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ANNEX
1.
Letter addressed to the Chairwoman of IACHR by Paraguay’s Minister of
Foreign Relations.
D/M
No. 143
Asunción, 2 June 1987
Madam
Chairman:
I
have the honor of replying to your note of March 30, in which you kindly advised
me that the Commission you chair is writing the report on the status of human
rights in my country, to which you add “in order that the report may reflect
the situation of the country (Paraguay) as accurately and objectively as
possible, the Commission is confident that the Paraguayan Government will
confirm the prior authorization necessary for the proposed in loco visit
to take place a mutually convenient time in the near future, sufficiently in
advance of June 22, 1987 when its next regular meeting is scheduled begin.”
The
paragraph made a deep impression on me because of the careful wording of the
request for confirmation: it conveys the impression that a capital question of
the utmost gravity is at issue, on that could result either in grave damage to
Paraguay or the need for a sever measure on the part of the Commission
I
do not doubt that the Commission’s interest lies in emphasizing diligent
compliance with its mandate; but since the exhortation inevitably has the
connotation of negligence, delay or an oversight on the part of the other party
that calls for remonstration—in view of the short deadline specified—I find
it necessary to explain certain points to clarify the situation and the position
of Paraguay in this instance.
1.
The Government of the Republic of Paraguay is signatory to the United
Nations Charter and the Universal Declaration of Human Rights, and it has
honored those commitments ever since they were assumed at the time the World
Organization was founded.
2.
As a member of the United Nations, the Government of Paraguay cannot
disregard the express provisions of the Charter in paragraph 1 of Article 52,
Chapter VII, “Regional Agreements,” which stipulate textually: “Nothing in
the present Charter precludes the existence of regional arrangements or agencies
for dealing with such matters relating to the maintenance of international peace
and security as are appropriate for regional action, provided that such
arrangements or agencies and their activities are consistent with the Purposes
and Principles of the United Nations. The
word consistent, as well as the purpose and principles of
the UN, are understood to refer exclusively to matters involving the
maintenance of international peace and security and susceptible to general
action.
3.
But the United Nations Charter anticipates other specifics, since as
early as Article 1 paragraphs 1, paragraphs 3 and 4, it includes the following
among the purposes of the Organization, i.e., the UN: “3, To achieve
international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in PROMOTING AND ENCOURAGING
RESPECT FOR HUMAN RIGHTS AND FOR FUNDAMENTAL FREEDOMS FOR ALL without
distinction as to race, sex, language, or religion; and 4. To be c CENTRE FOR
HARMONIZING the actions of nations in the attainment of these common ends.”
4.
Furthermore, Article 55 of the Charter includes provision that is
relevant in this connection and that is clarified by transcription of the
initial paragraph and its subparagraph c): With a view to the creation of
conditions of stability and well-being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, for the principle of equal rights and
self-determination of peoples the UNITED NATIONS SHALL PROMOTE: …..
C) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion, AND THE EFFECTIVENESS OF SUCH RIGHTS AND FREEDOMS.”
The word universal is underscored to highlight the inherent scope
of the Organization, so that the promotion it espouses is perfectly consonant
with the UNIVERSAL Declaration of Human Rights and with the role as a center
for harmonizing, established in Article 1, paragraph 4 of the Charter.
5.
With this understanding, and without prejudice to attributing due
importance to the Organization of American States and the Inter-American
Commission on Human Rights, the Government of the Republic of Paraguay has made
a special effort, particularly in this area, to maintain close relations with
the United Nations and with the Commission on Human Rights headquartered in
Geneva. This does not interpolate
any discrimination or injurious distinction, but obeys the legal regime of
international for a prescribed by the passages quoted above from the United
Nations Charter. So much so that
the same treatment is given to communications from the United Nations Commission
on Human Rights and the Inter-American Commission on Human Rights, all of which
are punctiliously observed by the Government of the Republic of Paraguay.
The same applies to the annual meetings of the two Commissions, which
meet in Geneva and Washington, respectively.
Moreover the Government has sent special representatives to the meetings
held by the subcommittee on the Prevention of Discrimination and Protection of
Minorities to prepare papers and documentation for ensuing sessions when matters
of special importance made it advisable to do so.
On other occasions, it has been Paraguay’s ambassador to the country
where the Subcommittee is convened for that type of preparatory work who has
attended in order to answer questions concerning pending matters concerning
Paraguay.
6.
