especially those affecting processed goods; provided preferential access to our market for many exports of developing countries; worked in the multilateral trade negotiations in Geneva for reduction of barriers, giving priority to tropical products; and recognized in our general trade policy the special needs of developing countries.

Today, at this Assembly, we can begin to
consider ways in which our commitment to
trade cooperation can contribute to economic
progress in our hemisphere. The United
States sees three key areas which this or-
ganization could usefully address:

- The need to provide opportunities for developing countries to expand and diversify exports of manufactured and semiprocessed goods;

- The need to promote the hemisphere's trade position through the multilateral trade negotiations at Geneva; and

- The need for effective regional and subregional economic integration.

Let me turn to each of these three points.

No single element is more important to
Latin America's trade opportunities than the
health of the U.S. economy. I can confirm to
you today that our economy is in full re-
covery, with prospects brighter than they
have been for years.

The preferences system contained in the
U.S. Trade Act has been in effect since Jan-
uary. It gives Latin American countries
duty-free entry on more than 1 billion dollars'

July 5, 1976

7

worth of their exports to the United States. Even more important, it provides vast opportunities for Latin America to diversify into new product areas in its exports to the United States.

In addition to the effort we will undertake to end the exclusion of Ecuador and Venezuela from the benefits of the U.S. Trade Act, President Ford has asked me to state today that:

- He will make every effort to add to the preferences system products that are of direct interest to Latin America.

- The executive branch will bend every effort to accommodate the export interests of Latin America in all matters in which we have statutory discretion. President Ford's recent choice of adjustment assistance rather than import restrictions in response to the petition of the U.S. footwear industry clearly demonstrates the commitment of the U.S. Government to a liberal trade policy and the use of the Trade Act to expand trade in the hemisphere.

- The President will direct the U.S. Department of Commerce to respond positively to requests from your governments for assistance in the development of export promotion programs. The Department of Commerce will make available technical advice on promotion techniques and personnel training to help develop new markets for Latin American exports worldwide.

The United States believes that the multilateral trade negotiations in Geneva warrant the special attention of Latin America. Our view is that the international codes on subsidies and countervailing duties and on safeguards actions now being negotiated should recognize the special conditions facing developing countries. To this end:

- The United States will seek agreement at Geneva that the code on countervailing duties and subsidies now being negotiated should contain special rules to permit developing countries to assist their exports under agreed criteria for an appropriate

time linked to specific development objectives.

- The United States next month will propose that the safeguards code under negotiation in Geneva grant special treatment to developing countries that are minor suppliers or new entrants in a developed-country market during the period that safeguards are in effect.

- The United States will send a trade policy team to Latin America shortly to identify ways to promote increased hemisphere trade through the Geneva negotiations; we are prepared to intensify consultations in Geneva and Washington with Latin American delegations to explore both general issues and positions for specific meetings.

Finally, the United States supports the concept and practice of regional and subregional economic integration as a means of magnifying the positive impact of trade on development. Expanded trade, based on the development of industries that will be able to compete successfully within and outside the integration area, will strengthen the growth process of participating countries. We seek means to support the far-reaching integration plans that have been drawn up in the hemisphere—for the Andean Group, the Caribbean Community, the Central American Common Market, and the Latin American Free Trade Area.

We are ready to support responsible efforts to further integration. The administration of U.S. trade laws and the improvement of our preferences system on matters such as rules of origin are two possible incentives to greater Latin American integration. We welcome your views as to a further U.S. role toward enhancing the momentum of economic integration in Latin America.

We are not persuaded, however, that we have fully exploited all the possibilities of how best to provide expanded trade opportunities to Latin America. We know that the issue is complex and that it involves not only expanded access to the markets of the United States but also measures to enhance

8

Department of State Bulletin

opportunities for Latin American products in Europe and Japan and throughout Latin America itself.

Some permanent expert forum is necessary. We therefore propose that within the OAS there be established a special inter-American commission for trade cooperation. If the suggestion for a Special Assembly on cooperation for development prospers, we think that Assembly should set guidelines for the functioning of the commission. We see the commission as an opportunity, in major part through the multilateral trade negotiations in Geneva, to bring together those policy-level officials most familiar with the actual trade problems and opportunities for trade creation under a firm mandate to seek innovative means of cooperating to expand exports—expanding, in short, on a regular and long-term basis the catalogue of trade-expansion proposals I have elaborated above.

## Technology

Technology is basic to economic development. It is technology that enables us to master the raw gifts of nature and transform them into the products needed for the well-being of our peoples.

But technology is not evenly distributed. There are impediments to its development, to its transfer, and most importantly, to its effective utilization. The United States believes that technology should become a prime subject of hemispheric cooperation. The countries in this region have reached stages of development that enable them to adapt and create modern technologies. Our potential thus matches the urgency of practical needs.

At this point, what are the new directions we should take together? We have three proposals. The United States believes we in the hemisphere should:

- Take immediate advantage of promising global initiatives. To seek maximum benefit from the U.N. Conference on Science and

Development set for 1979, we propose that the nations here today undertake preparatory consultations on that subject in the Economic Commission for Latin America, whose meeting has been prescribed as a regional forum within the conference program. We will enlist the experience and resources of leading U.S. technology institutions in this hemispheric preparatory effort.

- Increase public and private contacts on research, development, and the application of technology. To this end, the United States will:

  - Open a technology exchange service for Latin America to provide information on U.S. laws and regulations relating to technology flows and to sources of public and private technology;

  - Explore cooperative ventures in which small and medium-sized U.S. firms would provide practical technologies to individual Latin American firms, along with the management expertise needed to select, adapt, and exploit those technologies; and

  - Expand and strengthen Latin America's access to the National Technical Information Service and other facilities of the technology information network of the U.S. Government, which covers 90 percent of the technical information that flows from the $20 billion worth of research that the U.S. Government sponsors annually.

- Develop new regional and subregional structures of consultation and cooperation on problems of technology. To this end, the United States proposes:

  - First, that we establish a consultative group under the OAS to address and provide recommendations on information problems that Latin America faces in acquiring technology.

  - Second, that the OAS, in line with the UNCTAD IV consensus, establish a regional center on technology. The center would facilitate cooperative research and development activities, drawing on both public

July 5, 1976

9

and private sources. It could stimulate ex-
changes of qualified technical personnel.
And it could begin to attack the problem of
incentives to the thousands of technologi-
cally trained Latin Americans now living
abroad to return to and serve with their
own countries. In the view of the United
States, such a center should be a coopera-
tive enterprise requiring commitment and
contributions in funds, technological re-
sources, and personnel from all of the
countries that take part. To get us under-
way, I propose that we convene a group of
experts to examine the need, feasibility,
characteristics, and role of an inter-Amer-
ican technology center and report to us
before the next OAS General Assembly.

The Importance of Cooperative Development

Economic development is a central con-
cern of all nations today. The community of
nations has become, irrevocably, a single
global economy. We know that peace and
progress will rest fundamentally on our
ability to forge patterns of economic coopera-
tion that are fair, productive, and open to
all.

We in this hemisphere have a special op-
portunity and responsibility to advance the
recent favorable mood and the practical
achievements in cooperation between the de-
veloped and developing nations. We start
from a firmer foundation today; our pros-
pects for working together are brighter than
ever before—more so in this hemisphere
than in any other region of the world. We
should have reason for confidence in our
ability to advance our own people’s well-
being, while simultaneously contributing to
a more prosperous world. It is in this sense
that I have sought today to advance our
practical progress in important areas.

The United States stands ready to give its
sister republics in the hemisphere special at-
tention in the great task of cooperation for
development. We shall make a major effort
to prepare for the Special Assembly on de-

velopment. We shall listen to your proposals,
work with you in a serious and cooperative
spirit of friendship, and commit ourselves
to carry on the great heritage of the Amer-
icas as we go forward together.

SECRETARY KISSINGER'S STATEMENT
ON REFORM OF THE OAS ¹

The Organization of American States is
the cornerstone of the inter-American sys-
tem, the oldest institution of regional co-
operation in the world. Its member states
have exceptional ties of respect and a com-
mon heritage, and a considerable stake in
maintaining those ties for the future.

The inter-American system pioneered the
principles of nonintervention and collective
security among cooperating sovereign states.
Because the Americas also have enormous
vitality and achievement, we have a major
opportunity and obligation to continue to
provide an example and impetus to the global
search for better ways to mediate the com-
mon destiny of mankind.

Many ask, why think of OAS reform?
Why, some wonder, does our Secretary Gen-
eral refer to an "identity crisis" in his latest
annual report?

The answer lies in the fact that the pace
and complexity of the international and do-
mestic changes of the recent past have made
the organization as it is presently constituted
less effective as an instrument of our respec-
tive foreign policies and less significant to
the real issues of the new inter-American
agenda than our minimum efforts deserve.

This hemisphere is unique; there is no
other grouping like it in the world. We have
indeed a special relationship. The funda-
mental purpose of the OAS must be to con-
tinue to nurture and strengthen our funda-
mental, shared values. We must have an
organization that reflects our permanent and

¹ Circulated by the U.S. delegation and released on
June 11 (text from press release 302).

10

Department of State Bulletin

irrevocable engagement to work together and maintain our continent as a hemisphere of peace, cooperation, and development.

The United States is committed to the OAS. We have pledged to make it a continually more effective instrument for action in pursuit of the common goals of prosperity and human dignity.

It was to that end that the member states agreed three years ago to an effort to reform, restructure, and modernize the OAS. The results of that effort are disappointing. A proposed new draft of the Charter of the OAS has emerged from the Permanent Council. I regret to say that it is one that our government could neither sign nor recommend that our Senate ratify. It includes prescriptive and hortatory statements of general principle which are as poorly defined as they are ominous. No effort is made in the new charter draft to come to grips with the need to modernize or improve the structure of the organization. We believe the real shortcomings of the OAS have yet to be adequately addressed.

We propose a new effort to reform, modernize, and restructure the organization. We think that effort should concentrate not on words, but on three major substantive issues: structure, membership, and finance.

### A. As to structure,

The United States would like to advance four points as possible guidelines for the future effort, in the interest of modernization of the organization.

1. The purposes of the organization should be stated simply and clearly in the new charter.

Those purposes should be:

- The promotion of cooperation for development;

- The maintenance of the peace and security of our region; and

- The preservation of our common tradition of respect for human dignity and the rights of the individual.

2. The structure of the organization serving these goals should be flexible.

We should write a constitutive document for the organization which will serve us well into the future. That an organization finds it necessary to rewrite its charter every 5 to 10 years does not speak well for that organization's sense of its role or function. We are now in an age of great change. Our efforts in the coming years to achieve the three basic goals of the organization will take place under rapidly changing circumstances. Thus, flexibility and adaptability must be the key considerations guiding the reform effort. We should not hamstring ourselves with a charter brimfull of the details of the day, with procedural minutiae, or with regulatory prescriptions hindering our ability to meet contingencies.

3. The governance of the organization should be in the hands of the Ministers.

Over the years, the proliferation of functions assigned haphazardly to the OAS has produced an overelaborated organization that is ponderous and unresponsive. Instead of closer and more frequent contact between Foreign Ministers in ways that truly reflect our foreign policies as we are attempting to manage them from our respective capitals, we find ourselves insulated from each other by a plethora of councils and committees with conflicting mandates and a cumbersome permanent bureaucracy.

To strengthen communication, we must cut through the existing organizational underbrush and replace it with a structure capable of responding to the authentic foreign policies of our governments as expressed directly by Foreign Ministers and of relating concretely to our institutions and the needs of our peoples. Particularly, the three-council system has not fulfilled the hopes which led to its adoption in 1967.

The General Assembly, as the central pillar of the inter-American system, might well be convened more frequently, perhaps twice a year, with special additional sessions to consider our common concerns, particularly

July 5, 1976

11

the great challenges of cooperation for de-
velopment. As contacts at the ministerial
level intensify, the need for an elaborate
structure of councils will disappear. Our
encounters at the General Assembly will
offer sufficient opportunities to set organiza-
tional policy.

This is all of the organizational super-
structure we really need. A leaner, more re-
sponsive organization would be serviced by
a smaller expert Secretariat responsive to
the guidelines established by the General
Assembly and the functional committees the
General Assembly may create.

4. We should improve the OAS mecha-
nisms for promoting respect for human
rights in the Americas.

B. As to membership,

To insure that the OAS represents all of
the peoples of our region, we should open
up the organization to the newly independent
states and those which may become inde-
pendent, both on the continent and in the
Caribbean. Although these questions of
membership require further study, we be-
lieve article 8 of the present charter, which
automatically excludes certain states, is an
anachronism and should be removed.

C. As to financing,

A serious effort to reform the Organiza-
tion of American States should include a re-
view of present provisions for its financing.

You are all aware of the critical attention
the Congress of the United States has
focused on the proportion of the organiza-
tion's cost the United States is now bearing.
Obviously, this has been a factor in recent
U.S. budget cuts affecting the OAS. We do
not claim that the United States is paying
too much or more than its fair share of the
cost in terms of our relative ability to pay.
It is only that it is wrong and damaging for
an organization of two dozen—soon to be
25—sovereign states, whose purpose is to
advance the interests of each, to be so
heavily dependent on the contributions of a

single member. It places the organization in
a vulnerable position and projects a false
image of the OAS.

It is important to find some basis for OAS
financing that will, over time, reduce the
U.S. share of the assessed costs while insur-
ing that the activities of the OAS in the vital
development assistance field are not
weakened.

The United States is committed to the
Organization of American States. We know
that it provides an institutional base which
will continue to be vital to our common prog-
ress. In these years of great change, the
nations of the world have seen fresh proof of
an old truth—that the most durable and
responsive institutions are those which bear
a lighter burden of bureaucratic machinery
and whose procedures permit the flexibility
required for swift and imaginative action.

We believe our proposals can help bring
the drawn-out reform debate to a successful
conclusion over the course of the next year.
And we believe this is the kind of organiza-
tion we can and must have if we in the
Americas are to fulfill our promise and our
responsibility to advance international co-
operation in an era of interdependence.

JOINT U.S.-PANAMA REPORT 2

For the past twelve years, with the support of the
OAS, Panama and the United States have maintained
an active negotiating process with respect to the
new regime for the Panama Canal. By virtue of the
Joint Declaration of April 3, 1964,³ both countries-
pledged their word to work out a new treaty—a
treaty new not only in its date of entry into force,
but also in the mentality which it will reflect; that
is, it will be in accord with the evolution experienced
by the international community.

We are negotiating because both countries feel the
need to build a new relationship which gives full
regard to the aspirations of the Panamanian people,

³ Presented to the General Assembly on June 9 by the Governments of the Republic of Panama and the United States (text from press release 295).

For text, see BULLETIN of Apr. 27, 1964, p. 656.

12

Department of State Bulletin

the interests of both nations and the principles and objectives of the Charter of the UN. And we are negotiating in deference to the unanimous views of our sister republics in the Western Hemisphere.

We are working on the basis that every negotiation concerning an old problem is a transaction towards new formulas of justice; and that progress can only be achieved when a spirit of compromise between the parties exists as a result of their understanding of new realities and, above all, when they seek a balancing of interests within a reasonable period of time.

The negotiating process has confirmed the dedication of both parties to the eight principles agreed on by their authorized representatives on February 7, 1974. The two countries reported to this Assembly last year that significant progress had been made in this process of balancing the interests of both parties in accordance with the eight principles. We are pleased to report that during the past year the parties have made further significant progress on the highly complex issues before them.

Differences remain between the two parties on important issues—the period of duration of the new treaty and arrangements in the land and water areas comprising the Panama Canal Zone.

The Republic of Panama and the United States are anxious to complete these negotiations as soon as possible and recognize that the other nations represented in this Assembly share that desire. But we have recognized that the complexity of the issues remaining before us requires the most careful and painstaking negotiating efforts if we are to achieve a treaty which is truly just and equitable—a treaty which will balance the respective interests of both countries and those of the other nations of the Hemisphere and the world in such a way as to definitely eliminate the potential for causes of conflict in the future. It is in this sense that both Governments are in agreement with the concept expressed by General Torrijos [Brig. Gen. Omar Torrijos, Head of Government of Panama] that we are not simply seeking any new treaty—we are seeking a treaty that will fully meet our common goals in the future and be seen by our sister republics as reflecting a new era of cooperation in the Americas. The United States and the Republic of Panama re-

iterate their commitment to continue their most serious efforts to achieve such a treaty as promptly as possible.

The negotiation offers both peoples a peaceful alternative for the solution of a prolonged disagreement between them, and both Governments are convinced that it is their responsibility to explore to the utmost this path which offers such real possibilities for a satisfactory agreement which will cement on solid foundations the friendship and cooperation between our two countries.

If we continue the serious work presently being carried out and if we maintain the reciprocal good will of both missions towards reaching a solution to the pending problems, we cherish the hope that soon we will be able to advise you that a treaty has been agreed upon, a treaty which not only all America, but the entire world, awaits as an effective contribution to consolidate peace and friendship amongst all peoples.

## Letters of Credence

### Bolivia

The newly appointed Ambassador of the Republic of Bolivia, Alberto Crespo Gutierrez, presented his credentials to President Ford on May 21.¹

### Czechoslovakia

The newly appointed Ambassador of the Czechoslovak Socialist Republic, Jaromir Johannes, presented his credentials to President Ford on May 21.¹

### Yemen Arab Republic

The newly appointed Ambassador of the Yemen Arab Republic, Yahya M. al-Muta-wakkil, presented his credentials to President Ford on May 21.¹

⁴ For text of a joint statement initialed at Panama on Feb. 7, 1974, by Secretary Kissinger and Panamanian Foreign Minister Juan Antonio Tack, see BULLETIN of Feb. 25, 1974, p. 184.

¹ For texts of the Ambassador's remarks and the President's reply, see Department of State press release dated May 21.

July 5, 1976

13

Secretary Kissinger Visits Four Latin American Countries

Secretary Kissinger visited the Dominican Republic June 6; Bolivia June 7; Chile June 7-9, where he headed the U.S. delegation to the sixth regular OAS General Assembly at Santiago; and Mexico June 10-13. Following are remarks and news conferences by Secretary Kissinger, together with the texts of joint communiques issued in Bolivia and Mexico.¹

ARRIVAL STATEMENT, SANTO DOMINGO, DOMINICAN REPUBLIC, JUNE 6

Press release 285 dated June 6

Mr. Foreign Minister: It is a great honor for me to begin my second trip within this hemisphere within four months with our friends in the Dominican Republic.

President Ford has sent me on this journey to underline the special ties which the United States feels with its sister republics in the Western Hemisphere, the importance we attach to the dialogue that is growing up between us, and our conviction that if we here in the Western Hemisphere cannot solve the problems between developed and developing nations, it is very difficult to solve them in the world at large.

We are tied together by a similar history, by a long tradition of cooperation, and by the conviction that in this hemisphere, above all others, human dignity and human rights must always be respected.

All these subjects will be discussed at the forthcoming session of the General Assembly, which my colleague your Foreign Minis-

ter and I are planning to attend. But I am here to say also that in a world in which nonalignment is respected and in which we are prepared to cooperate with nonaligned nations, we nevertheless greatly value and appreciate those nations that have always been our friends.

We were greatly impressed and moved by the remarks of your distinguished President on February 27 in his Independence Day message when he said:

> In an era in which a certain strident nationalism and certain pseudo anti-imperialist poses are fashionable, we are not ashamed of our friendship with the United States. We have identified with the destiny of that great nation.

We reciprocate this feeling, and it is to strengthen that friendship between our two peoples and to deepen our relationship that I have come here. I look forward to my talks with your leaders, and I thank you for the very gracious reception that Mrs. Kissinger and I have received.

TOAST BY SECRETARY KISSINGER, SANTO DOMINGO, JUNE 6²

I appreciate very much the warm welcome you have given me. I am pleased to have this opportunity to visit the Dominican Republic. This beautiful island holds a special meaning for all the peoples of the Americas. For here culminated the most momentous voyage of discovery in all human history, and here began the modern history of our hemisphere.

A great chronicler of Columbus' voyages, the late Samuel Eliot Morison, pointed out that the most remarkable aspect of Colum-

¹ Other press releases relating to Secretary Kissinger's trip are 286 of June 6, 290 and 292 of June 7, 297 of June 11, 298 of June 10, and 304 of June 12.

² Given at a luncheon hosted by President Joaquin Balaguer on June 6 (text from press release 287).

14

Department of State Bulletin

bus' enterprise was its incredible faith in its ultimate success. The journey that ended on your shores was, above all, the product of spiritual courage, of a daring to search for an objective whose very existence could only be proven through faith. Belief in the future is the very symbol and meaning of the Americas—the bold readiness to encounter the future and the confident faith that human exertion, when directed by principle and liberty, guarantees progress. With all our differences, ours has always been the hemisphere in which a frontier has always been a challenge and not a limit, where man came to find dignity and human fulfillment.

It was in a spirit of commitment to our unique hemispheric bond, with a readiness for shared endeavor and faith in the success of our common future, that I visited Latin America four months ago. And it is in this spirit that I begin my second trip to Latin America this year here in the Dominican Republic—to continue the work we began in February, to strengthen by consultations and concrete proposals the impetus of improving relations between the United States and the nations of Latin America, and to help make our hemisphere a model of what interdependent nations can achieve by cooperative effort. To reach that lofty objective, we will need faith, and if I may put it in terms which will be familiar to you, we will also need hope and, occasionally, a good bit of charity toward each other.

The United States has always regarded its relationship with Latin America as a central element in its national life—not solely as a matter of foreign policy—for too much of our history derives from Spanish-speaking settlers and too many of our citizens are of Latin origin for such a relationship to be characterized as “foreign.”

The sources of our special bond are manifold: The epic of discovery and settlement, our peoples' struggles for national independence, our common interest in shielding our countries from external intrusion, our work together to build international structures for cooperation and economic progress, our com-

mitment to human dignity, and above all, our deep cultural and personal ties.

The depth of these bonds goes beyond institutions; they penetrate the soul. The United States has always felt with Latin America a special intimacy and close friendship. Today, when our countries are deeply involved in world affairs, even when our perceptions and interests are not always identical we continue to draw upon a particular warmth in our personal relationships and an exceptional respect and regard for each other's views and concerns.

