Comunicación del 3 de agosto de 1988 del Gobierno de Estados Unidos.
August 3, 1988
Dr. Charles Moyer
Inter American Court of Human Rights
San Jose, Costa Rica
Re: Advisory Opinion Request of the Government of Colombia
Dear Dr. Moyer:
In accordance with the wishes of the Court, the United States has the honor to submit the following responses to questions presented by the Court at its hearing July 20, 1988, in the above-referenced case, and to offer brief further comment on the issues raised in the case.
1. How did the United States vote on the Proclamation of Teheran at the International Conference on Human Rights on May 13, 1968?
-- The United states voted in favor. The United States notes in connection with the Court's query regarding the "mandatory status" of the Universal Declaration, that in the United States' view the Proclamation preserves the distinction between the legal obligations of the charter of the United Nations (which is a binding treaty) and the moral and political obligations of the Universal Declaration (which is a non binding declaration).
2. How has the United States voted on human rights resolutions referring to the Universal Declaration of Human Rights in the United Nations?
-- There have been numerous resolutions in the United Nations referring to the Universal Declaration of Human Rights since its adoption in 1948. The United States has voted in the affirmative, in the negative, and has abstained on these resolutions. The United States' vote has depended on numerous factors specific to the particular resolution in question. The binding effect or "mandatory status" of the Declaration has not been an issue affecting the United States' vote.
The plain language of the U.N. resolutions adopted over the years reflects the status of the Universal Declaration as an instrument that is morally and politically "binding" and a source of fundamental principles rather than legally binding. Over the years, resolutions have repeated such language as: "a common standard of achievement for all peoples and all nations" (e.g., 17 U.N.G.A. res. 1775, U.N. Doc. A/5217 (1962); 26 U.N.G.A. Res. 2860, U:N: doc. A/8429 (1971); "has been and rightly continues to be a fundamental source of inspiration for national and international efforts for the protection and promotion of human rights and fundamental freedoms" (e.g., 32 U.N.G.A. Res. 32/123, U.N. Doc. A/32/45 (1977) ); "importance of the Universal Declaration of Human Rights... in promoting respect for and observance of human rights and fundamental freedoms"; (e.g., 39 U.N.G.A,. Res. 39/144, U.N. Doc. A/39/711 (1984) ); "guided by .. the principles and provisions of the Universal Declaration", (30 U.N.H.R.C. Res. 19, U.N. Doc. E/5464, E/CN.4/1154 (1974) ). In the view of the United States, U.N. resolutions have consistently recognized the distinction between the juridical status of the Declaration and other human rights instruments.
3. What were the texts of the draft resolutions on Cuba submitted by the United States to the United Nations Human Rights Commission in 1987 and 1988?
-- The texts of the draft resolutions submitted by the United States are attached for the information of the Court. Neither resolution was voted on or adopted by the Commission. The United States notes that the language of the 1987 draft resolution refers to "the obligation of all States Members of the United Nations to respect and protect human rights and fundamental freedoms in accordance with the Universal Declaration of Human Rights". This language contrasts with the subsequent paragraph, which refers to the "obligation, under the Charter of the United Nations, to promote respect for, and observance of, human rights and fundamental freedoms". The term "under" (referring to the Charter) implies binding legal obligations, whereas the terms "in accordance" (referring to the Declaration) imply less formal obligations, or obligations deriving from a different source. In the view of the United States the draft resolutions preserve the distinction between the legally binding obligations of the U.N. Charter, and the moral and political "obligations" of the Declaration.
4. Did the International Court of Justice find in the Case Concerning U.S. Diplomatic and Consular Staff in Teheran (U.S. v. Iran) that the Universal Declaration had become a source of binding international law?