Ever mindful of the regimen established in the United Nations Charter,
the Government of the Republic of Paraguay reached an agreement in due course
with the United Nations Commission on Human Rights in regard to visit to
Paraguay by an independent expert, who would observe in loco the
situation of human rights in the country, with the date of the visit to be set
by the Government of Paraguay. After
it was agreed by both parties—at the 41st regular meeting to the
Commission on Human Rights on March 4, 18\985—that Dr, Rafael Rivas Posada
would be appointed, it was decided that the visit in question would take place
in June of 1986.
7.
The Government of the Republic of Paraguay gave instructions for all of
these arrangements with the absolute conviction that its actions were completely
congruent with the United Nations juridical system and because of the universal
nature of the organization, as underscored in the title of the Declaration
itself and reaffirmed in Article 55, paragraph c) of the Charter: “universal
respect for human rights … .” Furthermore, as we have seen in the pertinent
transcription, Article 52, paragraph one of the Charter does not preclude “the
existence of REGIONAL arrangements or AGENCIES” subject to the provision that
those arrangements be designed to “deal with such matters relating to the
maintenance of international peace and security as are appropriate for regional
action.” All of this beyond any doubt has no relation to or connection
with human rights, which are moreover specifically labeled as universal,
and therefore lie within the purview of the United Nations—or, more precisely,
that of the United Nations Commission on Human Rights—thereby entitling the
latter to priority, if not exclusive jurisdiction.
8.
Failure to accept this interpretation would entail an onerous and
unnecessary duplication, and one that would be potentially dangerous both to the
prestige of the United Nations and to the legitimate interests of states and
governments, since conflicting reports might result.
This has been observed on more than one occasion at lower levels in the
case of conclusions drawn on the basis of communications and commentaries
which—although dealing with the same specific matters—give rise to different
conclusions because they were examined by different for or in different working
committees.
9.
The Government of Paraguay nevertheless recognizes that just as there is
a Universal Declaration of Human Rights at the UN level, there is also an
American Declaration of the Human Rights of Man.
By the same token, there are two pacts that served as a basis for the
Universal Declaration: the International Covenant of Economic and Social Rights,
and the International Covenant on Civil and Political Rights, just as the basis
for the American Declaration was the American Convention on Human Rights, known
as the San José Convention. The
Government also recognizes that all of these international instruments have
entered in effect, although Paraguay has ratified only the Universal
Declaration, a contemporary of the United Nations Charter whose specific content
is based on equally specific provisions of the Charter.
The other instruments, which came later or were addressed in another
forum, are also an offshoot of the Universal Declaration and the American
Declaration is simply a regional version thereof within the framework of the
Organization of American States.
10.
This manifest duality is the source of the concern expressed in paragraph
8 above, and it is especially timely in the context of the note of March 30,
1987 written “in view of the drafting of the corresponding preliminary
report,” and stating that “in order for that report to reflect the situation
in this area (human rights) as accurately and objectively as possible, the
Commission is confident that Paraguayan Government will confirm the prior
authorization necessary for the proposed in loco observation visit to
take place in the near future at a mutually convenient time, sufficiently in
advance of June 22, 1987 when its next regular meeting is scheduled to start.”
Because of the brevity of the interval between receipt of the note of
March 30 and the start of the meeting period—which assumes mobilization of the
participants prior to June—it hardly seem logical to speak of a mutually
convenient date for the aforesaid “observation visit,” which cannot be
improvised of implemented without a full explanation of the concrete objectives,
specifically the subjects, cases and problems and other questions of interest
denounced or reported to the Commission about which the Paraguayan Government
may not be apprised, or its reply may not have given complete satisfaction.
The note from the Chairwoman of the Inter-American Commission on Human
Rights seems rather to embody a challenge.
In any event, the chief problem is the duality described above in
connection with the major international instruments currently in effect
concerning human rights.
11.
As it happens, after protracted negotiations with the UN Commission on
Human Rights in Geneva, an agreement was reached on appointment of an
Independent Expert to observe the situation of human rights in Paraguay.
The appointee is the illustrious Colombian jurist, Dr. Rafael Rivas
Posada, who has already made an in loco observation visit to Paraguay,
covering extensive areas of the country, calling on different institutions and
officials, and making contact with all of the existing political parties, even
those that have no legal status or consist of splinter groups from the others. He has also been in touch with social and religious movements
and with independent personages and others not engaged in political activities.