The partnership in our hemisphere—shaped by history, tradition, and common interest—was formalized, by and large, in a series of treaties, and impelled by organizational machinery, dedicated to peace and security. This shared commitment, given form in the Organization of American States, is still indispensable to our partnership.

Today, the evolution of the hemisphere and the world impels us to expand the range of our concerns beyond the traditional agenda of security and peace. It is fortunate that our relationship is so deep that it can comfortably accommodate the broad range of human preoccupations.

We have come to understand that while we must remain strong in our dedication to the peace and security of this hemisphere, we are at the same time challenged by a new agenda of development issues. The growing role of the nations of this hemisphere in the global economy and in world forums dealing with development issues and their unique position as the most developed of the developing nations provide an unprecedented opportunity to shape the problems of interdependence.

To reflect these new perceptions, I pledged last February that the United States would:

—Take special cognizance of the distinctive requirements of the more industrialized economies of Latin America and of the region as a whole, in the context of our efforts to help shape a more equitable international order;

—Assist directly the neediest nations in

July 5, 1976

[LC]

15

the hemisphere afflicted by poverty and
natural disaster;

—Support Latin American regional and
subregional efforts to organize for coopera-
tion and integration;

—Negotiate on the basis of parity and
dignity our specific differences with each and
every state, to solve problems before they
become conflicts;

—Enforce our commitment to collective
security and to maintain regional integrity
against attempts to undermine solidarity,
threaten independence, or export violence;
and

—Work to modernize the inter-American
system to respond to the needs of our times
and give direction to our common action.

Since February the United States has
worked hard to make progress in each of
these areas. We have introduced trade, in-
vestment, and technology proposals of
special relevance to the countries of this
hemisphere at global forums in Paris and
Nairobi. We have responded to the coura-
geous efforts of the Guatemalan people to re-
cover from the earthquake that devastated
their land. We have provided fresh support
to subregional cooperation in Central Amer-
ica and are exploring ways of relating more
effectively to the Andean Pact. And we have
not only intensified bilateral efforts with
several countries but have made a special
effort to prepare for the current meeting of
the OAS General Assembly, which provides
a unique opportunity to review our progress
together and give it common direction.

I look forward to discussing these and
other recent global and regional events with
my colleagues at the General Assembly, and
I shall be putting forward additional pro-
posals on a number of key issues to further
our efforts on a multilateral regional basis
as well.

A major element in this second trip is
that it builds naturally on the first; in Feb-
ruary I was not only able to state our aims
but to listen to and gain some understanding
of your concerns—concerns over trade, the
transfer of technology, and regional coopera-

tion. The proposals we plan to present at
Santiago reflect that understanding and re-
spond to those concerns and thus represent
concrete steps in our longstanding partner-
ship.

Two subjects that are high on the inter-
national agenda are especially relevant:
trade and technology.

Trade

The United States is fully aware that trade is the indispensable engine of growth for the nations of the hemisphere and that the United States and the other developed countries are the most significant trading partners of the region. Trade is the source of most of Latin America's foreign exchange and so is essential if Latin America is to acquire the imported capital goods which are vital to future industrialization. But trade is at the same time the most serious point of national vulnerability to external circumstance. Cycles of boom-and-bust, fueled by abrupt fluctuations in the prices of commodities like sugar and coffee, tin and copper, have plagued the development struggle in the Americas for decades.

We are dedicated to the search for effec-
tive solutions to the problems of interna-
tional commodity marketing, as I made clear
in my statement to the UNCTAD IV [fourth
ministerial meeting of the U.N. Conference
on Trade and Development] in Nairobi a few
weeks ago. And we are, as recent decisions
by President Ford under the Trade Act have
shown, equally dedicated to a more liberal
global trading system in which Latin Amer-
ica will have greater opportunity to expand
its earnings from nontraditional manufac-
tured export sales.

In February I pledged that the United
States would support Latin America's drive
for broadened participation in the interna-
tional economy as a means to assure stable
growth. During this visit, at the General
Assembly, I shall:

—Make clear our determination to ad-
minister our Trade Act in ways constantly

Department of State Bulletin

16

more favorable to Latin America's exports;

—Announce our willingness to explore with Latin America ways in which, through our own trade policies, we can offer incentives for more liberal trade and greater integration in Latin America;

—State our willingness next month, at the multilateral trade negotiations in Geneva, to consider special safeguards treatment for certain developing countries and, in other ways, to press the trade interests of Latin America at the Geneva conference;

—Explore several means of expanding Western Hemisphere commodity production and exports; and

—Propose a new inter-American consultative mechanism on trade so that the inter-American system shall enjoy, for the first time, an open, continuing forum for dialogue on this the most significant economic relationship of the nations of this hemisphere.

## Technology

Economic development, in the end, means simply the expansion of output and the improvement in efficiency of the workers, the farms, and the factories of our nations. In today's world, it is impossible to conceive of any long-term growth in a nation which is without modern technology—the capability of exploiting the insights and discoveries of the modern scientific method for the betterment of man's condition. Latin America's development aspirations turn on technology, but as I emphasized during my visit in February, it must be technology compatible with the conditions of Latin America, nurtured by Latin Americans in Latin American institutions, and capable of thrusting the economies of Latin America into the competitive forefront of the world's markets.

At the General Assembly this time, I shall:

—Announce measures to expand Latin America's access to our own National Technical Information Service;

—Detail an increased U.S. assistance program for the coming year for the development of indigenous technology capability within Latin America;

—Announce that we are opening a technology exchange service for Latin America to service requests for information about public and privately owned technology in the United States;

—Indicate that we are prepared to mount a pilot program of practical technology exchanges between private Latin American and U.S. companies; and

—In general, elaborate for Latin America the technology initiatives which I suggested in Nairobi recently and those which were approved in the technology resolution at UNCTAD IV.

These steps, which we are prepared to refine and implement in consultation with the other countries of the hemisphere, will not only increase the prosperity of our individual countries; they will increase their capacity to define and maximize the benefits of international cooperation and progress. Above all, they should strengthen the spirit of cooperation and partnership.

## Human Rights

The origins of our hemispheric traditions, and the values of our civilization tell us, however, that material progress is not sufficient for the human personality. We of the Americas have a special obligation to ourselves and the world to maintain and advance international standards of justice and freedom.

In February I stated our conviction that basic human rights must be preserved, cherished, and defended in this hemisphere—for if they cannot be preserved, cherished, and defended here, where the rights and the promise of the individual have played such a prominent historic role, then they are in jeopardy everywhere.

During this trip I shall stress that the struggle for human dignity is central both to national development and to international cooperation, and I shall propose a strength-

July 5, 1976

in

17

ened role for the Inter-American Human
Rights Commission.

Our Inter-American System

We have many forms of cooperation; our
bilateral and global interactions are increas-
ing constantly. To give them an added re-
gional dimension, no organization is more
important than the Organization of Ameri-
can States.

Last February I pledged that we would
work to modernize the inter-American sys-
tem to respond to the needs of our times and
give direction to our common action. Dur-
ing my current trip I shall urge that we
increase the frequency of our consultations
through the General Assembly and elimi-
nate those other elements of the OAS struc-
ture that have become anachronistic, and I
shall propose that these reforms of the OAS
be considered by a special intergovernmental
working group on the charter.

Over the course of the next year, these
steps should lead to a more flexible and re-
sponsive instrument of cooperation between
the United States and the countries of Latin
America and help bring the drawn-out re-
form debate to a successful conclusion.

These proposals will be offered as sin-
cere, serious attempts to respond to Latin
American suggestions.

History has proven time and again how
difficult it is for those living in an age of
revolutionary change to perceive the forces
taking shape around them, much less exer-
cise influence over their direction and im-
pact. I believe that we here in this hemi-
sphere, because of our partnership of shared
endeavor and straightforward consultation,
are closer than any other group of nations
to understanding the problems we face, more
able to discuss them in the spirit of a long
tradition of cooperation, and more willing to
take the necessary steps to master our com-
mon destiny. With good will and firm com-
mitment, we can make a record of progress
in this hemisphere on the crucial issues of
an interdependent world which will be a
model and an inspiration to nations every-
where.

The peoples of the Americas, who pio-
neered these unexplored continents and built
nations under conditions of great adversity,
know that progress does not come easily.
But we know as well that cooperative and
committed effort and faith in the future are
the surest means to progress.

Mr. President, the year 1976 has a special
meaning for both of us. In the United States,
it is a Bicentennial year of renewed dedica-
tion to our ideals. For you, it is a year of
homage to a great Dominican leader: Juan
Pablo Duarte. Like Jefferson and Bolívar,
Juárez and Lincoln, Duarte has given the
Americas a legacy of love of mankind and
country.

You, Mr. President, a distinguished his-
torian and a scholar of Duarte, have had an
opportunity which was tragically denied to
him. For nearly 10 years, you have been al-
lowed to direct the fortunes of your coun-
try, to lead it away from political and eco-
nomic unrest toward peace, prosperity, and
liberty.

During the first four years of this decade
alone, the people of the Dominican Republic
enjoyed a real annual increase in per capita
income of nearly 8 percent, one of the high-
est rates of progress not just in this hemi-
sphere but the world. This growth has en-
abled you to resist subsequent dislocations
in the global economy and to make great
strides in institutional development and
culture as well.

In less fortunate times, when stability and
confidence were threatened, you addressed a
message to the young people of your coun-
try. You reminded them of the ideals and
aspirations of Duarte and of their obliga-
tions as inheritors of his hope. You said:

... To chaos and to lack of confidence by some
in our own future, we can offer in return political
security in the present and in the future; to ignorant
narrowness, we can offer our abundant confidence,
our faith in progress, our permanent commitment to
national conciliation and concord.

This is also a message to the hemisphere.
It is a message of indomitable faith in the
future worthy of the heritage and the proud
achievement of this hemisphere.

Ladies and gentlemen, I ask you to join

18

Department of State Bulletin

me as I propose a toast on behalf of the
President and people of the United States:
To His Excellency, Dr. Joaquín Balaguer,
President of the Dominican Republic, to the
enduring friendship between our two
countries, to the prosperity and well-being of
the Dominican people, and to the voyage to
the future upon which we in the Americas
have embarked and which will lead us to a
new world of peace, dignity, justice, and
progress for all our peoples.

NEWS CONFERENCE, SANTO DOMINGO, JUNE 6

Press release 288 dated June 6

Q. There is one basic question: What is the
real purpose of your visit to the Dominican
Republic?

Secretary Kissinger: As I indicated at the
airport, this is my second visit to Latin
America in four months, and I am trying to
see as many countries of the Western Hemi-
sphere as I can during this year to create a
basis for a new relationship between the
United States and the countries of the
Western Hemisphere.

I am using the occasion of the General
Assembly in Santiago to stop here to ex-
change views with an old friend of the
United States, a country that plays a cen-
tral role in the Caribbean area and whose
problems are characteristic of many of the
smaller countries of this region. This is the
basic purpose of my visit in Santo Domingo.

The larger purpose is to establish a rela-
tionship between the United States and its
Western Hemisphere neighbors, to contrib-
ute to the dialogue between the developed
and the developing nations, and to help con-
struct in this hemisphere a model of what
the relationship in the world at large can be
over a period of time.

In any case, it is a pleasure for me to
visit a country with which we have no bi-
lateral problems and from which we don't
want anything and also to have the oppor-
tunity to visit a capital which has shown
great friendship.

Q. Mr. Secretary, today you stated that the

matter of human rights is a matter that is
vital for continued cooperation in the region.
Does this mean that the United States will
not provide economic assistance to Chile in
view of the demonstrated and systematic
violations of human rights by the govern-
ment of General Pinochet?

Secretary Kissinger: The United States
has made clear and will make clear again in
Santiago its commitment to human rights,
and it will make some specific proposals on
how to advance them in the Western
Hemisphere. We are not here to discuss
questions related to interruption of eco-
nomic assistance or economic matters.

Q. Mr. Secretary, I wonder whether you
could please explain the new role of the Do-
minican Republic within the context of this
new policy that you have expressed in the
area of the Latin American Continent and,
very specifically, the role of this country in
the Caribbean area. We have heard recently
and there has been some evidence of efforts
or trends to stop the establishment of blocs
of producers of raw materials. On the other
hand, we have heard of the role of an arms
or ammunition factory that is being run by
some Cuban exiles and there are rumors that
the CIA has something to do with it. We
would like to know what the role of this
factory is in the Caribbean and with respect
to Latin America and the area in general.
There has been late news of arms shipments
made to Chile and that this was a sale ef-
fected by the United States through the
Dominican Republic. Could you comment?

Secretary Kissinger: I have never heard
of any arms sales to Chile by way of the
Dominican Republic, and that, in any case,
would be against our laws. So I don't believe
that this is possible. I have also never heard
of an arms factory established by Cuban
exiles, but there are many things under the
sun that I haven't heard of, though it's very
rare for me to admit it.

The role of the Dominican Republic can
be, as it has been traditionally, one of mod-
eration and cooperation. We are not attempt-
ing to stop the formation of producer blocs,

July 5, 1976

19

but the producers cannot complain if the consumers then also create organizations of their own. Our basic theme is not to tell other countries how to organize themselves. Our basic theme is that relations between producers and consumers cannot be settled by confrontation, everybody will suffer, but most of all the poorest countries. And this is why we have made, constantly, proposals to encourage a dialogue and to take into account the concerns of the developing countries and why we believe that in the last 15 months considerable progress in that direction has been made.

We have a long flight ahead of us, so if I could ask for only two more questions.

*Q. What other fundamental or primary benefits are or could be offered to the Government of the Dominican Republic in the social and economic order in connection with your visit, Mr. Secretary?*

*Secretary Kissinger:* I did not come here in order to make a commercial deal with the Dominican Republic. I came here to visit old friends, to discuss the general principles of hemispheric cooperation, and to deal with a few specific problems of direct import to our countries.

I believe that the benefits to the Dominican Republic will develop from the general program of hemispheric cooperation that we are trying to develop and our general readiness to deal with the special concerns of the Dominican Republic with an attitude of friendship. But you should not present this as if I had come here on a sort of commercial mission in which we asked something of the Dominican Republic and then paid a certain amount for it. This is not the sort of visit it was.

*Q. Mr. Secretary, do you feel you're in a position to affirm and state that the United States will not repeat the type of activity that we were subjected to during the 1965 experience—that is to say that no new armed intervention will ever be carried out in our own territory—or do you feel that circumstances could lead to a repetition of such type of activity?*

*Secretary Kissinger:* One of the celebrated candidates in the American political campaign has just announced that he has made a new discovery, which is never to answer a hypothetical question. I have so few opportunities to agree with him that I would like to record my agreement.

But to answer your hypothetical question—we are not looking for opportunities for military intervention. And we are trying to build a relationship of cooperation in this hemisphere.

May I use this occasion to thank the Dominican Government, its President, Foreign Minister, and all the people we have met for the extraordinarily warm reception that we have received here.

## NEWS CONFERENCE, SANTA CRUZ, BOLIVIA, JUNE 7

*Press release 291 dated June 7*

*Q. With whom did you confer last night and today, and what were the subjects?*

*Secretary Kissinger:* Before I answer the question I want to take this opportunity to thank the Bolivian Government on behalf of my colleagues for the reception we have had here. I already had an opportunity to express my views at City Hall. I would like to repeat again how touched we all have been by the very friendly reception we have had here.

In answer to your question, last evening I had a very brief talk with the Foreign Minister. This morning I met for about two hours with the President, the Minister of Foreign Affairs, the Finance Minister, and two others of their associates, and I was accompanied by Under Secretary Maw, Assistant Secretary Rogers, and our Ambassador to Bolivia.

We reviewed the topics that are covered in the communique—that is, the progress of economic development; bilateral issues between the United States and Bolivia; and some substantial discussion on narcotics control, which is a matter of great concern for both our countries. Also, Secretary

20

Department of State Bulletin

Rogers met with the Minister of Finance last night to go into some more details on the economic subjects that were also discussed this morning.

Q. Mr. Secretary of State, two points I would like to ask you about, and they concern —they are matters of special concern to all Latin American countries. The first point refers to the landlocked nature of Bolivia and its desires to gain access to the sea. The second one refers to the matter of Panamanian desires to assert sovereignty over the canal area. I would like to ask you specifically what steps the United States is contemplating to find a solution to these two problems and, additionally, what type of support is the United States intending when you say that the United States does support Bolivia's desires to have access to the sea?

Secretary Kissinger: With respect to the issue of Panama, three American Presidents have been negotiating with Panama in order to see whether it is possible to reconcile the American interests of free and uninterrupted passage through the canal with Panamanian aspirations. We do this not only because of the concerns of the country of Panama but because of our convictions that all of the countries of the Western Hemisphere are watching these negotiations at this time for the new and equal relationship that we are attempting to establish with the countries of the Western Hemisphere.

We are negotiating seriously. So far no conclusions have been reached, but we are proceeding on a serious exploration to see whether the interests of both the United States and Panama and the concerns of all of the countries of the Western Hemisphere can find an expression that strengthens the ties of the Western Hemisphere and assures free access and passage through the canal. As you know, this has been the subject of considerable debate in the United States, but we believe that we are acting in the national interests and in the Western Hemisphere's interests, and we are proceeding with these negotiations.

As for the Bolivian access to the sea, you know better than I that this is a complicated problem involving Chile, Bolivia, and Peru that all three countries have to agree. It is our understanding that some preliminary understandings have been reached between Chile and Bolivia and are now being discussed with Peru.

The United States watches these negotiations with sympathy, and it hopes that a successful conclusion can be achieved, in the belief that this will help the tranquillity and cooperation in the Southern Cone. We will certainly express these views to all interested parties and to all other colleagues in Santiago.

Q. Mr. Secretary, of all of your diplomatic undertakings, which one would you consider the most positive in your pursuit of world peace, and could you tell us what are the most recent steps and most recent efforts undertaken by you in order to seek peace in the world?

Secretary Kissinger: I would not want to make a judgment between the various activities with respect to peace, because if the world is to become more peaceful several things have to be done simultaneously. The relationship between the industrial democracies has to be strengthened. The relationship between the industrialized countries and the developing countries has to grow into one of cooperation so that the world is not forever divided between those who are advanced and those who are struggling for progress. And finally, relations between ideological adversaries—between East and West—have to follow some rules of restraint. If we do not make progress in all of these areas simultaneously, then we have great difficulty speaking of an improvement of world peace.

In addition to the structural problems, there are specific areas such as the Middle East and now Africa, and I believe that it is—that America has an obligation to use its influence and its power to attempt to ease conflicts, to mediate rivalries, and to move these specific issues closer to a peaceful resolution.

July 5, 1976

21

The Times

Q. In Bolivia, Mr. Secretary, tin is a most important basic product, and the high cost of production of this mineral makes it of great significance to our country. Tin, therefore, and the world tin situation are of great significance. The Fifth International Tin Agreement established a voting system that provides a virtual veto right to the United States. Bolivia has announced its intention not to ratify such an agreement because of the manner in which it would affect its interests. This implies the right of the United States to veto the positions of some minor nations. Wouldn't this be, Mr. Secretary, in contradiction to some of the principles that you stated during the course of the Nairobi Conference?

Secretary Kissinger: The issue of commodities is one of the principal problems in the relations between the developed and the developing nations. The United States understands the concern of the producers of primary products and especially of countries that are dependent on—to a large extent—on the single commodities—commodity—to avoid excessive fluctuations in the price, and therefore, frankly, after some internal debate, we have agreed to join a number of commodity agreements. Some have already been concluded, and we have agreed to discuss others. We have signed [inaudible].

We do not consider that our voting percentage in fact constitutes a veto. And in any event, having joined the agreement, it would be our intention to realize its objective, which is to prevent extreme fluctuations of the prices and to enable the producers of the primary commodities to stabilize their income. I frankly am not aware of the fact that Bolivia has indicated that it would not ratify the agreement, and I would regret it if it were true, because one of the principal reasons for our joining the agreement is precisely to help countries like Bolivia. We ourselves are not tin producers.

Q. Mr. Secretary, I have read in a publication of the U.S. Information Service entitled "Latin America in a Changing World" and

have noted that in all of your public statements during the course of your visits to Venezuela, Peru, Bolivia, Colombia, Costa Rica, you have made references to the matter of human rights and to the need for the observation of human rights in order to promote peace and encourage progress among the peoples of the world. How, Mr. Secretary, do you think that the United States can require —demand—of countries that do not respect such human rights, that they do so, as has been on occasion suggested by Democratic Senator Kennedy? And I suggest that this is not on my part an effort to interfere in the internal politics of another country.

Secretary Kissinger: Before I answer the last expression, may I thank everybody for the extreme courtesy with which the interview has been conducted—a method that I am considering introducing in the Department of State—and I hope that the American correspondents here have paid great attention to the politeness with which everything has been conducted here.

Now, to answer your question. I think the problem of human rights is not primarily a question of preserving the peace, because peace can also be preserved in the absence [inaudible]. The problem of human rights arises from the moral positions of the Western Hemisphere, in that all of the founding documents of all of our republics have called attention to the importance of human dignity and personal freedom. This is the hemisphere to which people came to escape oppression elsewhere, and we can only be true to our history and to the human imperatives of our time by implementing the demands for the respect for human dignity. I will make a statement on this subject at the meeting in Santiago, and I will indicate the U.S. position with respect to it and what methods we believe can be used for the time being to advance the cause of human rights in the Western Hemisphere. But I do believe that this hemisphere has a special obligation by virtue of its tradition and by virtue of its basic belief to promote the advancement of human rights.

22

Department of State Bulletin

U.S.-BOLIVIA JOINT COMMUNIQUE, JUNE 7³

His Excellency the Secretary of State of the United States of America, Dr. Henry A. Kissinger, at the invitation of the Government of Bolivia, visited the city of Santa Cruz de la Sierra on the 6th and 7th of June, 1976. During his visit, he was received by His Excellency the President of the Republic of Bolivia, General Hugo Banzer Suárez, with whom he held cordial conversations on matters of mutual interest to both countries.

After a friendly dialogue between the Secretary of State of the United States and His Excellency the Minister of Foreign Relations and Worship of the Republic of Bolivia, General Oscar Adriazola Valda, the following Communique was issued:

Both sides reaffirmed the close ties of friendship between their peoples and their governments, and expressed satisfaction at the high level of understanding and cooperation existing between the two nations.

