The Export-Import Bank Act of 1945 was amended in 1978 by legislation referred to as the “Chafee Amendment,” P.L. 95-630, 92 Stat. 3724. The Chafee Amendment, as amended in 2002 by P.L. 107-189, states, “Only in cases where the President, after consultation with the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate, determines that such action would be in the national interest where such action would clearly and importantly advance United States policy in such areas as international terrorism (including, when relevant, a foreign nation’s lack of cooperation in efforts to eradicate terrorism), nuclear proliferation, the enforcement of the Foreign Corrupt Practices Act of 1977, the Arms Export Control Act, the International Emergency Economic Powers Act, or the Export Administration Act of 1979, environmental protection and human rights (such as are provided in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948) (including child labor), should the Export-Import Bank deny applications for credit for nonfinancial or noncommercial considerations” (12 U.S.C. § 635(b)(1)(B)).
It should also be noted that, pursuant to Executive Order 12166, the President has delegated his authority to make Chafee determinations to the Secretary of State, who must consult with the Secretary of Commerce and the heads of other interested Executive agencies.
EXIM and the State Department, including the Bureau for Democracy, Human Rights, and Labor, have developed procedures for regular consultation on human rights concerns. According to these procedures, the State Department provides to EXIM a list of countries with human rights concerns. Countries not on that list are pre-cleared. EXIM refers the transaction to the State Department for human rights review when a proposed transaction is over $10 million and involves goods or services to be exported to a country that has not received “pre-clearance.” In addition, EXIM country economists may work in concert with the State Department, where appropriate, to examine human rights and other foreign policy considerations in their assessment of the risks associated with transactions in specific countries.
Various other statutory provisions addressing human rights and other foreign policy concerns may also impact EXIM programs. For example, with respect to EXIM’s approval of support for the sale of defense articles or services for anti-narcotics purposes, EXIM may approve such a transaction only following satisfaction of a number of statutory criteria, one of which is that the President must have determined, after consultation with the Assistant Secretary of State for Democracy, Human Rights and Labor, that the “the purchasing country has complied with all restrictions imposed by the United States on the end use of any defense articles or services for which a guarantee or insurance was provided, and has not used any such defense articles or services to engage in a consistent pattern of gross violations of internationally recognized human rights” (12 U.S.C. § 635(b)(6)(D)(i)(II)). In addition, the OECD Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence, agreed in June 2012, defines social impacts to include project-related human rights impacts and directs EXIM to give such impacts a more prominent role in the environmental and social review of projects being considered for its support.