The mission entrusted to Dr. Rivas Posada by the UN Commission on Human
Rights was not completed with the first visit; it is still in progress, and
other visits to Paraguay on his part are to be expected before he completes his
mandate; but his first report may be seen at the Commission’s headquarters in
Geneva. Besides, whatever the
nature of the report, the sum total of the Government’s political activities
that, directly or indirectly, have succeeded in improving and strengthening the
validity of human rights in Paraguay and in seeking t consolidate the lawful
state and democratic opening that has propounded pluralistic participation at
the polls since 1962 within the framework of the constitutional and legal
precepts which themselves are the product of pluralistic participation, such as
the National Constitution of 1967 and the Electoral Statute of 1981, Law
886—all these things are public and universal knowledge.
Because the expositive sequence and chronological data of events will
reveal the dynamic evolution of human rights in practice, it is of the greatest
interest to the Government of the Republic of Paraguay, and part of the
legitimate rights of the Paraguayan State, to proffer to Dr Rivas Posada, in his
capacity as Independent Expert of the UN Commission on Human Rights, the
opportunity to expand, rectify, correct or adjust his observations with the
utmost freedom, and until he acquires sufficiently broad and detailed knowledge
of the situation and evolution of human rights in Paraguay, in the light of its
institutions, its laws and the development of its authorities, as well as that
of its political, economical and social, cultural and religious organizations,
which would enable him to draw conclusions that also include an examination of
the situation, using the approaches imperatively stated in Article 30 of the
Universal Declaration of Human Rights and in Articles XVIII and XXXIII of the
American Declaration of the Rights and Duties of Man.
12.
For all those reasons, and because it is not a question of hiding
anything but of achieving practical progress in this area—which is not
directly relevant to the maintenance of international peace and security, nor
does it exclude “regional action” pursuant to Article 52 of the United
Nations Charter—it must be considered in the light of the resolutions adopted
by the UN Commission on Human Rights, the in loco observation visit of
the Independent Expert appointed thereby, his first report presented in Geneva,
and the foreseeable steps for the accomplishment of his mission, in a matter
that although possibly in the nature of “regional action” cannot involve
parallel action, nor give rise to the possibility of conflicting opinions; for
this would affect the credibility and prestige of international for a and would
impair the most legitimate interests of the Republic of Paraguay and the
protection of its own image in international thinking.
This is one more reason that excludes the flexible and open possibility
of “a mutually convenient date in the near future” for the “in
loco observation visit” within so short a period as the one between the
Note and the date when the next regular meeting of the Inter-American Commission
on Human Rights starts. Accordingly, this is not a question an arbitrary refusal nor
an obstruction, but of considerations that when duly shared by the Commission
will permit greater success and efficacy in handling a matter of common
interest, in which there I no room for pressure or haste—particularly in view
of the satisfactory treatment it is being given in the World Forum, which
observes the rules from which those of regional application are derived.
And by doing so an organ of the UN, it performs, on behalf of that
organization, the role of “serving as a CENTER THAT HARMONIZES the efforts of
the nations to achieve those common objectives,” as stated in Article 1,
paragraph 4 of the World Organization’s Charter, quoted previously.
Please
accept the renewed assurances of my highest consideration.
Carlos Augusto Saldivar
Minister
of Foreign Affairs
2.
IACHAR reply to the communication from the Government of Paraguay.
July
1, 1987
Excellency:
I
have the honor of replying to Your Excellency’s note of June 2, 1987 (D/M Nº
143), in which the Government of Paraguay announces its decision not to set a
date for the Commission to Visit the country.
The two reasons cited for this decision are: the close relationship
Paraguay currently maintains with the United Nations Commission on Human Rights;
and the brevity of the period granted by the Commission for establishment of a
mutually convenient date.
In
regard to the first reason, the Government of Paraguay states that it “has
made a special effort … to maintain close relations with the United Nations
and with the Commission on Human Rights headquartered in Geneva” on the
premise that in so doing it “obeys the legal regime of international fora”
(page 4, paragraph 5 of the note). The
note to which I am replying here further states that, pursuant to the
regulations of the United Nations, Paraguay reached an agreement with the
agency’s Commission for an “independent exert” to visit the country, and
that the visit in question took place in June of 1986.
The
Government of Paraguay justifies its decision by saying that human rights are
described in the United National Charter as universal and therefore fall within
the purview of that organization, “or, more precisely, that the United Nations
Commission on Human Rights—thereby entitling the latter a priority, if not
exclusive jurisdiction” (page 5 and 6 of the note).