In this spirit, His Excellency the President of the Republic of Bolivia, General Hugo Banzer Suárez, and the Minister of Foreign Relations and Worship, General Oscar Adriazola Valda, outlined for the Secretary of State of the United States the scope of the Bolivian proposal for peace, development, and integration in the Southern Cone, intended to resolve Bolivia's geographic isolation by providing sovereign access to the Pacific Ocean.

The Secretary of State manifested great interest in this important subject, and stated that the Government of the United States views with satisfaction the progress which has been achieved up to the present toward reaching a definite solution that will satisfy the interests of the concerned parties.

The Secretary of State also emphasized that a negotiated solution to this century-old problem would constitute a substantial contribution to the peace and development of the South American continent.

The Chancellor of the Republic of Bolivia informed the Secretary of State of the United States of America that he had studied with great interest the speech given by Dr. Kissinger during the general debate at UNCTAD IV which took place in Kenya, in which he made known important proposals with regard to raw materials, trade, and financing; and expressed his desire that these proposals achieve an effective application within the framework of the United Nations system of cooperation for development.

The Governments of Bolivia and the United States

recognize the importance of international agreements on raw materials between producing countries and consuming countries. The United States has recognized for its part the importance of the income derived from exports of raw materials for countries in the process of development, such as Bolivia. The Foreign Minister and the Secretary of State agreed that the existing integration processes in Latin America should receive the necessary support since they constitute appropriate mechanisms for achieving inter-regional economic equilibrium, accelerating development and promoting joint activities for the achievement of harmonious and balanced progress.

The Foreign Minister and the Secretary of State agreed on the necessity to increase the efforts of both Governments to combat and eradicate the manufacture and traffic of dangerous substances. They also resolved to explore the means of encouraging the socio-economic development of the zones producing coca leaves so that such cultivation can be gradually reduced.

They agreed on emphasizing the need to augment substantially the capacity of developing countries, like Bolivia, to apply science and technology to their economic development programs. Likewise, they outlined the necessity to strengthen the mechanisms of cooperation in favor of the relatively less developed countries.

Both countries look forward to a prompt and successful conclusion of the Conference on the Law of the Sea on the basis of a consensus which satisfies the interests of the entire international community.

The Government of the United States reaffirms its willingness to consult with Bolivia with regard to its plans for sales of tin and other products from its strategic reserves and states that such sales will be made with due regard for protection against avoidable disruption of usual markets.

REMARKS AT ECLA HEADQUARTERS, SANTIAGO, CHILE, JUNE 9

Press release 296A dated June 9

Mr. Secretary [Enrique V. Iglesias, Executive Secretary of ECLA, the U.N. Economic Commission for Latin America], I appreciate very much the complimentary remarks that you have made, and I would like you and your distinguished staff to know that while it is a meeting of the General Assembly of the Organization of American States that brings me to Santiago at this time, I value this opportunity to meet with

³ Signed at Santa Cruz de la Sierra by President Banzer and Secretary Kissinger (text from press release 289).

July 5, 1976

23

you and to visit this renowned fountainhead of ideas.

You have much of which to be proud. You, Mr. Secretary, with all your well-known energy and wisdom have followed and successfully built upon the work of your very capable predecessors, [Raul] Prebisch, [Jose Antonio] Mayobre, and [Carlos] Quintana. These men, like you, were well known within and beyond our hemisphere as statesmen. My colleagues and I have great respect for the work you have done and for the tremendous accomplishments of the Economic Commission for Latin America. This center of study and action has done much to ignite the consciences of men everywhere to take on the challenges of economic development. Your approach is progressive, and especially because it is nonpolitical, it is effective.

As is only to be expected, we have at times not seen eye to eye with regard to certain problems or the prescriptions for dealing with them. But we have avoided ideological postures. Our thinking and, I believe, yours have evolved; in the process we have moved closer together with respect to many, if not most, essentials. We have listened and learned as this institution has led the movement for economic integration among the developing countries of this hemisphere. We have worked together on trade and development, and we have agreed with your shift in emphasis from import-substitution to export-oriented strategies.

The problem of economic development is not primarily a technical issue. It is profoundly a political and moral issue. It is not possible to build a world community which is divided between the rich and the poor. If we are to live in a world of peace and justice, all nations must have a sense of participation, and all nations must have the consciousness that the world community either takes into account their concerns or at least listens to their concerns.

This is why we attach such extreme importance to the dialogue that is now taking place between the developed and developing nations; for regardless of technical solutions we find, the spirit we can help engender can contribute to a world of peace and to a sense

of community. And this is why we are concerned when there are attitudes of confrontation or technical majorities, because it is the essence of an international structure that solutions cannot be imposed by one group on another but that a consensus must be established in which all share.

The nations of Latin America have a very special role to play in this process. They are among the most developed of the developing nations or among the least developed of the developed nations. They belong to the Organization of American States, and they are tied to us, a country which has a great concern with security and global equilibrium. But they are also a part of other groupings of the so-called Third World, and they can, therefore, in important respects act as a bridge between the views of the different groups that exist in the world today.

In the field of development, the United States has offered important proposals for dealing with current international economic difficulties. At the seventh special session of the U.N. General Assembly we put forth suggestions, and agreement was reached on a number of measures designed to enhance economic security and to cope with the cycles that in the past have devastated export earnings and undermined development, and we dealt with other issues relating to trade, technology, and capital flows.

In Nairobi, we advocated a comprehensive plan for addressing major commodity issues and set forth additional proposals for dealing with technology and other requirements for development. Our proposal for the establishment of an International Resources Bank failed for reasons of an accidental majority. But I cannot scold every forum that I meet on this topic. I think we have made our point.

The more fundamental problem I would like to put to this distinguished group is how to relate these general proposals for global development, which are important, to the special requirements of the Western Hemisphere.

My colleagues and I are doing a great deal of thinking on how, in a global context of

24

Department of State Bulletin

development, we can at the same time reflect
the special ties and the special values and
the particular institutions that have grown
up in this hemisphere—how we can avoid
being caught between the extremes of dog-
matic globalism and dogmatic regionalism.
We favor regional integration of the Western
Hemisphere or of the nations of Latin
America, either in subregional groupings or
in regional groupings; and we are going to
give very serious study to how, within a
global framework, we can spur the very spe-
cial concerns for development of our old
friends and associates in the hemisphere.

Today, at the meeting of the OAS Gen-
eral Assembly, I made some specific pro-
posals of what can be done within the frame-
work of existing legislation and within the
discretion that our executive has, but I also
pointed out that at the special session on
development that has been proposed by sev-
eral members at the General Assembly and
that we assume will take place next spring,
the United States will be prepared to ad-
dress the more fundamental questions that
I'm putting to my friends here: how to re-
late the global concerns for development
with the regional concerns of the Western
Hemisphere, because it would be wrong to
waste the traditions of cooperation and the
special relationships that have grown up in
this hemisphere.

I am providing your Executive Secretary
with a copy of the paper in which we made
a series of comments and recommendations
regarding cooperation for development, and
I hope that ECLA will find that it can play
a role with regard to some of the arrange-
ments we suggested on vital issues; for
example, on technology for development.
We hope also that you will not feel yourself
confined to the proposals that we have made
and will feel free to offer your own sugges-
tions. In looking at the record, the danger
that you will feel yourself confined by our
proposals is minimal.

The nations of this hemisphere are bound
by historical and other special ties and in-
terests. The United States consequently
supported and has been interested in the
work of ECLA since its founding in 1948.

I would also like to reciprocate the very
warm words of the Secretary General, whose
dedication to the cause of peace we admire
and whose indefatigable efforts in all areas
of world problems we support.④ I wish you
and the Executive Secretary the very best
as you carry on your important work, and
I would like to thank you for this very warm
reception I have had here.

NEWS CONFERENCE, MEXICO CITY, JUNE 11

Press release 300 dated June 11

Secretary Kissinger: Ladies and gentle-
men, having read some of your commen-
taries, I know you have many questions. I
would like, however, to take this oppor-
tunity to express again my very great joy
to be in this country which I love so much
and of which I have so many happy personal
memories and with which we've been so
closely tied officially. Especially I would like
to express my appreciation to my good
friend, your distinguished President, whose
contribution to peace and progress and jus-
tice is well known around the world and from
whose friendship and frank opinions we have
all benefited greatly. And now I'll be glad to
answer your questions.

Q. Mr. Secretary, what do you want to
obtain from Mexico? Do you want Mexico to
be subjected to you, or do you want its friend-
ship? [Laughter.]

Secretary Kissinger: You have to remem-
ber America is a pragmatic people, and I
know you are a heroic people, so I am not
here to attempt anything so foolhardy as to
attempt the subjugation of Mexico, and
that has never succeeded. In all seriousness,
the big international problem in the world
today is that for the first time in history
international relations have become global.

For the first time world peace has to be
built on the basis of a community of nations

⁴ Roberto Guyer, personal representative of U.N.
Secretary General Kurt Waldheim, conveyed a mes-
sage from the Secretary General.

July 5, 1976

ELO

25

that feel that they have a sense of partici-
pation and a sense of justice. That can only
be done by the voluntary cooperation of
other countries, and in this sense, Mexico
and the United States—that have had a very
complicated history and in which paternal-
ism was not always asked—have a special
opportunity to demonstrate how two great
peoples can cooperate on the basis of equality.
And if we do not cooperate on the basis of
equality, we can achieve nothing.

Q. When you speak of the dictatorship of the majorities, could we apply the same concept to the majorities in the United States with reference to their own political life?

Secretary Kissinger: Of course, there is a
difference between the domestic—the con-
duct of domestic affairs and the conduct of
international affairs.

In domestic affairs in a democratic coun-
try, it has proved to be the most equitable
system to let the majority determine the de-
cisions of the people. This works especially
in countries where the minority has an op-
portunity to become the majority. In coun-
tries where there is a permanent minority
and a permanent majority along racial lines,
it also has its problems. Internationally,
when we have used the phrase "the dictator-
ship of the majority," we have applied it to
situations in which a numerical grouping of
countries composed of countries of very un-
equal status, whose total population might
be very small, attempted to impose their will
on a minority, without whose willing cooper-
ation it is not possible to achieve anything.

I believe that in the problems of develop-
ment especially, but in all international prob-
lems, the art of foreign policy is to obtain
the willing cooperation of all those without
whose cooperation progress is not possible.
And if one is looking for parliamentary-type
victories in a situation in which there is no
ability to enforce those victories, one is
working essentially for propaganda and not
for substance. And therefore we have inter-
nationally expressed concern about unofficial
majorities. On the other hand, we are pre-
pared to work out cooperative solutions, and

I believe in the international field one should
proceed by consensus and not by imposition
—either imposition by power or imposition
by majority.

Q. Mr. Secretary, do you have information
that Cuba is in fact withdrawing its troops
from Angola, and if this is the case, does this
inspire you to resume your efforts to improve
relations with Cuba?

Secretary Kissinger: We have had infor-
mation through the Swedish Prime Minister
and other statements that were made to vari-
ous other countries that Cuba intends to
withdraw troops at a rather slow rate from
Angola. We have not yet been able to achieve
a conclusive confirmation, especially a con-
firmation of whether there is a net return
or whether there is a rotation. So, at this
point it would be premature for us to draw
any conclusions.

We had, in principle, been prepared to ex-
plore the normalization of relations with
Cuba as long as Cuba conducted its affairs
as a national Latin American or Western
Hemisphere state and not as a country ex-
porting revolutionary activities. The intro-
duction of large military organized contin-
gents in Angola has created a very serious
situation in our relationship with Cuba.

At this moment the withdrawal is of too
small proportions to permit us to draw any
conclusions. I would say that the precondi-
tion for any improvement in our relations
with Cuba is the total withdrawal of all or-
ganized military units from Angola.

Q. I have two questions to ask of you, Mr.
Secretary. You have made reference to the
fact that the United States would never per-
mit another situation like the situation of
Angola; that is to say, that it would not per-
mit the interference of Cuban troops in any
country and also in countries of Latin Amer-
ica. How is it that the United States can
determine what the internal policy of a coun-
try is to be and what it will permit and not
permit internationally?

Secondly, I would like to refer to President
Echeverria's visit in 1971 to the United

26

Department of State Bulletin

Nations, when he proposed the admittance into the United Nations of the People's Republic of China. At that time, the United States opposed the suggestion that was made by President Echeverría, and the United States said that the two Chinas should be admitted. At that point, President Echeverría responded that sovereignty is indi- visible and that therefore there could only be one China. Now, with reference to all of this, I would like to know how you view President Echeverría at this particular point because of this reply and this stand. Is there any resentment on your part?

Secretary Kissinger: With respect to the first question, we do not assume the right to intervene in the domestic policies of other countries. For example, in Mozambique, the group that took over—got the government of Mozambique—is in its political views as different from our predominant views as the MPLA [Popular Movement for the Liberation of Angola] in Angola. Nevertheless we recognized it as soon as it came into office and have established improved relations with the Government of Mozambique. We are prepared and are making every effort to improve the relationship further.

The situation in Angola is not an internal affair. It is the massive introduction of at least 15,000 Cuban combat troops in a country thousands of miles away from Cuba, in a civil war situation. When I say we do not wish to see any more Angolas, I do not mean the internal struggles of Angola. I mean the introduction of outside military forces, supported by the Soviet Union, encouraged by the Soviet Union, and acting as surrogates for the Soviet Union. This is what the United States will oppose.

Now, with respect to President Echeverría, I think you must have seen from our greetings that we consider each other personal friends. I have very high regard for President Echeverría and great respect for the role that Mexico has played internationally. Of course, Mexico, being an independent sovereign country which is not governed by weakminded individuals, has its own views on

a number of international problems. Those views do not always coincide with ours. When we differ, we intend to discuss our differences. Sometimes we succeed in eliminating the differences. But sometimes we do not.

In those cases, each country pursues its own policy. Nothing has happened so far, and nothing is likely to happen that I can foresee that will affect the basic friendship that exists between Mexico and the United States. We do not have resentment of President Echeverría. We have the highest regard for him, and I personally have great affection for him.

Q. Mr. Secretary, what can you tell us about negotiations regarding conditions in Mexican jails, conditions that Americans are held in? Are they going well, and what are those conditions?

Secretary Kissinger: The distinguished Foreign Minister of Mexico and his associates and my associates and I had, as you know, an extensive discussion yesterday evening on a large number of bilateral issues. The problem of prisoners was part of that discussion.

I think it is important to point out that in fact more Mexicans are held in American prisons than Americans in Mexican prisons. And we discussed how to alleviate the general situation of individuals being held in prison in a foreign country. The Mexican side presented a number of rather ingenious and interesting proposals which we would like to study carefully and on which we are going to begin, in the near future, intensive bilateral discussions.

I can say that the discussions yesterday were conducted in a very constructive spirit, with the recognition by each side of the sovereignty of the other, but also with an attitude of good will to settle what is a very complicated problem; and I am hopeful that we can make progress on this.

Q. Mr. Secretary of State, I would like to mention that during the third UNCTAD [U.N. Conference on Trade and Development], which took place in Santiago de Chile,

July 5, 1976

27

President Echeverría proposed a charter, the Charter of Economic Rights and Duties of States. This was in April 1972. Later on, in December 1974 and against the will and vote of the United States, this charter was approved by 120 countries within the United Nations. My question is the following: Do you not believe that an attitude such as this one taken by the United States is going to bring on the unpopularity of the United States within the United Nations?

*Secretary Kissinger:* Of course, we cannot finally make our foreign policy on the basis of popularity or unpopularity, any more than any other nation can. We have to follow our best judgment of what we consider to be in the national interest and in the world interest.

With respect to the proposal of President Echeverría for a charter, I was very attracted to the concept. And in two speeches at the U.N. General Assembly, I supported the concept that President Echeverría put forward, and so did the U.S. Government.

In the elaboration of the charter a number of provisions were included that we felt were simply not acceptable and were against some basic principles of our foreign policy and of our foreign economic policy. We would have been prepared, if it had been possible to arrange, to vote on different items in the charter, rather than for the charter as a whole. We had offered to vote on individual items, in which case we could have supported, I think, 98 percent of the charter and simply voted against the provisions with which we disagreed, if we had not been also forced to vote on the entire charter.

So it is a concept which we supported. There are three or four provisions in it with which we disagreed. The majority of the provisions we could have supported, and it was one of those issues where, I believe, with a different parliamentary management, we could have achieved a more satisfactory outcome. But I would like to say now that the United States did not oppose the concept of

the charter, nor does it oppose the overwhelming majority of the provisions in the charter. And we, at the time that it was proposed, took an opportunity to commend President Echeverría for his initiating it.

Q. Mr. Secretary, is the United States concerned that Cuba is trying to expand its influence in the Caribbean, particularly by influencing the Governments of Jamaica and Guyana?

*Secretary Kissinger:* I would like to make a distinction between the diplomatic activities of a country and the military activities of Cuba—Cuban diplomatic activities and Cuban political efforts to gain influence in matters that are subject to our foreign policy. And we are sufficiently self-confident that we believe that we can sustain a political competition with a country like Cuba. Our concern is the military infiltration or the movement of military units by Cuba. This we would oppose. We have seen no evidence of the movement of organized Cuban military units within the Western Hemisphere. As for other Cuban influence, this is a matter that we will deal with in diplomatic channels.

Q. Mr. Secretary, could you give us your assessment of the implications of the entrance of other Arab armies into Lebanon with the Syrians? And, additionally, could you give us some feeling as to what you feel the implications are of a possible military defeat of the PLO [Palestine Liberation Organization] in Lebanon? Would it make renewed negotiations easier or more difficult?

*Secretary Kissinger:* The primary American interest in Lebanon is to bring an end to the fighting and to end the suffering of the Lebanese people that has gone on too long and that has exacted an enormous and exorbitant toll of human life.

At an earlier period, we endorsed the idea of an Arab force as one means of bringing about security. In this particular case, we do not know the composition of the force, nor do we know the attitude of the Syrian Gov-

28

Department of State Bulletin

ernment toward the force. And we are at-
tempting to clarify these issues and also the
role that that force is going to play before
we take a final position, but we would gener-
ally support efforts that have a promise to
end the fighting.

As for the exact military situation—who
is winning—the United States does not look
at this problem from the point of view of
what helps the negotiating process. We have
no clear view of what the military situation
is, since we are receiving very confused re-
ports.

Our primary objective is to put an end to
the fighting, to do it in a manner that re-
spects the sovereignty and integrity of Leb-
anon, enables the Moslem and Christian com-
munities to live side by side with each other;
and our attitude toward specific measures
will be governed by those principles.

Q. Mr. Secretary, I have two questions to ask. The first question is: What is your opinion in reference to the junta, a military Chilean junta? Does your presence in Chile signify in any way your support for the government of Augusto Pinochet? And my second question is the following: Do you foresee that the moment will come when the United States and Russia will come to a confrontation in any one of the countries outside the United States and Russia that are having a difficult time?

Secretary Kissinger: I visited Chile to-
gether with the Foreign Ministers of every
other Western Hemisphere country except
Mexico to attend the General Assembly of
the Organization of American States, as I
have every year since I became Secretary of
State. While I was in Chile, I stated the basic
position of the United States with respect to
human rights throughout the Western Hemi-
sphere and called attention to the fact that
the constituent documents of every one of
the American republics calls attention to the
protection of the individual, as you would ex-
pect in a hemisphere to which millions fled
from oppression. I had an opportunity to dis-

cuss our views with respect to Chile in that
statement, and I had an opportunity to dis-
cuss the matter privately also with the
Chilean Government.

At the same time, as Latin Americans you
will understand that it is more in conformity
with the dignity of my oath to enable them
to make their decisions as Chilean decisions,
and we have been told that there will be a
constitutional act forthcoming that takes
into greater account the concern for human
rights that many countries in the Western
Hemisphere have expressed. And we want
to wait for this constitutional act before we
express any judgment.

With respect to the relationship of the
United States and the Soviet Union, we are
ideological opponents. We confront each
other politically and ideologically in various
parts of the world. At the same time, we also
possess nuclear weapons, and we have the
capacity to destroy humanity. And there-
fore we have an obligation, unprecedented in
history, to conduct our competition in a way
that reduces and, in time, eliminates the
dangers of nuclear war. It is therefore the
basic policy of our government to use every
opportunity to seek to bring about a world
that is based on something more stable than
a balance of terror and in which we strive
for conditions of peace that depend on some-
thing other than a pure equilibrium of
power. No responsible American leader can
do anything else. And this is a political duty,
and it is a moral duty that any American
leader, of whatever party, will have.

[Secretary turns to next questioner.] I
know she's been waiting to destroy me for
45 minutes. [Laughter.]

Q. I have two questions to ask. I want to know why it is that you consider that the participation of Cuba or the solidarity shown by Cuba in the Angola case is intervention and why you do not consider that the participation of the United States in the Chilean case is similar intervention. Aside from that, I want to point out that you signed the peace

July 5, 1976

29

agreements in Paris in the Viet-Nam case and that it was for this reason that you were awarded the Nobel Prize. The agreements have not been complied with. I would like to know whether you are ready to give back the prize until the agreements are complied with.

Secretary Kissinger: I knew that the question would not be entirely friendly when I recognized you.

The Cuban action in Angola was the introduction of massive organized military units into a civil war. The U.S. position was that all outside countries, including the United States, should stay out of that civil war and that the parties in that civil war should settle their disputes. And half of the countries of the Organization of African Unity agreed with our point of view.

With respect to the situation in Chile, it will be impossible ever to catch up with the mass of misleading information that has been put out in many quarters. Basically, what the United States attempted to do was to enable the democratic parties and newspapers of Chile to survive until the 1976 elections in the face of confiscatory taxation. And that was the principal thrust of the American effort in Chile.

With respect to the Viet-Nam Peace Agreement, I think there must be limits to hypocrisy. The only clause of the peace agreement that the Vietnamese are still talking about is the clause that speaks about the principle that the United States would assist North Vietnamese economic recovery. Every other clause of that agreement has been systematically, flagrantly, totally violated by the North Vietnamese. And I have never yet seen an international situation in which one government had the colossal nerve to insist that the one provision that still exists must be observed, when it has totally violated every other provision of the agreement.

And, therefore, if North Viet-Nam wants to talk to us, we have indicated a willingness to talk, especially after they have fulfilled the requirement of the Paris accord with respect to the missing-in-action. But it is ab-

surd to insist that the one remaining clause of the Paris accord should be observed, when all others have been flagrantly violated by the Vietnamese.

TOAST BY SECRETARY KISSINGER,
MEXICO CITY, JUNE 11, 5

I want to begin by saying that it gives me the greatest satisfaction to be able tonight to reciprocate to my Mexican friends a small measure of the hospitality which this great and beautiful country has so warmly extended to me on so many occasions in the past. I spent my honeymoon here; I have deep professional and personal ties to Mexico.

I have never come to this land without sensing deeply both the glory of Mexico's ancient past and its dynamism today—the thousands of years of civilization that culminated in the panorama of splendor that so awed the first conquistadors and now the vibrant course of modern Mexico, whose struggle for political and economic independence, dignity, and social justice has won for it the admiration of the community of nations as well as a growing role of leadership in international affairs.

The impact which Mexico is making on our interdependent world, as all of us here know, is attributable in large part to the boundless energy and broad vision of President Luis Echeverría. He is an inspirational leader. I have had the privilege of working with him for nearly six years. He will be remembered in history for his great contributions to peace, progress, and justice.

Tonight I want to discuss two great tasks which are deep and permanent concerns of our two nations; both bear the personal mark of President Echeverría:

—The global challenge of helping to construct a new and peaceful international order

⁵ Given at a dinner hosted by Secretary Kissinger in honor of President Luis Echeverría Alvarez (text from press release 301A).

30

Department of State Bulletin

offering justice and prosperity to all peoples; and

—The state of the special, indeed unique, bond between the United States and Mexico.

The United States respects and values Mexico's role on the world scene. We also cherish our close historical, practical, and personal ties as neighbors. There is no conflict between these realities. Indeed, they offer our two nations a precious advantage as we approach together the great issues of our time.

Mexico and the United States are independent and self-confident nations. We are mature enough to encounter the trials of our era without crises of identity and without allowing differences permanently to divide us. We are serious enough to disagree without rancor, creative enough to cooperate without threatening each other's independence. In this, we are truly at the frontiers of Western civilization. As North American nations we are irrevocably linked by geography, history, interest, and principle. We need sign no documents to insure our kinship of thought and action as free and friendly peoples. We have a relationship all the more special for being unwritten.

## Global Challenges: Peace, Prosperity, Justice

History has presented this generation with two great and unique challenges: the imperative of peace in the nuclear age and the need to give purpose to peace by helping to shape a new structure of international relations that speaks to the positive aspirations of all peoples.

Every nation has a stake in, and responsibility for, the problem of global peace. Each has its special circumstances and its special role.

The United States, uniquely among the free nations of the world, bears a heavy responsibility to maintain the balance of stability upon which world peace depends. This is why we are committed to oppose the forces of intimidation and oppression whenever they threaten the global equilibrium. But we

know, as Mexico knows, that peace is tenuous and progress is fragile without a curb on, and eventually an end to, the arms race. This is why we have embarked on the difficult and complex negotiations to limit strategic arms, to reduce these arms, and to ease the economic burden of the arms race.

Mexico, whose voice is heard by all the major groupings of the world's nations, also bears a responsibility for peace. Mexico has been among the staunchest proponents of disarmament and the use of national resources for development rather than the accumulation of arms. Mexico was the leader in negotiating the Treaty of Tlatelolco establishing a nuclear-weapons-free zone in Latin America. And Mexico has raised its voice in support of the dignity, security, and self-determination of nations threatened by external intervention.

But the ultimate purpose of nations is to look beyond a peace that rests exclusively on a precarious balance of power to a new era of international economic cooperation. We must offer our children the hope of a better future by mastering the great economic and social challenge of building a new, equitable, and productive relationship among all nations and particularly those of North and South.

The problem of economic development is not merely a technical but a profoundly political and moral issue. It is not possible to build a world community which is divided between the rich and the poor. If we are to live in a world of peace and justice, all nations must have the consciousness that the world community listens to their concerns.

This is why we attach such importance to the dialogue now taking place between the developed and developing nations. For beyond the technical solutions we may reach, the spirit we help engender can contribute to a world of peace and to a sense of community. This is why we are disturbed by attitudes of confrontation and concerned by those who seek gains through technical majorities. It is the essence of an effective in-

July 5, 1976

31

ternational structure today in our interdependent world that solutions cannot be imposed by one group on another but that a consensus must be established in which all share. By continuing to grow in strength and international participation, Mexico, and indeed all the nations of Latin America, can in important respects act as a bridge between the different groups that exist in the world today.

The United States has accepted the challenge of an interdependent world. We are committed to the cause of cooperation on an equal basis between all nations—whatever their stage of development. We have pursued this course at the seventh special session of the U.N. General Assembly, in the Conference on International Economic Cooperation, at Kingston in January, at Nairobi last month. There have been setbacks, of course, but we believe a new and positive atmosphere has been created, and we join with your President in the view that the serious and responsible nations of the world now have an unprecedented opportunity to advance mankind's age-old dreams of a better life.

The United States knows that while our specific approaches to these problems may differ, Mexico shares our aspirations for a better world of peace and prosperity. Mexico has used its growing international influence to focus on the great global efforts to secure peace and enhance the quality of human life. Mexico's example is proud and compelling, not only for the peoples of the Americas but for all who value peace, prosperity, and justice.

Mexico's economic growth and progress have made it a vital force in international affairs. Mexico had a major influence on the course of the seventh U.N. special session and is an active participant in all international efforts to accelerate development through a fair and cooperative global economic system. Mexico's energetic promotion of the Charter of Economic Rights and Duties of States—which you yourself inspired, Mr. President—itself symbolizes the need for a new awareness that interdependence is not a slogan, but a reality.

And since the Revolution of 1910, Mexico has presented the international community with the example of a proudly independent nation committed to progress and social justice. Today Mexico's voice is heard and heeded in the leading councils of the world.

It is my profound conviction that Mexico and the United States together have a priceless advantage upon which to base common efforts in virtually every major area of human and international concern. Mexico's history, economic growth, institutional stability, and political imagination enable it to bring independent new dimensions to the global cooperation so essential to our shared hopes for a less divided and more prosperous world.

—The United States believes that the universal search for an enduring structure of peace for all peoples is possible only if it is based upon the free commitment of strong, stable, and responsible nations. Mexico's growing national strength and development and deepening participation in global councils strengthen the voice of this hemisphere and have given a special projection to the nations of North America in the vital debates of our time on such matters as disarrament and global security.

—The higher stage of economic progress that Mexico has attained has brought it into the company of economies which are vulnerable to global inflation, to sudden fluctuations in world patterns of supply and demand, to important technological change and investment capital shortages. At the same time, our economies are among the world's most open and flexible. We can respond to change quickly and effectively. We have the opportunity and the responsibility and the will to shape the course of economic events rather than to acquiesce in the stale determinism that paralyzes so many nations of the world. In the key areas of finance, technology, investment, and trade, the United States and Mexico, and with us the other nations of the hemisphere, have outstripped the world as a whole. Our habits of practical cooperation give us a head start. The efforts we take together can thus make a special and positive

32

Department of State Bulletin

contribution to the course of development around the world.

—Beyond peace and prosperity lies a deeper universal aspiration for dignity and justice. Our two countries are both committed to the rule of law and extending the reach of international law in world affairs. This is most urgently needed with regard to the last great frontiers of our planet—the oceans. They are the common heritage of mankind, but they can become arenas for conflict if not governed by law. The differences between us on the issues involved have led to tensions, but they are issues which nations everywhere will have to solve. Our two nations have a special advantage and thus a special responsibility to reach agreement on our differences in the context of a rapid and successful conclusion to the Law of the Sea Conference this year. We have agreed to urgent consultations on this important issue.

And we have as well an obligation to the deeper sources of our common humanity. No peoples have been more dedicated to the cause of human dignity and liberty than ours. The struggle to secure the peace or to widen prosperity ultimately will have no meaning unless the peoples of the world can pursue their aspirations without fear, in societies which foster the fundamental rights of mankind.

At the General Assembly of the Organization of American States in Santiago earlier this week, I reaffirmed the unequivocal commitment of the United States to the American Declaration of the Rights and Duties of Man. The United States endorsed the reports presented there by the Inter-American Human Rights Commission, whose powers we proposed be broadened. We did so in the recognition that the precious heritage of our Western Hemisphere is the conviction that human beings are the subjects, not the objects, of public policy; that citizens must not be the mere instruments of the state.

The traditions of our two countries and our heritage as free American republics places upon us a special trust to defend and carry forward the principle that progress is

sterile unless it enhances the areas of human freedom.

These are some of the great global challenges we both face. Let me turn now to the bilateral process through which we shape our progress as friends and partners.

### U.S.-Mexico Independence and Interdependence

The imperatives of the relationship of Mexico and the United States are not to be found in words, but in geography. Our shared destiny is literally written in stone. But the special relationship we have today represents as well an achievement of human will and responsibility.

The work we are doing together serves not only to strengthen our own ties; it is a demonstration to the world that two nations can resolve, in a reasoned and responsible manner, problems of acute sensitivity in areas touching upon national sovereignty, economic advantage, and human concern.

Let me briefly review the record of shared effort we have compiled and the work yet before us in each of these three areas.

First, how many nations of the world could accept as natural and comfortable an undetermined boundary of nearly 2,000 miles? Our active day-to-day cooperation along our border is a rare phenomenon. Through the years, our joint International Boundary and Water Commission has solved major problems of shifting boundaries, flood control, and water distribution. The solution of the Chamizal and other territorial issues, the resolution of the problem of Colorado River salinity, and the coordination of air traffic control along our border have all been approached cordially, persistently, and constructively. This is a record of which we can be proud and on which we can build as we take up further aspects of cooperation along the border, such as widened cooperation on search and rescue operations and problems affecting the environment.

Second, we have acted and are acting with mutual respect and great responsibility on issues of substantial economic interest, such as the desire of Mexican workers to seek employment in the United States and of Mexican exporters to sell in our country's

July 5, 1976

etin

33

markets. After decades of relatively satis-
factory accommodation to the question of
undocumented workers, we now face a num-
ber of new issues requiring mutual study
and heightened cooperation—and that must
take into account the legitimate concerns
both of the people of the United States and
the human rights of Mexican citizens.

We share Mexico's concern over your large trade deficit in 1975. The economic recovery in the United States and the continuation of the forward-looking attitude which now informs U.S. trade policy will serve, I am confident, to bring our trade accounts closer into balance. Even more important, the U.S. Trade Act's generalized system of preferences will expand Mexico's access to our market. Indeed, Mexico, with over a half billion dollars' worth of exports eligible for duty-free treatment, should be the primary beneficiary of our new tariff system which gives products of developing countries competitive advantage over products of developed nations.

Third, both our nations have acted with
heart and with vision on matters of deep
human concern. We have combined our ef-
forts with increasing success against the
international narcotics trade, which has vic-
timized so many citizens of both our coun-
tries. The effort of the Mexican Government
to stop the production and trafficking of
dangerous drugs in Mexico can stand as a
model for the world. We are proud to be
able to support you in your increasingly
effective program of narcotics control. A re-
lated issue now before us concerns the need
to prosecute narcotics violators to the full
extent of the law while at the same time
insuring the observance of their legal and
human rights. We have had useful talks
about improving the situation of nationals
of our two nations imprisoned in the other
country.

And, more positively, we have strength-
ened the cultural relations between our two
nations. We share deep ethnic, linguistic,
intellectual, and historical ties. Mexico's
early recognition of the importance of pre-
serving a nation's cultural heritage has in-

spired similar efforts around the world and
won the admiration of the millions who ex-
perience firsthand, as I shall tomorrow, the
glories of your Mayan past. The treaty on
the protection of cultural property between
the United States and Mexico has been in
force since 1970 and has proven effective.
We are proud to assist Mexico's efforts to
defend its cultural patrimony as a sustain-
ing value for future generations.

As we look to the future we are witness-
ing a growth of balanced two-way exchanges
which range across the spectrum of intellec-
tual and cultural life, from the arts to the
humanities to technology. While increasing
numbers of Mexicans are studying in the
United States, more U.S. students are learn-
ing at Mexican universities than in any
other nation. Each of us is developing a
greater appreciation of the creative experi-
ence and achievement of the other—in
science, music, literature, and the visual arts.
We are prepared to move ahead even more
vigorously to promote cultural exchange and
cultural understanding, recognizing that
they are powerful forces affecting the qual-
ity and tone of the future course of our
relationship.

All these are issues of immediate and di-
rect concern to our two nations. But they are
also variations on the large themes of sover-
eignty, economic interest, and human con-
cern that affect nations everywhere. Our
struggles and our successes in dealing effec-
tively and creatively with our own inter-
dependence are relevant to the rest of the
increasingly interdependent world in which
we live.

In a period when mankind faces inter-
national problems which are not only com-
plex but fraught with ultimate risks, it is
unrealistic as well as unwise to expect easy
solutions. What we can and must seek to
bring about is an atmosphere—in bilateral,
regional, and global relations—in which
problems are addressed positively and con-
structively, in which divergent views are
expressed openly and freely without wound-
ing and sterile rhetoric, and in which the
objective is an effort to solve problems prag-

34

Department of State Bulletin

["and ex-\nec-\ntive\ncon-\nference\nis\nheld\nin\nthe\nname\nof\nthe\nunited\nstates\nto\n助\n助\n助\n助\n助\n助\n助\n助\n助\n助\n助\n助\n

financing of production, which is provided from
various major urban centers in the United States.

(2) The question of American prisoners detained in Mexican jails—the majority of whom have been apprehended in the course of the permanent campaign which Mexico is carrying out against illegal drug traffic. Mexico has proposed several possible remedies to this problem, which take into account the plight of the considerable number of Mexicans detained in United States jails. The Secretary assured the President that the United States would study these proposals with care, and offered that representatives of the United States would meet soon with the appropriate Mexican authorities for further consideration of the Mexican initiatives.

(3) Trade relations between Mexico and the United States. The Secretary agreed that the United States would give early consideration to several suggestions by Mexico to improve the trade balance between the two countries, which is adverse to Mexico.

At the end of the talks, the President requested the Secretary to transmit to the President and the people of the United States, his warm congratulations on the occasion of the two hundredth anniversary of the Declaration of Independence, and expressed his best wishes for the continued progress and well-being of the people of the United States, on the basis of the same historic ideas which inspired the Founding Fathers two hundred years ago in their struggle for independence, democracy and liberty for all peoples.

The Secretary transmitted to the President the
admiration of the American people for Mexico's own
proud record in its commitment for social justice,
progress and the rule of law.

Finally, the Secretary expressed his personal ap-
preciation for the spirit of hospitality shown him
by the Government of Mexico and its people.

Congressional Documents
Relating to Foreign Policy

94th Congress, 1st and 2d Sessions

Allocation of Resources in the Soviet Union and China—1975. Hearings before the Subcommittee on Priorities and Economy in Government of the Joint Economic Committee. Executive sessions. June 18–July 21, 1975. Part 1. 177 pp.

Americans Missing in Southeast Asia. Hearings before the House Select Committee on Missing Persons in Southeast Asia. Part 1; September 23–October 23, 1975; 125 pp. Part 2; November 5–December 17, 1975; 312 pp.

United States-Soviet Union-China: The Great Power Triangle. Hearings before the Subcommittee on Future Foreign Policy Research and Development

of the House Committee on International Relations.
Part I. October 21, 1975-March 10, 1976. 149 pp.

Military Sales to Saudi Arabia—1975. Hearings before the Subcommittee on International Political and Military Affairs of the House Committee on International Relations. November 4–December 17, 1975. 42 pp.

International Security Assistance Act of 1976. Hear-
ings before the House Committee on International
Relations on H.R. 11963; November 6, 1975-Feb-
ruary 19, 1976; 973 pp. Report of the committee,
together with supplemental, additional, and dis-
senting views; H. Rept. 94-848; February 24,
1976; 113 pp.

United States-China Relations: The Process of Nor-
malization of Relations. Hearings before the Spe-
cial Subcommittee on Investigations of the House
Committee on International Relations. November 18,
1975–February 2, 1976. 230 pp.

94th Congress, 2d Session

Foreign Investment and American Jobs. Hearings before the Subcommittee on International Economic Policy of the House Committee on International Relations. Part I. January 27–February 4, 1976. 91 pp.

Oversight Hearings on U.S. Foreign Trade Policy. Hearings before the Senate Committee on Finance. January 29–February 4, 1976. 513 pp.

State Department Authorization for Fiscal Year 1977. Hearings before the Subcommittee on International Operations of the House Committee on International Relations. February 9–24, 1976. 155 pp.

Managing International Disasters: Guatemala. Hearings and markup before the Subcommittee on International Resources, Food, and Energy of the House Committee on International Relations on H.R. 12046, to provide for relief and rehabilitation assistance to the victims of the earthquakes in Guatemala, and for other purposes; February 18–March 4, 1976; 97 pp. Report of the committee to accompany H.R. 12046; H. Rept. 94–891; March 11, 1976; 6 pp.

Waiver of Countervailing Duties on Swiss Emmen-
thaler and Gruyere Cheese. Communication from
the Assistant Secretary of the Treasury (Enforce-
ment, Operations, and Tariff Affairs). H. Doc. 94-
379. February 23, 1976. 8 pp.

A New Panama Canal Treaty: A Latin America Imperative. Report of a study mission to Panama November 21-23, 1975, submitted to the House Committee on International Relations. February 24, 1976. 60 pp.

U.S. Information Agency Authorization Act, Fiscal Year 1976. Report of the House Committee on International Relations to accompany H.R. 11598. H. Rept. 94-849. February 25, 1976. 5 pp.

To Amend Further the Peace Corps Act. Hearing before the House Committee on International Relations; February 26, 1976; 52 pp. Report of the committee to accompany H.R. 12226; H. Rept. 94-874; March 4, 1976; 8 pp.

36

Department of State Bulletin

Ambassador Scranton Comments
on World Health Assembly Action

Following is a statement by William W.
Scranton, U.S. Representative to the United
Nations, issued on May 21.

USUN press release 58 dated May 21

From time to time U.N. agencies make de-
cisions which are of critical importance to
the entire U.N. system. The recent decisions
by the World Health Assembly in Geneva
show how the politicization of U.N. agencies
not only denigrates the agencies but is po-
tentially ruinous to the United Nations as
a whole.

The World Health Assembly refused to
consider the report of three eminent physi-
cians on the situation in the occupied terri-
tories as it related to the health care of the
inhabitants. Israel permitted an investiga-
tion by the individual physicians, but not as
a committee. The WHA now has gone on to
demand that the committee as a whole visit
the occupied territories—in other words, the
same men should go back and see the same
things, but this time as a trio. Perhaps the
mode by which Israel chose to cooperate
with the WHA was less than perfect. The
key point is that Israel chose to cooperate.
It met the WHA more than halfway.

How did the WHA respond to this effort
at cooperation?

It responded by placing shortrun, irrelevant considerations ahead of health concerns. It refused to consider the report of the physicians it itself had designated. It adopted instead a highly political resolution which deals mostly with Israeli behavior in matters unrelated to health in occupied territories. The United Nations has appropriate bodies, such as the Security Council, for the handling of political issues, and the situation in the West Bank area is under active consideration in the Security Council at this time.

The absence of balance, the lack of per-
spective, and the introduction by the WHA
of political issues irrelevant to the responsi-
bilities of the WHA do no credit to the

United Nations. Indeed, this is precisely the
sort of politicized action which decreases re-
spect for the U.N. system.

How long will there be any respect what-
soever for the United Nations if such politi-
cization becomes pervasive in areas where it
clearly does not belong, particularly in the
health matters, one of humanity's greatest
concerns? A person's, a people's, a nation's
health is more important than all the extra-
neous politicizing in the world.

Clearly the WHA action is a gross politi-
cal interference in matters of health care.
This misuse of U.N. agencies must stop if
the U.N. system is not to be dangerously
eroded.

TREATY INFORMATION

U.S. and U.K. Reach Understanding
on Acceptance of Air Charters

Department Announcement ¹

The United States and the United Kingdom concluded on April 28 a memorandum of understanding on passenger charter air services, under which each government will, with some exceptions, accept as charter-worthy transatlantic charter traffic originating in the territory of the other and organized and operated in accordance with the other's charterworthiness criteria.

The understanding was brought into force
by an exchange of diplomatic notes in Lon-
don. The understanding is not an exchange
of economic rights, but it is expected to pro-
vide stability in the U.S.-U.K. charter
market and to facilitate the operation of
charter flights, including the recently
authorized one-stop inclusive tour charter,
between both countries by the air carriers
of both countries during 1976.

¹ Issued on May 12 (text from press release 245, which includes the text of the memorandum of understanding).

July 5, 1976

37

Ger-

pera-
velop-
s in
tober
TIAS

with
1964.
881.
1976;

lay 4,

Un-
ied at
ed at
July
d into

fay 4,

of the
(TIAS
protocol
'ention
Done
the Jan-

(with
1976;

lamage
ington,
nterred
United

1976.¹
ed into
York

76.

nnexes.

976.

Trade

Arrangement regarding international trade in tex-
tiles, with annexes. Done at Geneva December 20,
1973. Entered into force January 1, 1974, except
for article 2, paragraphs 2, 3, and 4, which
entered into force April 1, 1974. TIAS 7840.

Acceptances deposited: Paraguay (ad referen-
dum), May 17, 1976; Uruguay, May 11, 1976.

Ratification deposited: Guatemala, May 19, 1976.

Whaling

International whaling convention and schedule of
whaling regulations. Done at Washington Decem-
ber 2, 1946. Entered into force November 10, 1948.

TIAS 1849.

Notification of adherence: New Zealand, June 15,
1976.

Protocol to the international whaling convention of
December 2, 1946 (TIAS 1849). Done at Washing-
ton November 19, 1956. Entered into force May
4, 1959. TIAS 4228.

Wheat

Protocol modifying and further extending the wheat
trade convention (part of the international wheat
agreement) 1971 (TIAS 7144). Done at Washing-
ton March 25, 1975. Entered into force June 19,
1975, with respect to certain provisions and July
1, 1975, with respect to other provisions. TIAS
8227.