It is the Government’s opinion that not to acknowledge such priority
would constitute “an onerous and unnecessary duplication, one that would be
potentially dangerous, both to the prestige of the United Nations and to the
legitimate interests of states and governments, since conflicting reports might
result … which, even though dealing with the same specific matters, give rise
to different conclusions because they were examined in different fora…”
Accordingly,
insofar as setting a date for the visit to take place is concerned, “the chief
problem is specifically (sic) the duality described above in connection with the
major international instruments currently in effect concerning human rights.”
Although
the extensive arguments adduced by the Government warrant numerous comments of a
doctrinary nature, the Commission will confine its comments to the issues that
have a direct effect on the activities performed by the IACHR on behalf OAS
member countries.
The
Commission is impelled to point out an essential flaw in the arguments adduced
by the Paraguayan Government, and that is the Government’s belief that the
Inter-American Commission cannot, should not, or will not issue an opinion on
the situation of human rights in Paraguay so long as one of the United Nations
agencies is addressing this issue.
Such
and argument is counter to the regional and universal standards concerning human
rights, according to which such incompatibility could obtain solely in respect
to individual cases—an even then, only in cases involving states that have
recognized the authority of the United Nations Committee under circumstances
described in the Civil and Political Rights Covenant.
Obviously, this is not the case of Paraguay.
The
consideration of general situations that call for special reports, such as the
one which the Commission is preparing on Paraguay, is a mandate emanating from
the OAS Charter and the Commission’s statutes.
Accordingly, the Commission is not only entitled to express an opinion on
this subject: it is obliged to do so. And
the Commission has been complying with that obligation in respect to Paraguay
for a long time, as Your Excellency is aware.
The
Government of Paraguay has never contended the existence of incompatibility or
priority in connection with pronouncements by United National bodies.
Furthermore, this situation has already been resolved.
So much so that the Commission has prepared special reports on a number
of member states at the same time when a special rapporteur from the United
Nations has been working on the same country.
The Commission will therefore continue to express opinions about the
status of human rights in Paraguay regardless of whether the same matter is
being addressed by a United Nations organ so long as the provisions of the
Charter remain in force.
The
situation described cannot have escaped the attention of Your Excellency.
It is surprising, then, that the Government refuses to set a date,
adducing the putative “duality” of procedures.
It is even more surprising to have argument invoked in the name of the
“responsible nature,” “credibility and prestige of international fora.”
The lack of a basis for the premises presented by the Government of
Paraguay compels the Commission to believe that his new refusal is not
predicated on reasons, bus is simply on more pretext to prevent toe Commission
from performing its duty.
Pursuant
to its obligations under the OAS Charter and in order to have additional
criteria as a basis for carrying out its mandate, the Inter-American Commission
has repeatedly asked the Government of Paraguay to stipulate a date for an
on-site visit to observe the situation of human rights in that country.
As Your Excellency undoubtedly knows, next September 12 will mark the
tenth year since the Government of Paraguay first made the commitment with the
Inter-American Commission to determine a date for that visit.
Sine that time, the General Assembly and the Commission have repeatedly
requested that the Paraguayan Government set the date.
In addition to the Commission’s Specific notes for this purpose, its
annual report to the Assembly has described that situation year after year.
Your
Excellency’s Government is familiar with all these details.
The situation is, moreover, public knowledge throughout the hemisphere.
That is why it is so difficult to understand why the Government of
Paraguay claims at this stage, in three different places in its note (pages 2, 7
and 10) that the deadline given by the Commission for agreement on a mutually
accepted date does not allow enough time to prepare for the visit.
The
Commission attributes particular importance to the interest evinced by the
Government of Paraguay in defending the “responsible nature of international
fora.” The Inter-American Commission has made unswerving efforts to
ensure that its pronouncements are as responsible, objective and impartial as
required by the delicate task of promoting and protecting human rights.
It its twenty-eight years of endeavors, the Inter-American Commission has
confirmed its belief that one of the most important factors that guarantees
responsible, objective and impartial pronouncements on its part is loyal and
hones cooperation from the governments.
To
argue that the delay is too short after ten years of continuous requests is not
relevant in the opinion of the Commission.
To adduce the preeminence of the universal forum over the regional one in
the matter of human rights contravenes the norms of the United Nations, the
Organization of American states, and the consistent practice of the human rights
agencies of both organizations.
Accept,
Excellency, the assurances of my highest consideration.
Gilda
M.C.C. de Russomano
His
Excellency
Carlos
August Saldivar
Minister
of Foreign Affairs
Asunción,
Paraguay
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