Ratification deposited: Austria, June 15, 1976.

Protocol modifying and further extending the wheat
trade convention (part of the international wheat
agreement) 1971 (TIAS 7144, 8227). Done at
Washington March 17, 1976. Entered into force
June 19, 1976, with respect to certain provisions,
and July 1, 1976, with respect to other provisions.

Ratifications deposited: Australia, June 11, 1976;
Canada, Republic of Korea, June 16, 1976; Pak-
istan, June 17, 1976; Ecuador, June 18, 1976.

Accession deposited: Denmark, June 17, 1976.⁵

Declarations of provisional application deposited:
Finland, June 11, 1976; Switzerland, June 15,
1976; Greece, Kenya, June 16, 1976; Belgium,⁵
European Economic Community,⁵ France,⁵ Fed-
eral Republic of Germany,⁵ Ireland,⁵ Italy,⁵ Lux-
embourg,⁵ Netherlands,⁵,⁶ Tunisia, United King-
dom,⁵,⁷ United States,⁴ June 17, 1976; Egypt,
Japan,⁵ Norway, June 18, 1976.

Protocol modifying and further extending the food
aid convention (part of the international wheat
agreement) 1971 (TIAS 7144, 8227). Done at
Washington March 17, 1976. Entered into force
June 19, 1976, with respect to certain provisions,
and July 1, 1976, with respect to other provisions.

Ratifications deposited: Australia, June 11, 1976;
Canada, June 16, 1976.

Declarations of provisional application deposited:
Finland, June 11, 1976; Switzerland, June 15,
1976; Belgium, European Economic Community,

France, Federal Republic of Germany, Ireland,
Italy, Luxembourg, Netherlands,⁶ United King-
dom, United States,⁴ June 17, 1976; Japan,⁸
June 18, 1976.

BILATERAL

Bangladesh

Loan agreement relating to installation of a 50-
megawatt hydrogenerating unit at Karnaphuli
Power Station, Kaptai, with annex. Signed at
Dacca May 28, 1976. Entered into force May 28,
1976.

Project agreement relating to support for the Pop-
ulation Control Program of Bangladesh, with an-
nexes. Signed at Dacca May 31, 1976. Entered
into force May 31, 1976.

Belgium

Procedures for mutual assistance in the administra-
tion of justice in connection with the Lockheed
Aircraft Corporation matter. Signed at Washing-
ton May 21, 1976. Entered into force May 21, 1976.

Canada

Agreement relating to the construction, operation,
and maintenance of a Loran-C station in the vicin-
ity of Williams Lake, British Columbia, with an-
nex. Effected by exchange of notes at Ottawa May
28 and June 3, 1976. Entered into force June 3,
1976.

Greece

Procedures for mutual assistance in the administra-
tion of justice in connection with the Lockheed
Aircraft Corporation matter. Signed at Washing-
ton May 20, 1976. Entered into force May 20, 1976.

Indonesia

Agreement amending the agreement for sales of
agricultural commodities of April 19, 1976. Ef-
fected by exchange of notes at Jakarta May 26
and 28, 1976. Entered into force May 28, 1976.

Ireland

Agreement relating to air passenger charter services.
Effected by exchange of notes at Dublin May 11
and 28, 1976. Entered into force May 28, 1976.

⁴ With declaration.

⁵ With statement.

⁶ For the Kingdom in Europe.

⁷ Applicable to Dominica, Saint Christopher, Nevis and Anguilla, Saint Vincent, Belize, Bermuda, British Virgin Islands, Hong Kong, Montserrat, Saint Helena and Dependencies, Seychelles, and Tuvalu.

July 5, 1976

Bulletin

39

### Panama

Agreement amending the loan agreement of May 6, 1969, as amended, relating to the Panama City water supply system. Signed at Panama June 2, 1976. Entered into force June 2, 1976.

### Syria

Agreement amending the agreement for sales of agricultural commodities of April 20, 1976. Effected by exchange of notes at Damascus June 2 and 3, 1976. Entered into force June 3, 1976.

### Tanzania

Agreement relating to the transfer of food grain to Tanzania to assist in alleviating the shortage caused by prolonged drought. Signed at Dar es Salaam April 13, 1976. Entered into force April 13, 1976.

### Tunisia

Agreement for sales of agricultural commodities. Signed at Tunis June 7, 1976. Entered into force June 7, 1976.

## PUBLICATIONS

### Department Releases General Index for 1776-1949 Treaty Compilation

Press release 167 dated April 9

The Department of State released on April 9 the "General Index" to its series "Treaties and Other International Agreements of the United States of America 1776-1949," compiled under the direction of Charles I. Bevans, formerly Assistant Legal Adviser for Treaty Affairs.

The 119-page index is volume 13 of the series. The first four volumes in the Bevans series, released in 1969 and 1970, contain the texts of multilateral treaties and other international agreements entered into by the United States from 1776 to 1950. Volumes 5 through 12, released 1971 to 1974, contain bilateral agreements for that period, grouped alphabetically by country. Agreements concluded since 1949 are not included, because they are available in the annual statutory volumes "United States Treaties and Other International Agreements."

Copies of volumes 1 through 13 of the Bevans series are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. Price (domestic postpaid): vol. 1, $8.50; vol. 2, $10.25; vol. 3, $11.75; vol. 4, $8.25; vol.

5, $9.75; vol. 6, $11.00; vol. 7, $11.00; vol. 8, $11.00; vol. 9, $11.00; vol. 10, $11.00; vol. 11, $14.35; vol. 12, $15.15; vol. 13, $4.60. Volume 13 is Department of State publication 8830 (Stock No. 044-0000-1326-6).

## GPO Sales Publications

Publications may be ordered by catalog or stock number from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. A 25-percent discount is made on orders for 100 or more copies of any one publication mailed to the same address. Remittances, payable to the Superintendent of Documents, must accompany orders. Prices shown below, which include domestic postage, are subject to change.

**Background Notes:** Short, factual summaries which describe the people, history, government, economy, and foreign relations of each country. Each contains a map, a list of principal government officials and U.S. diplomatic and consular officers, and a reading list. (A complete set of all Background Notes currently in stock—at least 140—$21.80; 1-year subscription service for approximately 77 updated or new Notes—$23.10; plastic binder—$1.50.) Single copies of those listed below are available at 35¢ each.

<table><tr><td>Bahamas</td><td>Cat. No. S1.123:B14<br>Pub. 8329</td><td>4 pp.</td></tr><tr><td>Netherlands</td><td>Cat. No. S1.123:N38<br>Pub. 7960</td><td>7 pp.</td></tr><tr><td>Norway</td><td>Cat. No. S1.123:N83<br>Pub. 8228</td><td>4 pp.</td></tr><tr><td>Upper Volta</td><td>Cat. No. S1.123:UP6V<br>Pub. 8201</td><td>4 pp.</td></tr><tr><td>Zambia</td><td>Cat. No. S1.123:Z1<br>Pub. 7841</td><td>6 pp.</td></tr></table>

**World Military Expenditures and Arms Transfers 1965-1974.** This report, the eighth in a series, provides worldwide statistical information on national military spending and armed forces, international transfers of arms, and other comparative data. Pub. 84. U.S. Arms Control and Disarmament Agency. 76 pp. $1.80. (Stock No. 002-000-00054-7).

**Fisheries.** Agreement with the Union of Soviet Socialist Republics extending the agreements of February 21, 1973, as extended. TIAS 8150. 5 pp. 50¢. (Cat. No. S9.10:8150).

**Frequency Modulation Broadcasting.** Agreement with Mexico amending the agreement of November 9, 1972. TIAS 8152. 5 pp. 50¢. (Cat. No. S9.10:8152).

**Air Transport Services.** Agreement with Malaysia amending the agreement of February 2, 1970. TIAS 8157. 5 pp. 35¢. (Cat. No. S9.10:8157).

**Trade Relations.** Agreement with the Socialist Republic of Romania. TIAS 8159. 43 pp. 75¢. (Cat. No. S9.10:8159).

40

Department of State Bulletin

["INDEX July 5, 1976 Vol. LXXV, No. 1932", "Aviation. U.S. and U.K. Reach Understanding on Acceptance of Air Charters . . . . . . . . . . . . . . . . .

N

'IN,
the
of
and
ment
s in
and

acted
issued
part-
asses,
ident
other
all as
s of
ctions
on is
inter-
the
me a
inter-

nt of
s, and
ld of
listed.

Secretary Kissinger Reports to Congress on His Visits
to Latin America, Western Europe, and Africa

*Statement by Secretary Kissinger¹*

I am happy to be able to report to this
committee on our foreign policy with regard
to three important areas which I have
recently visited—Latin America, Western
Europe, and Africa.

I believe that our relations with Latin America and with Western Europe are stronger and more promising than they have been in a decade. In Africa we have responded to a dangerously deteriorating situation with a policy that offers hope for southern Africa to undergo peaceful change with justice without submitting to external intervention and opportunities for progress in the rest of Africa without following radical doctrines.

Latin America

Let me take up with you our policy toward
each of these areas.

In March, I reported to you on the vast
changes evident to me during my trip to
Latin America in February. These changes
are opening the way to a new constructive
relationship between the United States and
Latin America. The quality of that relation-
ship was evident at the meeting of the OAS
General Assembly in Santiago, from which
I have just returned. The atmosphere—of
mutual respect and perceived common in-

terest—was better at the 1976 OAS General
Assembly than at any other inter-American
meeting I have ever attended.

Ours is a special relationship in this hemi-
sphere. The unique experience we share in
the Americas—the finding and opening of
new continents, the forging of nations free
from colonial domination, the shared human
and moral principles of the New World—
creates special ties for the United States and
Latin America.

As in all families, there are periods of
creativity and times of stress. Ours is no
exception. The United States has passed
through a variety of phases in its relation-
ship to Latin America. Not all have been pro-
ductive in recent years. Sometimes, when we
were active, when we attempted to organize
massive transfers of resources to meet Latin
American development needs directly, we
were seen as attempting to dominate the
hemisphere. When our policies were other-
wise—when we were less involved in Latin
American problems and more inclined to let
Latin American nations work out their own
solutions alone—we were looked upon as
neglecting our obligations.

The 1930's, the 1940's, and even the 1950's
were decades in which this nation indulged
in the pretense of tutelage. In the 1960's
the Alliance for Progress rallied the energies
and enthusiasms of people throughout the
Americas to the development effort. But by
1969 its promises had begun to fade.

Thus, even as Latin America began to
realize its own maturity and experience a

¹ Submitted to the House Committee on International Relations on June 17 (text from press release 306). The complete transcript will be published by the committee and will be available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

July 12, 1976

[LC]

41

period of massive economic growth—and with it greater self-respect—the United States moved into a period of lower profile, which we maintained until the inauguration of the new dialogue in 1974. That period drew to a close with the meeting at Tlatelolco, in Mexico [February 18-23, 1974], in which we began a process of dialogue with the hemisphere once again.

At the outset, admittedly, the dialogue had a character of inquiring into what the United States could do for Latin America. But it became obvious that, as a result of the major changes and considerable progress in Latin America during the 1960's and early 1970's, we were now able to deal with the major nations of Latin America with a new mutuality of respect and equality of sovereignty quite impossible 20 years ago or even 10.

In the last two years, we have built steadily on this new relationship. We have taken advantage of it to put forward new initiatives in the political and the economic areas which we could not have considered a decade or more ago. The culmination of this new policy effort was the meeting at Santiago last week.

The constructive attitude in Santiago and the remarkably good tone to our relationships throughout the hemisphere are attributable in great part to three factors:

- The United States, since the inauguration of the new dialogue early in 1974, is again active as an equal partner in inter-American councils;

- We have a coherent policy that addresses the entire catalogue of hemispheric issues; and

- We have a vision of the future of our relationship.

It is that, I believe, which has reassured Latin America that the political relationship with the United States—the basic solidarity of the Western Hemisphere—is again increasingly vital.

With our political and moral relationship once again sound, we have a basis for co-operation with Latin America in the area

of most pressing concern, that of economic development.

The countries of Latin America are among the most developed of the developing nations and have been growing rapidly. Latin America has quintupled its collective gross product since 1950. At this rate, in 10 years Latin America will have attained the economic strength which Europe had in 1960. Its economies, furthermore, are increasingly important in world commodity, mineral, and energy markets and in trade in manufactured goods. Success in the struggle for development of the poorer countries of the world, when it comes, will come first in Latin America. For this reason, we must focus our attention and our energies there.

To address the changing nature of our relationship with Latin America and to deal with the expanding range of our common concerns, I set forth in Latin America last February six elements of our policy. I said the United States would:

- Take special cognizance of the distinctive requirements of the more industrialized economies of Latin America, and of the region as a whole, in the context of our efforts to help shape a more equitable international order;

- Assist directly the neediest nations in the hemisphere afflicted by poverty and natural disaster;

- Support Latin American regional and subregional efforts to organize for cooperation and integration;

- Negotiate on the basis of parity and dignity our specific differences with each and every state, to solve problems before they become conflicts;

- Enforce our commitment to collective security and to maintain regional integrity against attempts to undermine solidarity, threaten independence, or export violence; and

- Work to modernize the inter-American system to respond to the needs of our times and give direction to our common action.

Since February, in furtherance of these objectives, the United States has introduced

42

Department of State Bulletin

nique
ations
inter-
years
eco-
1960.
gly
and
fac-
des
the
latin
focus
our
ideal
non
last
said
active
ized
re-
ports
onal
s in
and
and
pera-
and
and
they
ective
grievance
ority,
ence;
rican
cimes
n.
these
luced

trade, investment, and technology proposals of special relevance to this hemisphere at CIEC [Conference on International Economic Cooperation] in Paris and at UNCTAD IV [fourth ministerial meeting of the U.N. Conference on Trade and Development] in Nairobi. We responded to the efforts of the Guatemalan people to recover from the earthquake that devastated their land. We have provided fresh support to subregional cooperation in Central America and are exploring ways of relating more effectively to the Andean Pact. And at last week's General Assembly of the Organization of American States at Santiago, we advanced our common interests in three important areas: cooperation for development, reform of the inter-American system, and human rights.

To speed cooperation for development in the Americas, we stressed three major topics for action: commodities, trade, and technology.

The economic aspirations of most countries in Latin America depend upon stable conditions for the production and marketing of primary commodities. At Santiago we proposed a three-point program designed to improve regional consultations on commodities markets; derive greater hemispheric benefits from global commodity arrangements; and improve resource financing, either on a global or regional basis.

To expand trade opportunities and capabilities, we offered proposals to help developing nations expand and diversify exports of manufactured and semiprocessed goods, promote the hemisphere's trade position through the Geneva negotiations, and support needed regional and subregional economic integration.

And we proposed a number of new ideas to stimulate the development, acquisition, and utilization of technology in the modernization of the hemisphere.

To improve the inter-American system, we circulated proposals—the most far-reaching the United States has ever put forward—which would simplify the organization by strengthening the foreign ministers meetings in the periodic General Assemblies,

eliminate the standing councils, open the OAS to wider membership in the hemisphere—particularly the new states of the Caribbean—and increase the Latins' share of the budget. Such steps, we believe, could lead to a leaner and more flexible and responsive organization which could better promote the mutual security, economic progress, and human rights of the Americas.

And on the centrally important issue of human rights, I addressed the special responsibility of our nations to preserve, cherish, and defend fundamental human values—for if such values cannot be preserved, cherished, and defended in this hemisphere, where the rights and the promise of the individual have played such a historic role, then they are in jeopardy everywhere.

At Santiago, the United States reaffirmed our unequivocal commitment to the American Declaration of the Rights and Duties of Man. We endorsed the reports presented there by the Inter-American Human Rights Commission: its annual report, which cites the rise of violence and terror in many nations of Latin America, its report on Chile, and its report—submitted too late for official consideration by the OAS Assembly—concerning the inhuman treatment of political prisoners in Cuba and the refusal of Cuba to cooperate with the Commission.

The United States emphasized our belief that the protection of human rights in the hemisphere is an obligation of every nation and not simply of particular nations whose practices have come to public attention or whose ideology—on whichever side of the political spectrum—is unpopular.

The contrast between the respective treatment of the Human Rights Commission's work by the Governments of Chile and Cuba demonstrates the importance of this principle. The Government of Chile cooperated with the Commission; the Government of Cuba did not. The Government of Chile did nothing to prevent widespread publication in that country of information about the Commission's report and about the OAS discussion of the issue. Needless to say, there

July 12, 1976

Bulletin

has been nothing comparable in the govern-
ment-controlled media in Cuba. Most impor-
tant, the Commission noted a quantitative
improvement in the situation in Chile since
its last report.

For these reasons, I believe we can best
enhance the prospects for further human
rights progress in Chile by continuing a bal-
anced policy by working in the area of hu-
man rights and by assisting that government
to meet the economic problems before it. We
have made it clear to the Government of
Chile that the condition of human rights in
that country impairs our relationship. Ac-
tions which would further undermine our
relationship could eliminate the practical
possibilities for betterment of economic con-
ditions.

Mr. Chairman, our efforts in Latin America over the past several months have considerably advanced our practical progress and provided a firm foundation of policy for the years ahead. We have moved into a new phase of profound interest, active initiatives, and comprehensive proposals for altering the inter-American relationship, a phase which is more compatible with the new cooperative spirit in the hemisphere.

We have come to the end of a critical era
and are marking the beginning of a new one.
The United States can now deal with Latin
America in a new spirit. We need not hold
back on major initiatives for fear of inspir-
ing old notions of paternalism. With con-
sultation and cooperation, our hopes of
meeting the challenges of economic and so-
cial progress in an age of interdependence
and of building a sound and beneficial rela-
tionship between developed and developing
nations are brightest and most promising
here in this hemisphere.

Europe

Let me turn briefly now to Europe.

In late May I attended the NATO Minis-
ters' meeting in Oslo and held a series of
meetings with European leaders.

I do not need to rehearse at length to this
committee why the countries of Western
Europe are important to the United States

and to all our international endeavors.
Throughout the postwar period we have
recognized that the security of Western
Europe is inseparable from our own. Our
economies are inextricably linked; we have
had repeated demonstrations that economic
performance on one side of the Atlantic will
in time affect both. Most of all, these are the
peoples who share our most fundamental
cultural and political heritage and its values,
and they share our vision of the kind of
world we want to live in.

While cooperating in a defensive alliance
which for durability and vitality is probably
unique in the history of sovereign states, the
Atlantic nations also have been coordinating
efforts gradually to improve relations with
regimes in Eastern Europe whose values and
aims are very different from our own. We
have recognized from the outset that this
difficult undertaking could only proceed from
a basis of Western strength and cohesion.

Now, with the growth of Soviet military
power, with a proliferation of potentially
explosive regional tensions, with the emer-
gence of new power centers based on control
of vital economic resources, with growing de-
mands for redistribution of the world's
wealth, and with common economic and so-
cial problems ahead, it is more important
than ever that our consultations with our
closest allies be constant and our cooperation
constant.

This does not mean that the North Atlan-
tic states will see all problems in identical
ways or always adopt identical policies. It
does mean that only by understanding one
another's interests and perspectives can we
maintain that essential harmony in our poli-
cies which will enable us to deal construc-
tively both with the Communist world and
with the demands of the developing states.

Three years ago, the United States called
for a reaffirmation of European-American
solidarity. We believed that it was impera-
tive to reaffirm the central place of Western
unity in all that we were about to do.

Over the course of these last few years, I
believe that the West has achieved an ex-
traordinary cohesion and resolve. It is a sign
of strength that doctrinal disputes over re-

44

Department of State Bulletin

Theresa Cimino

From: Stephen Donehoo [sdonehoo@mclarty.com]
Sent: Tuesday, September 03, 2002 5:40 PM
To: Theresa Cimino (E-mail)
Subject: Argentina's 'dirty war' hounding Kissinger

Theresa,

Here is the Miami Herald article, FYI.

Stephen

http://www.miami.com/mld/miami/news/nation/3966967.htm

Posted on Fri, Aug. 30, 2002

Argentina's 'dirty war' hounding Kissinger
Documents revive debate on U.S. role

BY TIM JOHNSON

tjohnson@herald.com <mailto:tjohnson@herald.com>

WASHINGTON - For all his renown as one of the world's leading voices on international affairs, former Secretary of State Henry Kissinger's twilight years are not passing so easily. At age 79, his legacy is the subject of scrutiny, protests, international legal disputes and even a federal lawsuit. Now, there are even more questions, thanks to the release by the State Department earlier this month of 4,667 official U.S. documents relating to the "dirty war" in Argentina from 1976 until 1983 in which military death squads killed thousands of suspected leftists.

The new batch of declassified cables has revived debate that surged last year with publication of The Trial of Henry Kissinger, a polemical book by British writer Christopher Hitchens, who suggested that the 1973 Nobel Peace Prize laureate should be tried for war crimes.

The newly released documents reveal that Argentine military officers believed they had the green light from Washington -- and perhaps Kissinger -- to carry out the brutal campaign.

The hounding of Henry Kissinger is the result not only of declassified U.S. documents but also global trends empowering judges to reach across frontiers, a desire by aggrieved relatives to seek justice, and perhaps a dose of publicity-seeking by his many ideological opponents. And it has forced Kissinger to watch his step abroad out of concern that a judge might order his arrest:

* In mid-March, Kissinger canceled a trip to Brazil amid reports a judge might detain him.

* In April, protesters taunted him outside London's Royal Albert Hall.

* A month later, police arrived at his Paris hotel to serve him with questions from a French judge. Chile's Supreme Court, meanwhile, also wants answers from Kissinger about a 1973 coup.

"His movements are somewhat restricted because of the legal actions being taken against him," said Riordan Roett, director of Western Hemisphere studies at the School of Advanced International Studies at Johns Hopkins University.

Sir:

This came from Stephen Donehoo in McLarty's office. It has been sent to Mr. Rogers for his reference.
-- tc

SUGGESTIONS REJECTED

Kissinger's office in New York City referred calls to William Rogers, his lawyer, who rejected any suggestion that Kissinger gave a green light to human rights abuses in the Southern Cone countries. Rogers said "a cabal of Hitchens-minded people" is attacking Kissinger to "create some notoriety for themselves."

"It's show business. This stuff is utterly tendentious. There has never been a credible objective analysis that he has committed an international crime," Rogers said.

Rogers, who served as assistant secretary of state for Latin America under Kissinger, dismissed suggestions from Kissinger critics that he supported efforts to crush armed leftists in the Southern Cone region as part of the great battle against the Soviet Union. In both Chile and Argentina, Soviet- or Cuban-backed guerrillas carried out rebel campaigns.

"I don't think this [region] was terribly important in the Cold War context. As Henry once said, 'Chile is a dagger pointed straight at the heart of Antarctica, Rogers said.

The newly released documents contain a handful of accounts of how Argentine military officers interpreted Kissinger's views of their campaign to crush leftist subversives.

Argentina's military, which held power from 1976 until 1983, snatched between 9,000 and 30,000 people off the streets, leaving them "missing" and inflicting scars that still affect the nation.

One document from Oct. 19, 1976, noted that Argentina's foreign minister returned from Washington "in a state of jubilation," convinced after meeting Kissinger, who was then secretary of state in the Ford administration, that U.S. officials simply wanted the Argentine terror campaign over quickly. The impression left the Argentine official "euphoric," the cable said.

Kissinger left his post in early 1977, when President Carter came to office and declared that U.S. relations with foreign partners would depend on their human rights record.

Even out of office, Kissinger had an impact in Argentina, the diplomatic cables show. As the Carter administration sharpened its attack on Argentina's military junta for its atrocities, Kissinger traveled to Buenos Aires as "the guest" of the dictator, Gen. Jorge Rafael Videla, to view the 1978 World Cup soccer tournament, the U.S. ambassador wrote in a June 1978 cable.

According to the cable by Raul Castro, a former governor of Arizona who was then the U.S. ambassador, Kissinger held an "off the cuff talk" at one point with prominent foreign affairs experts.

ENVOY CONCERNED

"He explained his opinion [that] GOA [government of Argentina] had done an outstanding job in wiping out terrorist forces. But also cautioned that methods used in fighting terrorism must not be perpetuated," the cable said.

"My only concern," Ambassador Castro concluded, 'is that Kissinger's repeated high praise for Argentina's action in wiping out terrorism and his stress on the importance of Argentina may have gone to some considerable extent to his hosts' heads.

"Despite his disclaimers that the methods used in fighting terrorism must not be perpetuated, there is some danger that Argentines may use Kissinger's

laudatory statements as justification for hardening their human rights
stance."

The latest round of declassification has renewed bitter feelings among some
retired senior State Department officials with long-held beliefs that
Kissinger signaled to the Argentine military that he did not disapprove of
their repression, as long as it was done speedily.

"I think he was complicit," said Patricia Derian, who was an assistant secretary of state for human rights under President Carter. "He was in a position to influence them greatly -- both in and out of office.

Mistreatment of citizens by a government was given the nod."

Rogers, the Kissinger attorney, called the suggestion of complicity
"appalling" and inaccurate. "What was done down there was done by the
Argentines. We weren't controlling it."

In his speech in London on April 24, Kissinger referred obliquely to the
notion that he might be obligated to respond some day in a court of law for
his foreign policy record.

"No one can say that he served in an administration that did not make mistakes," Kissinger said. "The issue is whether 30 years after the event, courts are the appropriate means by which determination is made."

Kissinger is also facing a passel of legal troubles related to the 1970-1973
rule in Chile of Salvador Allende, the first socialist president elected
there in a popular vote, and U.S. support for an army coup against him that
installed a military dictatorship that ruled until 1990.

LAWSUIT FILED

Last Sept. 10, two surviving sons of a Chilean military commander slain in
1970 filed a federal lawsuit in Washington seeking $3 million from Kissinger
and then CIA Director Richard Helms for allegedly supporting the military
squad that carried out the assassination.

The commander, Gen. Rene Schneider, was no friend of Allende but adamantly
opposed a U.S.-supported military revolt to block his ascension to power.

Schneider was shot on his way to work on Oct. 22, 1970, two days before
Congress was to confirm Allende in the presidency.

An attorney for Schneider's sons, René and Raúl, said the suit is based on
declassified U.S. documents released over the past two years that identify
Kissinger as coordinator of a "Track II" plan in 1970 that gave $35,000 to
the squad after it carried off the Schneider slaying.

"Our case shows, document by document, that he was involved in great detail
in supporting the people who killed Gen. Schneider, and then paid them
off," attorney Michael Tigar said.

In a separate case, the Chilean Supreme Court has sent a series of questions
to the U.S. State Department, in what is called letters rogatory, seeking
responses from Kissinger about the death of Charles Horman, an American
killed in the days following the 1973 coup that toppled Allende. The
U.S.-supported coup brought Gen. Augusto Pinochet to power.

The State Department said it responded to the Chileans last week but
declined to disclose the content of the response.

In still a third matter, a criminal judge in Chile said he might investigate
Kissinger in relation to Operation Condor, in which military dictatorships
in the Southern Cone exchanged information to help each other kidnap and
kill hundreds of political opponents.

If declassified documents have caused problems for Kissinger, it may not be
over. When Kissinger left office in early 1977, he took with him tens of

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[L.C.]

MAR 26 2001

Coalition for
an International
Criminal Court

c/o WFM-IGP 777 UN Plaza, Twelfth Floor, New York, NY 10017 T: +1 212
687 2176 F: +1 212 599 1332 email: cicclegal@igc.org

Fax Transmission

<table><tr><td>TO:</td><td>Henry Kissinger<br/>Kissinger & Associates</td></tr><tr><td>FROM:</td><td>Jennifer Schense</td></tr><tr><td>FAX NUMBER:</td><td>759-0042</td></tr><tr><td>DATE:</td><td>March 23, 2001</td></tr><tr><td>PAGES (incl. cover sheet):</td><td>42</td></tr></table>

Dear Mr. Kissinger:

I spoke with Judge Gabrielle Kirk McDonald this afternoon and she asked me to fax you some materials on the ICC, in particular with reference to the functions of the Office of the Prosecutor.

What I am sending you is as follows:

* 3 documents produced by the Washington Working Group for the ICC:

1. Getting a case to the ICC (3 pages)

2. Safeguards for US Personnel under the Rome Treaty for the ICC (3 pages)

3. The ICC and US National Security (2 pages)

* 1 document produced by the CICC Secretariat:

1. Protections against unwarranted prosecutions in the Rome Statute (3 pages)

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# GETTING A CASE TO THE ICC

From: *The United States and the International Criminal Court*, Sarah Sewall and Carl Kaysen eds., (Cambridge, MA: American Academy of Arts and Sciences, 2000)

## Step I: Ratification of the ICC Statute

The Statute must be ratified by 60 States to take effect and establish the ICC (Article 126(1))

The ICC will have jurisdiction only over crimes committed after the Statute enters into effect. (Article 11(1))

## Step II: Preconditions to the exercise of the ICC's jurisdiction

Before the ICC can act its jurisdiction must be accepted by either:
(Article 12(2))

The Territorial State

(where crime was allegedly committed)

The State of Nationality of the Accused

(The US in the case of US nationals)

"A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5." Article 12(1)

When necessary, other states may also accept ICC jurisdiction by declaration (Article 12(3))

## Step III: Initiation of investigations and prosecutions

Who can initiate investigations leading to possible ICC prosecutions? Three possibilities under Article 13:

Referral of a situation by
a State-Party

Referral of a situation by the
Security Council

Initiation of an investigation by
the Prosecutor *proprio motu*
(on his own authority)

A basic right of a parties
to the Statute

No need for precondition in
Step II to be met in this case

Based on the special role of the
Council under the UN Charter
in maintaining international
peace and security

Could involve the Security
Council in enforcing the ICC's
requests for cooperation from
states
(Article 87(7))

Special limits apply to the Prosecutor's initiation of an investigation *proprio motu* (Article 15)

Pre-trial Chamber of the ICC must approve
any investigation initiated by the Prosecutor
by finding:

"reasonable basis to proceed with an
investigation"

that the case "appears to fall within the
jurisdiction" of the ICC

## Step IV: Admissibility/Complementarity

The deference of the ICC to the jurisdiction of national courts

The most general and effective jurisdictional limit on the ICC lies in its relationship to national courts

The jurisdiction of the ICC "shall be complementary to national criminal jurisdictions." (Article 1)

A threshold of "admissibility" applies to ensure that the ICC will have jurisdiction only in exceptional cases, as a sort of "safety net" to prevent impunity for serious international crimes

This provides the best assurance for the US that US nationals are unlikely ever to be tried by the ICC unless the US government decides to allow it

The Standard of Admissibility (Article 17)

© 1999 Bartram S. Brown
Chicago-Kent College of Law

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The ICC shall not proceed with
any case if:

(a) It is being investigated or
prosecuted by a State which
has jurisdiction

(b) It has been investigated by
a State which has jurisdiction
over it and the State has
decided not to prosecute the
person concerned

(c) The person has already
been tried for the same conduct

(d) The case is not of sufficient
gravity to justify further
action by the Court

The only exception to (a) and (b) is if:

the state concerned " is unwilling or unable genuinely to carry out
the investigation or prosecution"

Unwillingness standard requires "one of more" of the following:

national proceedings or decision made for the purpose of shielding
the person from criminal responsibility Article 17(2)(a)

unjustified delay in the proceedings is inconsistent with an intent
to bring the person concerned to justice Article 17(2)(b)

proceedings not being conducted independently or impartially, and
conducted in a manner which, in the circumstances, is inconsistent with
an intent to bring the person concerned to justice Article 17(2)(c)

Inability standard considers whether:

"due to a total or substantial collapse or unavailability of its
national judicial system, the State is unable to obtain the accused or
the necessary evidence and testimony or otherwise unable to carry out
its proceedings Article 17(3)

Admissibility can be challenged at various stages, but only once by any person or state (Article 19(4))

Preliminary Ruling on Admissibility at the Initiation of a Case

Any state with jurisdiction over the case can assert its superior right to exercise that
jurisdiction (Article 18)

the ICC Prosecutor must notify all states with jurisdiction of any investigations commenced

States have one month to notify Prosecutor of their own investigation of the persons concerned

ICC Prosecutor must defer to any State's investigations, unless a Pre-Trial Chamber decides to
authorize the investigation (i.e. finds the case to be admissible)

The State may appeal the Pre-Trial Chamber's decision

Other challenges to the admissibility of a case (Article 19)

Admissibility may be determined by the ICC on its own motion, or

An accused may bring a challenge, or

A state with jurisdiction, may also bring a challenge on the ground it is investigating or prosecuting
the case, or has already done so

A state whose acceptance of jurisdiction is required, as a precondition of the exercise of jurisdiction
under Article 12

Step V: Possibility of Deferral Pursuant to Decision of the Security Council

"No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions."
(Article 16)

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Step VI: Investigation/Evaluation by the Prosecutor

After the referral of a situation by a State Party or by the Security Council, the Prosecutor evaluates the information made available to him or her

Prosecutor makes a preliminary decision whether to proceed with the investigation based on whether:
(Article 53)

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor decides not to proceed the referring State Party or the Security Council if it referred the case is informed along with the Pre-Trial Chamber

Decision there is no reasonable basis to proceed

Referring Party, and Pre-Trial Chamber are notified

Pre-Trial Chamber may review the decision at the
request of the referring party or on its own initiative

Process may end here

Otherwise Prosecutor proceeds to investigate

Collects evidence, seeks testimony, seeks cooperation of states and international organizations

Is to respect rights of persons during the investigations (Article 55)

Step VII: Pre-Trial Chamber decides upon the issuance of orders and warrants requested by Prosecutor for purposes of investigation (Articles 57-58)

Summons to appear, measures to preserve evidence, arrest warrants

Article 58 sets out the standards for issuance of an arrest warrant

Ideally the arrest warrant leads either to:

arrest by the custodial state and surrender to the ICC, or

voluntary appearance before the ICC of the person whose arrest is sought

Step VIII: Confirmation of charges before trial (Article 61)

Within a reasonable time after the person's surrender or voluntary appearance before the Court

or

in the absence of the person charged if the presence of that person cannot be secured

After informing the person charged, and/or his or her counsel, of all charges and evidence, The Pre-Trial Chamber holds a hearing to determine whether to confirm the charges

Document setting out the charges must be provided to the person and his or her counsel

At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged.

Pre-Trial Chamber confirms or dismisses each charge

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# SAFEGUARDS FOR U.S. PERSONNEL UNDER THE ROME TREATY FOR THE INTERNATIONAL CRIMINAL COURT

## Safeguards Available without Ratification

### Complementarity

The International Criminal Court (ICC) will be "complementary" to national legal systems, meaning that it must defer to national courts' jurisdiction (Articles 17, 18, 19). The principle of ICC deferral to national criminal proceedings is embodied in an elaborate set of procedural requirements limiting the ICC Prosecutor's authority to proceed with a case. The Court may not proceed with any case that is genuinely being investigated or prosecuted by a state which has jurisdiction, or already has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, or the person has already been tried for the same offense.

The ICC Prosecutor must notify all states with jurisdiction of any investigations commenced. The states have one month to notify Prosecutor of their own investigation. The ICC Prosecutor must defer to any state's investigations, including that of a nonparty state. Once a state invokes complementarity, a decision to proceed with a case may be made only by a decision by two of three judges on a Pre-Trial Chamber. However, this decision may be appealed by the investigating state to the Appeals chamber on an expedited basis, where a majority of five judges will decide the matter.

According to Judge Robinson O. Everett of the U.S. Court of Military Appeals, "...the existing provisions of the Uniform Code of Military Justice and the War Crimes Act [of 1996] have already created jurisdiction over war crimes on the part of U.S. courts-martial..." He continues, "Therefore, the principle of complementarity set out in the ICC statute would provide the United States a basis for maintaining that American servicemembers accused of crimes prohibited by the Statute should be tried by a U.S. courts-martial, rather than by the ICC."

### Negotiation of Article 98(2) Agreements

The United States can negotiate international agreements that would prevent the surrender of any American citizen to the ICC (Article 98(2)). Existing Status of Forces Agreements already constitute de facto Article 98(2) agreements for U.S. personnel in SOFA jurisdictions.

### Security Council Power to Prevent ICC Action

The Security Council can pass a resolution to prevent or stop the ICC from investigating and prosecuting crimes for one year, and can renew it indefinitely. (Article 16)

### High Thresholds for ICC Crimes

Any crime committed by an American would have to constitute a core crime under the ICC (genocide, crimes against humanity and war crimes) and would have to meet strict preconditions for investigation and prosecution. All three require some sort of plan, policy or strategy to commit the crimes, and the crimes must be committed as part of pattern of such crimes. These thresholds are so high that the United States and its official personnel could never, under US law, plan and engage in such extraordinarily atrocious and systematic crimes.

### Criteria the Prosecutor Must Consider or Meet before Initiating an Investigation

Before initiating an investigation, the Prosecutor must consider whether the case is inadmissible under the principle of complementarity or other parts of Article 17; whether the information available provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; and

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whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice (the last factor is effective only if confirmed by the Pre-Trial Chamber). Before the Prosecutor can begin a formal investigation, the case must be submitted to a Pre-Trial Chamber which will determine whether she/he may proceed.

## Protection from Politically-Motivated Charges by Non-States Parties

States that have not ratified the Treaty may accept the jurisdiction of the Court by "declaration" under Article 12. U.S. negotiators were worried that this could leave the door open for a hostile state to advance politically-motivated or frivolous charges against a U.S. official or servicemember through the ICC. Therefore, during subsequent negotiations, U.S. delegates corrected this potential problem through Rule 44(2). This rule requires that any nonparty state invoking an Article 12 procedure would expose its own conduct to the full scrutiny of the ICC, thus discouraging politically-motivated charges and efforts to hold only one state accountable for alleged crimes within a situation.

## Rights of Suspects

Suspects are accorded a comprehensive set of due process rights (Article 55 and the Rules of Procedure and Evidence). These rights include the presumption of innocence (Art. 66); a speedy and public trial (Arts. 67(1), 67(1)(c)); the assistance of counsel (Arts. 67(1)(b), (d)); the right to remain silent (Art. 67(1)(g)); the privilege against self-incrimination (Arts. 54(1)(a), 67(1)(g)); the right to written statement of charges (Art. 61(3)); the right to examine or have examined adverse witnesses (Art. 67(1)(e)); the right to compulsory process to obtain witnesses (Art. 67(1)(e)); a prohibition against *ex post facto* crimes (Art. 22); the protection against double jeopardy (Art. 20); the freedom from warrantless arrest and searches (Arts. 57 bis (3), (58)); the right to be present at trial (Art. 63); the exclusion of illegally obtained evidence (Art. 69(7)); and a prohibition against trials in absentia (Art. 63).

## Pre-Trial Chamber Protection of Suspect's Rights

The Pre-Trial Chamber may issue orders to assist a suspect in the preparation of his or her defense (Article 57(3)) and shall periodically review its ruling on the detention of a suspect and ensure that a suspect is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such a delay occurs, the Court shall consider releasing the suspect, with or without conditions (Article 60(4)).

## Protection of National Security Information

The United States has full power to withhold information or documents from the Court if such disclosure would, in the opinion of the U.S., prejudice its national security interests (Article 72). If a State Party of the United Nations is requested by the Court to provide documents or information in its custody which were disclosed in a confidence to it by the United States, the State Party shall seek the consent of the U.S. as a pre-condition to any disclosure. If the U.S. refuses to consent, there is no disclosure (Article 73 and the UN-ICC Relationship Agreement).

## Diplomatic Immunity

The Court may not proceed with a request for surrender or assistance which would require that a State violate its obligations on diplomatic immunity under international law. U.S. diplomats or other official personnel enjoying diplomatic immunity in any jurisdiction thus would be shielded from a surrender request from the ICC provided such immunity is consistent with international law (Article 98(1)).

## Rule of Speciality

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A suspect surrendered to the Court cannot be proceeded against, punished, or detained for any conduct committed prior to surrender other than the conduct which forms the basis of the crimes for which that person has been surrendered. Thus the Court cannot prosecute the suspect for conduct that falls outside the conduct upon which the indictment is framed (Article 101).

## High Standards for the Selection of Judges

According to the Statute, ICC Judges will be elected by a two-thirds majority of countries that have ratified the statute, in the Assembly of States Parties. They must be persons of high moral character, impartiality, and integrity who possess qualifications required for appointment to their highest national judicial offices, and will be experts in criminal law and procedure or experts in international law. No two judges may be nationals of the same state. Judges may be removed by a two-thirds vote of the Assembly of States Parties.

## Safeguards Available with Ratification of the Treaty

### Non-Exposure to War Crime Charges

The United States can "opt out" of any war crimes exposure before the ICC during the initial seven years of U.S. participation in the ICC (Article 124). Under Article 124, the U.S. government may opt out of any obligations to cooperate with the court concerning war crimes committed by its nationals or on its territory. However, this provision does not provide any exemption for individual Americans who might otherwise be appropriately tried by the Court for war crimes.

### Non-Exposure to the Crime of Aggression and Other New Crimes

The United States can "opt out" forever of any amendment that would add an actionable crime of aggression or any other new crime to the Rome Treaty as long as the United States becomes a party to the Rome Treat before the seven-year review conference (Article 121(5)) provided by the Statute for the consideration of new amendments.

### U.S. Influence in the Assembly of States Parties

The Assembly of States Parties oversees and determines the budget of the ICC each year and the election of judges and prosecutors. Only as a State Party would the United States be entitled to nominate candidates for ICC judges and vote for the election of all judges. Only nationals of States Parties may be elected judges, so a U.S. national could only become a judge if the United States is a State Party. Only as a State Party would the United States be entitled to vote for the Prosecutor and Deputy Prosecutors (Article 36(4)). As a State Party, the United States would be obligated to pay a proportionate share of the ICC's costs, which would make the United States the most influential government in the Assembly of States Parties.

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THE INTERNATIONAL CRIMINAL COURT
AND U.S. NATIONAL SECURITY

The U.S. is at a critical point in policy-making on the International Criminal Court (ICC). As a signatory to the treaty, the U.S. is bound not to work against the purposes and objectives of the Treaty - as noted by Secretary of State Powell in his confirmation testimony. The court will most likely come into existence in 2002, so the Bush Administration and Congress are facing important decisions about U.S. policy toward the Court. The following points address some of its critics' most common concerns.

Concern: The ICC is "significantly flawed" and the U.S. should seek a full exemption from ICC jurisdiction at the negotiations.

* The only outstanding "flaw" in the treaty cited by the Clinton Administration was the courts' jurisdiction over individuals from countries that have not ratified the Treaty. However, U.S. citizens and soldiers who commit crimes abroad are currently subject to the jurisdiction of the territorial state in which the crime is committed. The ICC will have jurisdiction over the personnel of non-Party States only when these individuals commit crimes under the jurisdiction of the ICC in the territory of a State Party, or in the territory of a state that has chosen to accept the jurisdiction of the ICC. Therefore, until the U.S. ratifies the Treaty, the court can only try Americans if they commit crimes in countries that have accepted the court's jurisdiction.

* A report by the non-partisan American Academy of Arts and Sciences states, "Most ICC signatories reportedly see little reason to create such an exemption, which appears designed to reward non-signatories and undermine the concept that all individuals are subject to the relevant international law. It appears highly unlikely that such a "fix" will be attained..."

* U.S. efforts for exemption are alienating our closest friends and allies, for whom the creation of a fair and effective ICC is a high foreign policy priority. During the November 2000 PrepCom, the head of the German delegation announced the German ratification of the treaty with a unanimous vote in the Bundestag. He said, "In the Bundestag debate on 27 October representatives of all parties taking the floor again emphasized the necessity to fully safeguard the integrity of the Rome Statute. The German Government was warned not to admit any changes of or exemptions from the Statute, in particular related to the jurisdiction of the Court and to cooperation with the Court. On the German side, we are confident that together, the members of the European Union, the like-minded States and all the 116 Signatory States will not fail to fully safeguard the integrity of the Statute."

* While efforts at exemption will not succeed, it is imperative that the U.S. has a negotiator at the table. Many important decisions on financial regulations and rules, privileges and immunities, and other aspects of the court will be made in the coming Preparatory Commission sessions. It is in U.S. national security interests to remain positively engaged in the process of creating the court.

Concern: U.S. military and civilian personnel and officials may be subject to frivolous or politically-motivated charges by the ICC. With hundreds of thousands of soldiers deployed around the world, the U.S. would be unjustly targeted.

* The ICC must defer to national courts under the principle of complementarity. The court may not proceed with any case that is genuinely being investigated or prosecuted by a state which has jurisdiction, or already has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, or the person has already been tried for the same conduct.

* The ICC Statute has "Made in the USA" stamped all over it. Subsequent to the conclusion of the Rome Treaty, U.S. civilian and military negotiators worked to develop procedures that limit the likelihood of politicized prosecutions through greater precision in the definitions of crimes within the Court's jurisdiction, among other protections. The Statute has been enormously strengthened because of the hard work of U.S. delegations on substantive and technical issues.

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* Any crime committed by an American would have to constitute a core crime under the ICC (genocide, crimes against humanity and war crimes) and would be subject to threshold for investigation and prosecution. All three require some sort of plan, policy or strategy to commit the crimes, and the crimes must be committed as part of pattern of such crimes. The thresholds are so high that the United States and its official personnel could never, under U.S. law, plan and engage in such extraordinarily severe and systematic crimes.

* The court will not acquire jurisdiction over individual crimes such as rapes, looting, or bar brawls, unless it could be demonstrated that they were the result of an official U.S. policy. Even atrocities committed by rogue units, such as the My Lai Massacre in Vietnam, would not come under the Court's jurisdiction.

* It is already illegal for U.S. soldiers to commit the crimes that fall under the ICC's jurisdiction. According to Judge Robinson O. Everett of the U.S. Court of Military Appeals, "...the existing provisions of the Uniform Code of Military Justice and the War Crimes Act [of 1996] have already created jurisdiction over war crimes on the part of U.S. courts-martial..." He continues, "Therefore, the principle of complementarity set out in the ICC statute would provide the United States a basis for maintaining that American servicemembers accused of crimes prohibited by the Statute should be tried by a U.S. court-martial, rather than by the ICC."

Concern: The ICC seems unconstitutional, and does not provide for a jury trial.

* Even in an administration skeptical of the ICC, the U.S. Department of Justice ruled that there are no Constitutional barriers to joining the ICC.

* The ICC's procedural protections constitute full U.S. Bill of Rights protections for accused persons, except for jury trials. The right to jury trial in the Bill of Rights applies only to cases heard in the U.S. However, active duty members of the armed forces are not guaranteed jury trials under the U.S. Constitution. Moreover, Americans have been extradited for trial abroad for hundreds of years, even to systems without American-style justice systems. Moreover, in a July 25, 2000 statement to the House Committee on International Relations on behalf of the American Bar Association, former Assistant General Counsel for International Affairs in the Office of Secretary of Defense and Legal Adviser to the Department of State Monroe Leigh states that the Rome Statute contains full due process protections: the "Treaty of Rome contains the most comprehensive list of due process protections which has so far been promulgated."

Concern: The existence of the ICC might dampen U.S. military participation in peacekeeping and humanitarian missions.

* The U.S. will not have to change its strategy because U.S. strategy already conforms to international and domestic law in field operations.

* Under the Rome Statute, the ICC must defer to agreements between states - such as U.S. Status of Forces Agreements - before proceeding with a request for surrender (Article 98). The U.S. almost invariably requires a SOFA or similar agreement before engaging in peacekeeping or humanitarian missions.

* The potential threat from the ICC is a symbolic challenge to American decisions about the use of force. The ICC will have no independent enforcement powers. The task of apprehending suspects will fall to states, which already have the authority to apprehend suspects within their borders. The UN Security Council could decide to take enforcement action, but this would be subject to a U.S. veto.

For more information, please contact Heather B. Hamilton, Coordinator, Washington Working Group on the ICC, hbhamilton@wfa.org, 202-546-3950; Don Kraus, Campaign for UN Reform, dkraus@cunr.org, 202-546-3965; or Raj Purohit, Lawyers' Committee for Human Rights, 202-547-5692, purohit@lchr.org.

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# Protections Against Unwarranted Prosecutions in the Rome Statute

The Rome Statute contains numerous safeguards against politically-motivated or ill-conceived prosecutions, which are intended to ensure that the International Criminal Court addresses only the most egregious international crimes. The International Criminal Court is also designed to ensure that States are the first to investigate and prosecute potential cases; the ICC will act only in situations where States are not willing or able to do so. In this respect, the Statute has often been described as striking a delicate balance between the demands of an evolving international criminal legal system and those of the world's national judicial systems.

As follows is a brief summary of some of the safeguards in the Statute:

## 1. States automatically have first rights to investigate:

Under the complementarity regime of the Rome Conference, States clearly have the first opportunity to investigate a situation involving their own nationals or over which they would normally be able to exercise jurisdiction, and to decide whether to prosecute the individual concerned in national courts. As soon as the Prosecutor has determined that there is a reasonable basis for investigation of a case, s/he must notify all States which could normally exercise jurisdiction over the potential case, including all States Parties to the Rome Statute. Within one month of receipt of this notice, if a State replies to the Prosecutor that it is investigating or has investigated the situation, the Prosecutor does not take further action. It is only where no State is willing or able to undertake such an investigation that the ICC would consider the case. Where a State has undertaken an investigation or prosecution, the Prosecutor must be able to demonstrate that a national investigation is not genuine or has been undertaken for the purpose of shielding the individual concerned from justice before it can intervene.

## 2. States have more than one opportunity to challenge the decisions of the Court:

States have several opportunities to raise issues relating to a case or otherwise to challenge the admissibility of a case or the Court's jurisdiction. First, States may provide information regarding potential cases to the Prosecutor in the initial stages of investigations. Once the Prosecutor obtains consent from the Pre-Trial Chamber to initiate a formal investigation, States will be notified, as described above, and be given the opportunity to claim jurisdiction over the case in question. If States do not respond to this notice, they, as well as the individual concerned, may still challenge once the Court's ruling regarding the genuine nature of national investigations and prosecutions or the Court's jurisdiction over a particular case either prior to or

Coalition for the International Criminal Court

June 2000

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at the commencement of the trial. After the trial has started, in exceptional circumstances, the Court may allow challenges to be brought, if the State can show that the individual concerned has already been tried in national courts.

If a challenge is raised relating to the Court's right to investigate or prosecute a case, the Prosecutor must suspend any investigation, notwithstanding emergency measures to preserve evidence, until the Court has responded to the State's concerns.

Finally, States, as parties to a case, may appeal decisions regarding admissibility of a case or the Court's jurisdiction, interim release of the individual concerned, the Pre-Trial Chamber's decision to take measures to preserve evidence, or any other decision which would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.

### 3. The scope of the Court's work was kept deliberately narrow:

Article 12 indicates that the Court can only go forward with a case when either the State on whose territory the crime was committed or the State whose national allegedly committed the crime agrees. During the negotiations in Rome, many States favored broader scope for the Court's work, specifically allowing the State whose national was a victim and the State with custody of the accused to invoke the Court's authority.

### 4. The Court allows States to protect information which is considered sensitive for national security purposes:

Article 72 allows a State to intervene where it learns that information or documents of that State may be disclosed during the Court's proceedings, and believes that disclosure would prejudice its national security interests. The Article proceeds to set forth steps by which the Court and the State may work together to ensure that evidence may be used by the Court without causing harm to a State's national security interests. In the end, States make the final decision about what information to withhold from the Court, although if the Prosecutor determines that a State is obliged to cooperate and has failed, this matter can be referred to the Assembly of States Parties and, where appropriate, to the UN Security Council.

### 5. The Statute requires the development of rules of procedure and evidence and elements of crimes, which allow participating States to further define how the Court will function:

The Rome Statute calls for the negotiation of rules of procedure and evidence and elements of crimes, which the Preparatory Commission has nearly completed. These supplementary texts more clearly define how the Court will work. For those States which are concerned about the degree of discretion which the Court's judges and Prosecutor can exercise, these rules and elements help to ensure that there is an pre-arranged approach for almost every possible situation which may face the Court.

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6. The threshholds for proving the crimes in the Statute are set high to ensure that only the most egregious crimes are tried by the Court:

In order to prove that a crime against humanity has been committed, the Prosecutor must show that the act in question was committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. War crimes generally must be committed as part of a plan or policy or as part of a large-scale commission of such crimes. Genocide must be committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The crime of aggression has not yet been defined, but any agreement on this crime will likely include a similarly high threshhold of proof. Thresholds for individual crimes are all underpinned by the Preamble of the Statute, which affirms that "the most serious crimes of concern to the international community as a whole must not go unpunished".

These threshholds were designed to ensure that isolated incidents or accidents would not be subject to the Court's jurisdiction. Only the most grave crimes, committed purposefully and in the context of a larger-scale effort, will be addressed. The threshholds are also meant to ensure that single isolated acts are not subject to prosecution for reasons of political motivation, as the Prosecutor must objectively demonstrate both the context within which an incident took place and the specific intent to commit the crime in question.

7. The Statute allows States to withhold extradition where the State is obliged to extradite the individual elsewhere:

Article 98 of the Statute was developed in response to States' concerns that their obligations to the Court would conflict with other obligations regarding extradition or diplomatic immunity. Article 98 therefore provides that the Court may not seek an individual where it would create a conflict for a State because the individual sought either enjoys diplomatic immunity or is the subject of a request from another State for extradition. Only where that other State agrees to lift the individual's immunity or allow the extradition, can the Court act.

8. The Security Council may defer any case where it has an interest, for reasons of maintaining international peace and security:

Article 16 of the Rome Statute allows the Security Council, through a resolution adopted under Chapter VII of the UN Charter, to defer an investigation or prosecution for a renewable period of twelve months. This provision recognizes that the Security Council may be dealing with delicate political situations or conflicts and should have first priority in trying to resolve them. This demonstrates again that the ICC plays a very specific, clearly-envisioned role within the international community, in support of the maintenance of international peace and security.

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©1998 by the Lawyers Committee for Human Rights

Printed in the United States of America

All Rights Reserved

Since 1978 the Lawyers Committee for Human Rights has worked to promote
international human rights and refugee law and legal procedures in the United States and
abroad. The Chair of the Lawyers Committee is Norman Dorsen; Michael H. Posner is
its Executive Director. Stefanie Grant is Director of Program and Policy. George Black
is Research and Editorial Director. Jelena Pejic is Senior Program Coordinator and
directs the Committee's work on the International Criminal Court. Jerry Fowler is
Legislative Counsel in the Lawyers Committee's Washington, DC office.

Copies of this report are available from:

Lawyers Committee for Human Rights
333 Seventh Avenue, 13th floor
New York, NY 10001 USA
tel: (212) 845-5240
fax:(212) 845-5299
e-mail: comm@lchr.org

DC office address until April 1999:
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Suite 508
Washington, DC 20003 USA

DC office permanent address:
100 Maryland Avenue, NE
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tel: (202) 547-5692
fax:(202) 543-5999
e-mail: wdc@lchr.org

http://www.lchr.org
http://www.witness.org

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PAGE 15/42

TABLE OF CONTENTS

<table><tr><td>EXECUTIVE SUMMARY</td><td>1</td></tr></table>

<table><tr><td>I. INTRODUCTION</td><td>3</td></tr></table>

<table><tr><td>II. WHY WE NEED A PERMANENT COURT</td><td>5</td></tr></table>

<table><tr><td>III. NUREMBERG TO ROME: THE HISTORICAL CONTEXT</td><td>7</td></tr></table>

<table><tr><td>IV. THE RESULTS OF ROME: HOW THE COURT WILL WORK</td><td>11</td></tr></table>

<table><tr><td>A. Crimes Within the Court's Jurisdiction</td><td>11</td></tr></table>

<table><tr><td>B. The Court's Structure</td><td>14</td></tr></table>

<table><tr><td>C. Relationship to National Courts</td><td>15</td></tr></table>

<table><tr><td>D. "Triggering" the Court's Jurisdiction</td><td>16</td></tr></table>

<table><tr><td>V. A COURT THE UNITED STATES SHOULD WANT</td><td>19</td></tr></table>

<table><tr><td>A. U.S. Goals in the Negotiation</td><td>19</td></tr></table>

<table><tr><td>B. The U.S. Concern About "Preconditions"</td><td>21</td></tr></table>

<table><tr><td>VI. THE U.S. INTEREST IN SUPPORTING THE ICC</td><td>25</td></tr></table>

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THE INTERNATIONAL CRIMINAL COURT: THE CASE FOR U.S. SUPPORT

EXECUTIVE SUMMARY

When the United States voted in Rome against the treaty to create a permanent international criminal court (ICC), it broke ranks with its closest allies. In fact, most of the rest of the world, including virtually every established or emerging democracy, voted for the treaty. Among the supporters were the United Kingdom, Germany, France—indeed, all of Western Europe—Russia, Canada, Australia, New Zealand, Argentina, Chile, South Korea and South Africa. The breadth of support for the ICC reflected a remarkable consensus in favor of this new international institution for justice.

The United States should join this consensus by actively supporting the ICC and ratifying the Rome Treaty at the earliest opportunity. The treaty is an important step towards institutionalizing the rule of law internationally and breaking the cycle of impunity that too often benefits those who commit the worst atrocities. An effective court will promote stability and peace. By helping to deter atrocities, the court will reduce the chances that American troops will have to be deployed in response to future Bosnias. And when soldiers are deployed, it will help prevent the commission of war crimes against them. The United States clearly has an interest in the benefits of more effective international justice, and has demonstrated as much by its leadership in supporting the *ad hoc* tribunals for Rwanda and the Former Yugoslavia.

U.S. opposition to the ICC undermines this important interest. But perhaps the most corrosive effect of the U.S. vote against the Rome Treaty is the damage done to the moral dimension of U.S. international leadership. Without doubt, U.S. influence in the world depends on might and wealth. But it also depends on moral stature and the power of principles. At a time when American engagement and leadership in the world is more important than ever in order to protect all U.S. interests, it is counterproductive to seek self-imposed isolation on a vital issue of principle.

Worse yet, that isolation is not necessary in order to protect other interests. Opposition to the treaty is based on a legitimate concern that the ICC could become a forum for politically motivated prosecutions of U.S. citizens. But safeguards included in the treaty—including many

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strongly pushed by the United States—provide ample protection against such prosecutions.

The question is not whether the risk of unfounded prosecution of American soldiers should be minimized. It should be and it has. The question is whether the benefit of eliminating the very last iota of risk justifies totally ignoring the cost to other interests of opposing the ICC. No rational calculation could conclude that it does.

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# I. INTRODUCTION

Fifty years have passed since the Nuremberg and Tokyo trials established that the world community can hold individuals accountable for committing crimes against humanity. But those crimes have continued to be committed. The perpetrators usually escape justice, in part because there is no court willing and able to judge them. National judicial systems are often hopelessly compromised, if not completely destroyed by the crimes in question. And there has been no international forum available.

Speaking to genocide survivors in Rwanda in March 1998, President Bill Clinton acknowledged that the United States and the world did not do enough to respond to the massacres that took hundreds of thousands of lives in 1994. Then he looked ahead. "We owe to those who died and to those who survived," he said, "our every effort to increase our vigilance and strengthen our stand against those who would commit such atrocities in the future."

As he stood in the Rwandan killing fields, President Clinton told his audience that "we must make it clear to all those who would commit such acts in the future that they too must answer for their acts, and they will." He explained that the problems of *ad hoc* tribunals demonstrated the need for a permanent international court to deal with crimes like the Rwandan genocide. "And," he pledged, "the United States will work to see that it is created."

But five months later, when a diplomatic conference meeting in Rome voted on a draft treaty to create the kind of court that President Clinton described, the United States voted "no," joining six other countries, including China and Iraq. Most of the rest of the world—120 nations—voted for the treaty, including the United States's closest allies and a majority of the UN Security Council.

The permanent International Criminal Court (ICC) will come into existence after 60

¹ Remarks by President Clinton to Genocide Survivors, Assistance Workers, and U.S. and Rwanda Government Officials (White House Office of the Press Secretary, March 25, 1998).

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countries ratify the Rome Treaty,² a process that will take at least several years. And even after it is established, jurisdictional restraints will limit the Court's effectiveness in its early years. But over time, the Court offers real promise of combating the cycle of impunity for the worst atrocities and increasing deterrence of these horrible crimes. Coming at the end of a century that witnessed the Holocaust, and with the images of ethnic cleansing in Bosnia and genocide in Rwanda still fresh in our minds, the importance to humanity of this promise is immense.

The U.S. should actively support the ICC and ratify the Rome Treaty at the earliest opportunity. An effective Court will benefit the United States by strengthening the rule of law internationally and promoting stability and peace. But it is also important to take into account the cost to U.S. interests of opposing the Court. At a time when American engagement and leadership in the world is more important than ever in order to protect all U.S. interests, it is counterproductive to seek and accept self-imposed isolation on a vital issue of principle.

Worse yet, that isolation is not necessary in order to protect other interests. U.S. opposition to the treaty stems from a legitimate concern that the ICC could become a forum for politically motivated prosecutions of U.S. citizens. But safeguards included in the treaty provide ample protection against such prosecutions.

The question is not whether the risk of unfounded prosecution of Americans should be minimized. It should be and it has. The question is whether the benefit of eliminating the very last iota of risk justifies totally ignoring the cost to other interests of opposing the ICC. No rational calculation could conclude that it does.

²The treaty's official title is Rome Statute of the International Criminal Court, A/CONF.183/9 (July 17, 1998).

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History teaches that the worst mass murderers, especially those in positions of authority, are rarely called to account. Hitler famously asked his underlings as they embarked on the road that led to Auschwitz, "Who remembers the Armenians?" And though the Nuremberg and Tokyo tribunals punished some of World War II's worst criminals, post-war hopes of establishing a permanent court fell victim to the Cold War. In the last 50 years, impunity for the most horrible atrocities has been the rule.

The UN Security Council established the *ad hoc* tribunal for the former Yugoslavia precisely because domestic authorities were unlikely to punish those responsible for atrocities. Even when the political will exists, as in Rwanda, fair prosecution is often impossible because conflicts have disrupted or even destroyed a country's judicial system.

The ICC will not be a panacea for gross human rights violations. But it will provide a forum to prosecute the most heinous international crimes when national systems are unable or unwilling to do so. It will serve to deter gross human rights violators, by confronting them with the threat of punishment. It will provide redress to victims where national courts cannot. It will strengthen peace and end the cycle of violence, by offering justice as an alternative to revenge. And it will contribute to the process of reconciliation, by replacing the stigma of collective guilt with the catharsis of individual accountability.

But unlike the *ad hoc* tribunals, which raise questions of selective justice and political motivations, the legitimacy of a permanent ICC created by a multilateral treaty will not be open to challenge. The Court will have the same mandate wherever the crimes under its jurisdiction are committed. A permanent Court will also be more efficient. It makes little sense to wait until a crime has been committed to begin building the courthouse or hiring judges and prosecutors.

And the ICC will benefit the United States. An effective Court will help deter atrocities. By doing so, it will reduce the chances that the American military will have to be deployed in response to future Bosnias. And an effective court will help deter the commission of war crimes *against* U.S.

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military personnel when they are deployed overseas. American soldiers in Bosnia are safer because the leading hatemongers are under indictment and in hiding or prison, instead of openly inciting their followers to violence against peacekeepers.

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### III. NUREMBERG TO ROME: THE HISTORICAL CONTEXT

The idea of putting top Nazi leaders on trial at the end of World War II originated in the United States. Our allies initially were in favor of summarily executing German leaders. But there was a strong feeling among U.S. leaders that a larger and more valuable point could be made by formally charging those men with criminal violations of international law. An international trial would help strengthen the rule of law over the rule of force. As the chief prosecutor, U.S. Supreme Court Justice Robert Jackson, explained in his opening statement, "that four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason."³

But even more important, the Nuremberg trial would establish that the international community can hold individuals personally accountable for committing heinous crimes. Presciently noting that the Nazi leaders embodied "sinister influences that will lurk in the world long after their bodies have returned to dust," Justice Jackson went to the heart of the matter:

> The idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. ... It is quite intolerable to let such a legalism become the basis of personal immunity.

> The [Nuremberg] charter recognizes that one who has committed a criminal act may not take refuge in superior orders nor in the doctrine that his crimes were acts of state.⁴

This vital principle of individual accountability for international crimes was reiterated in the Judgment handed down by the Nuremberg Tribunal. Rejecting the defendants' argument that international law deals only with the actions of sovereign states, the judges held that "crimes against

³Quoted in Robert E. Conot, *Justice at Nuremberg* (Carroll and Graf, New York: 1983), at 105.

⁴Id.

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international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."⁵

In the years after Nuremberg, the principle of individual accountability took root. In 1948, the Genocide Convention made genocide an international crime for which individuals could be held responsible, either before national courts or a contemplated international tribunal.⁶ The four Geneva Conventions of 1949 codified many of the laws of war and established individual responsibility for grave breaches of those laws.⁷ In 1950, the International Law Commission (ILC), a body of legal experts acting at the direction of the UN, distilled the "Principles of the Nuremberg Tribunal." The first principle was that "[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment."

Although the principle of individual accountability became well established, there was no progress in creating a mechanism to enforce that principle. Hopes for a permanent international court were dashed by Cold War rivalries, and proposals for such a court were shelved, left to gather dust for four decades. The "tragic irony"⁸ was that international humanitarian law gained wide acceptance, but was seldom enforced.

Only with the fall of the Berlin Wall in November 1989 did the creation of a permanent court become a realistic possibility. The horror of ethnic cleansing in the former Yugoslavia and of genocide in Rwanda added urgency to renewed efforts to create a court. Intensive international negotiations, in which the United States was one of the most important participants, proceeded

⁵Judgment of the International Military Tribunal for the Trial of German Major War Criminals (Nuremberg, September 30-October 1, 1946) [hereinafter *Nuremberg Judgment*], at 41.

⁶More than 125 countries, including the United States, are parties to the Genocide Convention.

⁷Acceptance of the 1949 Geneva Conventions is virtually universal—188 countries, including the United States, have ratified. The Conventions deal with the treatment during war of wounded, sick and shipwrecked military personnel, prisoners of war and civilians.

⁸Aryeh Neier, *War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice* (Times Books, New York: 1998), at xiii.

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through the 1990s. The five-week conference that ended with overwhelming international support
for the Rome Treaty represented the culmination of those efforts.

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Once 60 nations ratify the Rome Treaty, a permanent ICC will be created with headquarters in The Hague. (Article 3(1)) The Court will deal only with crimes committed after it is created. (Article 24) Because it will be established pursuant to a multilateral treaty, the Court will not be an organ of the United Nations, although the two organizations will have formal relations. (Article 2) And as explained below, the Security Council will have an important role in the Court's operation by virtue of its authority to initiate or defer investigations. (Article 13(b); Article 16)

The Court will have jurisdiction over genocide, crimes against humanity, and serious war crimes, the so-called "core crimes." The treaty also provides that the Court will have jurisdiction over aggression, if the treaty is amended to define the crime and to provide for the conditions under which the Court will exercise that jurisdiction. The U.S. delegation at Rome was extremely active in drafting the definitions of the core crimes, and the final text reflects much U.S. influence. U.S. Ambassador David Scheffer has listed "viable definitions of war crimes and crimes against humanity" as one of the objectives achieved by him and his team at the diplomatic conference.⁹

**Genocide.** The definition of genocide was not controversial and was taken from the 1948 Genocide Convention. (Article 6) The essence of this most horrific of crimes is the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (Article 6)

**Crimes Against Humanity.** A major achievement of the Rome Conference was the codification in a multilateral treaty, for the first time since the Nuremberg Charter, of crimes against humanity. For the purposes of the ICC's jurisdiction, crimes against humanity are acts such as murder, extermination, and enslavement "when committed as part of a widespread or systematic attack directed against any civilian population." Among the acts that can constitute crimes against

⁹Ambassador David Scheffer, Developments at the Rome Treaty Conference, Testimony Before the Senate Foreign Relations Committee (July 23, 1998).

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humanity are crimes of sexual assault: “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” (Article 7(1)(g))

The Court will have jurisdiction over crimes against humanity without regard to whether the perpetrators are government officials. Thus, individuals in paramilitaries and armed opposition groups can be held liable for these atrocities. There was a determined effort by a small number of states to limit the Court's jurisdiction to crimes against humanity committed during armed conflict. But customary international law does not mandate that nexus, and the reality is that crimes against humanity have been committed in peacetime. The final text thus gives the Court jurisdiction over crimes against humanity whether committed in peacetime or during war.

The Rome Treaty sets a high bar to the Court's jurisdiction over crimes against humanity by the way that it defines "attack directed against any civilian population." That term only covers conduct that is "pursuant to or in furtherance of a State or organizational policy." (Article 7(2)(a)) Thus, no matter how widespread acts such as murder might be, they will not fall within the ICC's scope unless there is a showing that they were committed in the execution of a State or organizational policy. Because of this requirement, the Court's jurisdiction over crimes against humanity will not extend as broadly as customary international law, reflecting the drafters' intent that the Court be limited to the most serious crimes of international concern.

**Serious War Crimes.** The Rome Treaty gives the Court jurisdiction over serious war crimes committed in both international and internal armed conflicts. (Article 8(2)) The war crimes article of the Rome Treaty draws from sources such as the four 1949 Geneva Conventions and other conventional and customary laws of war. Although in some cases the treaty provides narrower definitions than justified by existing international law, the scope of the war crimes article will allow the Court to deal with the most serious atrocities committed in war. In particular, the inclusion of war crimes committed in civil wars was important, because most conflicts in the modern world take

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place within the borders of a single nation.¹⁰

As with crimes against humanity, jurisdictional limits were attached to war crimes. First, the Court will have war crimes jurisdiction "in particular" when those crimes are "part of a plan or policy or [] part of a large-scale commission of such crimes." (Article 8(1)) This language presumptively restricts the Court to cases in which war crimes are either systematic or widespread, though it gives the Court the leeway to act, if circumstances dictate, even in the absence of evidence of a plan or of large-scale commission of war crimes. Second, the Court will have jurisdiction over many crimes committed in internal armed conflict only when "there is protracted armed conflict between governmental authorities and organized armed groups or between such groups." (Article 8(2)(f))

**Aggression.** "Crimes against the peace" were included in the Nuremberg Charter (along with war crimes and crimes against humanity), and the vast majority of delegates at Rome felt that it would be a step backward to establish a permanent court without including aggression in its jurisdiction. But there were deep disagreements about how to define the crime and about the role of the Security Council in determining whether aggression has occurred.

Aggression was included in the final text at Rome, but the Court cannot exercise its jurisdiction until the treaty is amended to define the crime and establish the conditions for Court action. (Article 5(1)(d), (2)) The treaty specifies that any amendment concerning aggression "shall be consistent with the relevant provisions of the Charter of the United Nations" (Article 5(2)), intended to ensure that the Rome Treaty will not derogate from the Security Council's role in maintaining international peace and security.¹¹

¹⁰See K.J. Holsti, *The State, War, and The State of War* (Cambridge University Press, New York: 1996), at 25. Surveying the past 480 years. Professor Holsti finds that "classical interstate wars have declined dramatically compared to previous historical periods, and constitute only about 18 percent of all wars since 1945."

¹¹"The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression ..." Article 39, Chapter VII, United Nations Charter.

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Since the conclusion of the Conference, the United States has cited the uncertainty surrounding aggression as a "fundamental concern" it has with the treaty.¹² As a practical matter, an amendment to allow the Court to define aggression might never happen, because of the treaty's onerous amendment procedures. No amendments will be considered until seven years after the treaty's entry into force. (Article 121(1); Article 123) And even then, amendments must be approved by a two-thirds vote of the Assembly of States Parties and ratified by seven-eighths of the States Parties. (Article 121(3), (4))

Unless there is sufficient consensus among States Parties to allow the treaty to be amended, the Court will not be able to exercise jurisdiction over aggression. And if there is an amendment, any treaty party that is not happy with it will be able to withdraw from the treaty before the amendment goes into force. Thus, the most effective way for the United States to pursue its concerns about the aggression provisions is as a fully participating party to the treaty, which would give it the greatest opportunity to influence talks. Because it can withdraw in the unlikely event that future negotiations produced an amendment that is unacceptable, it sacrifices nothing on this issue by supporting the Court.

B. The Court's Structure

Initially, the Court will consist of 18 judges, elected by a two-thirds majority vote of the Assembly of States Parties to nonrenewable nine-year terms. (Article 36(6), (9)) The requirement of a two-thirds majority ensures that only judges who are broadly acceptable to the international community will be seated on the Court. Moreover, only citizens of countries that are parties to the treaty can be judges. (Article 36(4)(b)) And no two judges may be citizens of the same country. (Article 36(7))

Ambassador Scheffer has cited the "rigorous qualifications for judges" as another of the U.S.

¹²Ambassador David Scheffer, The International Criminal Court, Remarks Before the 6th Committee of the 53rd General Assembly (October 21, 1998).

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objectives achieved in Rome.¹³ The treaty specifies that at least nine of the judges must have established competence in criminal law and procedure, while at least five must have established competence in relevant areas of international law, such as humanitarian and human rights law. (Article 36(5)) In selecting judges, the States Parties must take into account the need for representation of the principal legal systems of the world, equitable geographic representation and a fair representation of female and male judges. (Article 36(8)) Once elected, the judges will divide themselves among three divisions: Pre-Trial, Trial and Appeals. (Article 39)

The Prosecutor and one or more Deputy Prosecutors will be elected by absolute majority of the Assembly of States Parties to nonrenewable nine-year terms. (Article 42(4)) These individuals must have extensive practical experience in the prosecution or trial of criminal cases. As discussed in greater detail below, the Prosecutor will act on referrals by States Parties or the Security Council and may initiate investigations on her own motion (*propio motu*), subject to various safeguards and controls.

The Court is not intended to replace functioning judicial systems. Rather, the goal is to provide an alternative to impunity where independent and effective judicial systems are not available. Thus, a fundamental principle of the Rome Treaty is that the Court must defer to national courts, except in those cases where they are “unwilling or unable genuinely” to investigate or prosecute. (Article 17) This principle, known as “complementarity,”¹⁴ can be invoked by interested states and by individuals who have been accused of crimes to block Court action. (Article 18; Article 19)

¹³Ambassador David Scheffer, Developments at the Rome Treaty Conference, Testimony Before the Senate Foreign Relations Committee (July 23, 1998).

¹⁴The treaty's Preamble "emphasiz[es] that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions." (Emphasis in original.) Article 1 also specifies that the Court "shall be complementary to national criminal jurisdictions."

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The exceptions to the basic presumption of deferral to national systems are quite narrow. By the treaty's terms, "unwillingness" in effect requires that national proceedings be undertaken in bad faith before the ICC can step in. (Article 17(2)) Thus, the use of established, transparent judicial procedures—the norm in the military and civilian courts of established democracies governed by the rule of law—precludes a finding of "unwillingness." Unwillingness is *not* established just because an investigation does not result in prosecution. When a State carries out its obligation to investigate, even if it decides *not* to prosecute, the Court will be barred from acting.

"Inability" means "a total or substantial collapse or unavailability" of the national courts. (Article 17(3)) This exception would apply to countries in which the judiciary has ceased in whole or substantial part to function. It would not apply to a state with an independent and functioning judicial system.

A crucial issue in the ICC negotiations was how investigations will be started, or "triggered." There was widespread agreement in Rome that States Parties should be able to trigger investigations by referring situations to the Court. But there was vigorous debate and disagreement about whether the Security Council should be able to refer situations and whether the Prosecutor should be able to initiate investigations on her own motion.

**Security Council.** The Rome Treaty permits the Security Council to refer situations while acting under Chapter VII of the UN Charter.¹⁵ (Article 13(b)) And when the Security Council refers a situation, the Court can exercise its jurisdiction without regard to whether interested countries, such as the country of a suspect's nationality, have accepted the Court's jurisdiction. Thus, the Court's reach is greatest when it is given a Security Council mandate. The Security Council will also have the power to defer investigations or prosecutions for renewable twelve-month periods. (Article 16)

¹⁵Chapter VII of the UN Charter gives the Security Council plenary authority to maintain or restore international peace and security.

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In light of these powers, it is surprising that some opponents of the ICC in the United States Congress, such as Senator Jesse Helms (R-NC) and Senator Rod Grams (R-MN), criticize the Rome Treaty as an attempt to do an "end run" around the Security Council. Senator Grams has asserted that the treaty is "a great victory for the critics of the Security Council." In fact, the most vociferous critics of the Security Council—such as India, Iraq and Libya—refused to support the treaty, while three of the five permanent members of the Security Council voted for it.

**The Prosecutor.** The Rome Treaty also permits the Prosecutor to initiate an investigation on her own motion (*propio motu*), subject to rigorous safeguards. (Article 13(c); Article 15) Supporters of this prosecutorial power viewed it as a vital complement to Security Council and State Party referrals. Although those other "trigger" mechanisms are necessary, they would not be sufficient if the Court is to be effective. The Security Council is a political body that will often be paralyzed by the veto power of one of its five permanent members. And states will often be reluctant to refer matters involving another state's nationals, especially if doing so might interfere with diplomatic or economic relations or invite retaliation. As a consequence, the independent prosecutor is essential.

In order to alleviate concerns of prosecutorial abuse of power, the Rome Treaty tightly circumscribes the Prosecutor's authority. Before she can proceed on her own initiative, she must convince a panel of judges that the investigation has "a reasonable basis" and that the case is within the Court's jurisdiction. (Article 15(4)) She also must defer to investigations by national authorities, unless a panel of judges decides that those authorities are unwilling or unable genuinely to investigate or prosecute. (Article 17; Article 18) Additionally, the Court and Prosecutor must defer proceedings for a renewable twelve-month period if requested to do so by the Security Council. (Article 16) Finally, the Prosecutor is limited to initiating investigations in cases that involve either conduct on the territory of states that have accepted the Court's jurisdiction or acts committed by the nationals of such states. (Article 12)

During the Rome Conference, the United States opposed giving *propio motu* powers to the

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Prosecutor. Perhaps because U.S.-sponsored procedures to ensure early deferral to national proceedings were included in the treaty, the United States has not listed the Prosecutor's powers as a "fundamental concern" that it has with the final text.

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A. U.S. Goals in the Negotiation

U.S. Ambassador David Scheffer has described the basic U.S. goal in the ICC negotiations:

> We sought a court that would be empowered by the UN Security Council to pursue those responsible for heinous crimes, whoever and wherever they are, but also a court whose ability to act without a Security Council mandate would be shaped in such a way as to protect against a misguided exercise of authority that might harm legitimate national and international interests.¹⁶

It is difficult to see any meaningful way in which this goal was not completely achieved by the Rome Treaty. As the United States wanted, the ICC will have its greatest authority when the Security Council empowers it. And when the Court acts without a Security Council mandate, it will be severely circumscribed, most notably by being limited to cases involving the territory or nationals of countries that accept its jurisdiction. (Article 12)

Moreover, there are stringent safeguards against a "misguided exercise of authority." Indeed, protection against frivolous or politically motivated prosecutions was not just an American concern. Many of the Court's supporters deploy soldiers abroad, often as part of UN or NATO peacekeeping operations. They are as loath as the United States to expose their soldiers to unwarranted Court action.

> Most important of the safeguards is the treaty's strict complementarity standard, described above.¹⁷

At U.S. insistence, the treaty includes a procedure that allows a nation to assert the primacy of its national judicial system for its citizens when the Prosecutor begins to look into a situation, even before individual suspects have been identified. (Article 17) The U.S. argued strongly in favor

¹⁶Ambassador David Scheffer, America's Stake in Peace, Security, and Justice (August 31, 1998).

¹⁷See *supra* note 14 and accompanying text.

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of the provision, saying that it was "extremely important to the United States Government" and took
"account of our interest in protecting against unwarranted investigation and prosecution of persons
who are being investigated by their own national authorities."¹⁸ Although there was widespread
concern that allowing such an early challenge could unduly hamper investigations, it was accepted.

> Strict limits on the crimes covered by the Court further reduce the chances of inappropriate prosecution.

The Court will only be able to exercise jurisdiction over genocide, crimes against humanity and serious war crimes. (Articles 5-8) The definitions of crimes against humanity and war crimes in the treaty were in some ways made narrower than accepted international law. And as explained above,¹⁹ care was taken to ensure that the Court is restricted to dealing with "the most serious crimes of international concern."

> Even if the Prosecutor wanted to bring an unwarranted prosecution, she has little ability to act without judicial approval.

The prosecutor can not even begin an investigation on her own initiative without convincing a panel of judges that there is a reasonable basis to proceed and that the Court has jurisdiction. (Article 15(4)) Then, she can only obtain an arrest warrant by persuading a judge that there are reasonable grounds to believe that the person committed a crime within the Court's jurisdiction. (Article 58) And within a reasonable time after obtaining custody of a suspect, the Prosecutor must convince a panel of judges, in a contested confirmation hearing, that there are substantial grounds to believe that the person committed each of the crimes charged. (Article 61)

> At any stage of a proceeding, the Security Council can direct the Court to defer an investigation or prosecution for 12 months. (Article 16)

The deferral can be renewed an unlimited number of times. While protecting the prerogative

¹⁸Statement of U.S. Delegation on "Article 11bis—Preliminary Rulings Regarding Admissibility" (A/AC.249/1998/WG.3/DP.2) (April 3, 1998).

¹⁹See *supra* note 9 and accompanying text.

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of the Security Council to maintain international peace and security, this provision also affords a
politically powerful state such as the United States the opportunity to forestall investigations or
prosecutions of its citizens.

B. The U.S. Concern About “Preconditions”

U.S. opposition to the treaty centers on Article 12, which establishes “preconditions” to the Court’s jurisdiction in cases where the Security Council does not trigger court action. With a Security Council mandate, there are no preconditions. But without a mandate, the Court can act only in cases that involve the territory or citizens of countries that accept its jurisdiction. These preconditions will sharply limit the scope of the Court’s independent action for many years, because today’s rogue nations will be among the last to ratify the treaty. During that time, the Court largely will have to depend on the Security Council to give it jurisdiction.

But the United States pushed in Rome for even more restrictive preconditions, insisting that the Court be authorized to act without Security Council approval only if the country whose citizens are accused of crimes has accepted the Court's jurisdiction. It argued that the consent of the country on whose territory crimes are committed should not be enough to allow the Court to act.

Motivating the U.S. position was its adamant opposition to any possibility that the Court
might have jurisdiction over U.S. personnel before the United States becomes a party to the treaty.²⁰
It denounced the treaty as flawed because Article 12 creates a theoretical potential for that to
happen—based on conduct occurring on the territory of a state that accepts jurisdiction. The U.S.
view was that no matter how many safeguards exist to prevent unjustified prosecutions, even a
theoretical possibility of Court jurisdiction unreasonably exposes U.S. personnel.

Why did other countries, including its closest allies, not accommodate the United States?

²⁰"Our fundamental concern is, in the absence of a Security Council referral, the court asserting jurisdiction over non-party nationals." Ambassador David Scheffer, The International Criminal Court, Remarks Before the 6th Committee of the 53rd General Assembly (October 21, 1998).

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There are at least five reasons.

> First, the final text of Article 12 in fact represents a significant accommodation, because it is a dramatic compromise from broader proposals that were supported by an overwhelming majority of other nations.

In open debate, 60 nations—89 percent of those addressing the issue—voiced support for one such proposal. Only four countries spoke in favor of the United States position.

> Second, there was a feeling that the legitimate concern of preventing unjustified prosecutions had been addressed in the myriad ways described above.

U.S. insistence on still more protection was simply not reasonable. This feeling was strengthened by the fact that many countries that deploy their militaries on international missions believe the safeguards included in the treaty are adequate.

> Third, Court supporters worried that further restrictions on the Court's independent jurisdiction would render the Court ineffective.

Many provisions in addition to the jurisdictional limitations of Article 12—including many championed by the United States—already confine the Court's independence to the point of seriously threatening its effectiveness. The further loophole that the United States sought in order to protect itself against a very remote and hypothetical threat could allow the likes of Saddam Hussein to evade justice.

> Fourth, many nations felt strongly that the consent of the nation on whose territory a crime is committed should be enough to support the Court's jurisdiction.

They believed that individual countries have a sovereign right to determine how to adjudicate conduct that occurs on their own soil, a right firmly grounded in international law and history. And including the territorial basis for jurisdiction was especially important for smaller countries that feel vulnerable to predation by stronger neighbors.

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> Finally, further accommodation was rejected because it would have enfeebled the Court for the benefit of those countries that will not ratify the treaty.

Indeed, the U.S. position created an incentive for countries—especially those with aggressive inclinations—not to ratify. Although Court supporters were willing to, and did, go a long way in search of American benevolence towards the Court, there eventually was a limit to how much they would debilitate the Court in order to satisfy a nation that plainly was not going to join.

On the day before the conference in Rome ended, the United States tabled a final jurisdictional proposal. It would have required the consent of the state of nationality of the accused only if that state claimed that alleged crimes were committed "in the course of official duties."²¹ For example, if Iraq were not a party to the treaty and invaded Kuwait, it could forestall Court jurisdiction over the conduct of Iraqi soldiers on Kuwaiti soil by saying that any alleged crimes were committed in the course of official duties. It would not matter that Kuwait wanted the Court to have jurisdiction.

The proposal was rejected for all the reasons described above. But as a matter of principle, an "official acts" approach was even more objectionable than a straightforward requirement of consent from the state of nationality, because it would have drawn a distinction between officially sanctioned conduct and other conduct. This distinction would have eviscerated the core principle of the movement for international justice, which is that individual responsibility for atrocities cannot be avoided by a claim that the person was acting in an official capacity or was following orders. As the Nuremberg Tribunal observed, "the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state."²² Simply put, genocide, crimes against humanity and war crimes cannot be excused merely because they have the imprimatur of the state.

²¹Proposal Submitted by the United States of America, A/CONF.183/C.1/L.90 (July 16, 1998).

²²Nuremberg Judgment, supra note 5, at 42.

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If adopted, the "official acts" proposal would have been a dangerous retreat from the principle of individual accountability. And the ultimate beneficiaries would have been the most shameless states, who could simultaneously deny that any atrocity occurred while asserting that whatever happened was "in the course of official duties."

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The American delegation vigorously promoted U.S. interests in Rome, and the treaty as a whole bears a strong U.S. imprint. The Court that will be created when the treaty comes into force is one that will help institutionalize the rule of law without an undue risk of abusive prosecutions. But in spite of the tremendous American influence over the final text and the clear U.S. interest in an effective Court, the United States voted against the treaty. It has said that there is no prospect that it will sign the treaty in the future.²³

This U.S. opposition to the Court seriously undermines U.S. world leadership and hurts U.S. national interests. With all the safeguards built into the treaty to prevent in appropriate prosecutions—safeguards sufficient to satisfy the United Kingdom and France, to name but two—other nations will justifiably conclude that the United States simply is not willing to be bound by international humanitarian law, that the United States is happy to set and enforce rules for other countries as long as the rules do not apply to it. This perception lends credibility to rogue leaders, like Slobodan Milosevic and Saddam Hussein, who claim that they are being victimized by unfair vendettas, rather than being sanctioned for violating international law. And the ability of the United States to generate and maintain support for the isolation of these and future rogues suffers accordingly.

The most corrosive effect of the U.S. vote against the Rome Treaty is the damage done to the moral dimension of U.S. international leadership. The U.S. can accomplish a lot because it is stronger and richer than any other nation. But it is able to do more when it accompanies its power and wealth with moral force. And in the long run, it will cost America less in blood and treasure if international stability and security are based on the rule of law, backed up by economic and military might, rather than based on might alone. If the United States relies on might alone, it too often will have to stand alone.

²³ Ambassador David Scheffer, The International Criminal Court, Remarks Before the 6th Committee of the 53rd General Assembly (October 21, 1998).

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In straining for the last ounce of benefit from a "guarantee" that its soldiers will not be brought before the ICC, the United States will pay the cost of sapping U.S. foreign policy of its moral strength and compromising the interest in promoting the rule of law. The possible benefit does not justify the probable cost. U.S. opposition to the ICC gives comfort to international outlaws in exchange for virtually nothing.

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