-- In the view of the United States, the International Court of Justice did not rule that the Universal Declaration is binding on states in the case concerning the U.S. diplomatic hostages in Iran. In that case the Court made only a single reference to the Universal Declaration at the end of a long and carefully reasoned opinion that focused on Iranian legal obligations under international law. The Court referred to the "incompatibility" of the Iranian actions in holding U.S. diplomatic personnel hostage with the "fundamental principles" of the Universal Declaration. See para. 91. The United States believes that the Court's language is fully consistent with a view that the principles of the Universal Declaration are not legally binding. The Court's statement comes at the end of a detailed exposition of Iran's binding legal obligations under various treaties undertaken bilaterally with the United States and multilaterally, and after its holding that Iran's actions violated these obligations. Rather than implying the Court's view that the Declaration is binding, the United States believes that the Court's obiter dictum with regard to the Declaration implies that the Court is not prepared to hold that the Declaration is legally binding.
The United States takes this opportunity to note once more that the question of the precise normative status of non-binding instruments such as the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights are very difficult and complex ones requiring an examination of many of the sources of international law, i.e., custom, jus cogens, etc. The view of the United States is that the Court does not have the jurisdiction under Article 64 to issue such an opinion unless the instrument in question is a "treaty".
The United States also notes, with respect to the Universal Declaration of Human Rights, that while the relationship of the Universal Declaration's moral and political "obligations" to the legal obligations of the U.N. Charter is similar to that of the American Declaration of the Rights and Duties of Man to the O.A.S. Charter, the comparison is not exact and is useful only for illustration.
Office of the Assistant Legal Adviser for
Human Rights and Refugees
Situation of human rights and fundamental freedoms in Cuba
323. On 24 February 1987, the United States of America submitted a draft resolution (E/CN.4/1987/L.29), reading as follows:
"Situation of human rights and fundamental freedoms in Cuba
"The Commission on Human Rights,
"Aware of its responsibility to promote and encourage respect for human rights and fundamental freedoms and to remain vigilant with regard to violations of human rights wherever they occur,
"Noting the obligation of all States Members of the United Nations to respect and protect human rights and fundamental freedoms in accordance with the Universal Declaration of Human Rights,
"Noting also its resolution 1986/56 of 13 March 1986, in which it reminded States of their obligation, under the Charter of the United Nations, to promote universal respect for, and observance of, human rights and fundamental freedoms,
"Taking into account the relevant General Assembly resolutions concerning the further promotion of human rights, including resolutions 39/144 of 14 December 1984 and 40/123 of 13 December 1985 on national institutions for the promotion and protection of human rights,
"Recalling its resolution 1986/32 of 11 March 1986, in which it reaffirmed the essential role of an independent and impartial judiciary and independent lawyers in promoting and protecting human rights and fundamental freedoms,
"Further recalling its resolution 1986/30 of 11 March 1986 on the right of everyone to leave any country, including his own, and to return to his country.
"Taking note of the reports of the Inter American Commission on Human Rights of the Organization of American States, which has found evidence of substantial human rights abuses in Cuba,
"Concerned by the numerous and credible reports that large numbers of political prisoners remain in Cuba and are held under harsh conditions,
"Aware of the alleged denial to human rights activists of access to effective and independent legal defense counsel,
"Noting with concern that very large numbers of Cubans have left their country and that many cite the systematic violation of human rights and fundamental freedoms as a major reason for leaving Cuba,
"1. Expresses deep concern over the specific and detailed allegations of serious human rights violations in Cuba, in particular those related to the right to freedom of expression, the right to freedom of association, the right to liberty and security of person and freedom from arbitrary arrest or detention, the right to a fair trial, the right to freedom of thought, conscience and religion, and the right of individuals to leave their country and to return to it;
"2. Urges the Government of Cuba to ensure that al individuals within its territory and subject to its jurisdiction are guaranteed effective enjoyment of basic human rights and fundamental freedoms;
"3. Appeals to the Government of Cuba to allow any Cuban who might wish to leave or to return to Cuba to do so without hindrance, especially in those cases involving the reunification of families;
"4. Decides to consider, at its forty-fourth session, the situation of human rights and fundamental freedoms in Cuba under the agenda item entitled 'Question of the violation of human rights and fundamental freedoms in any part of the world, with particular reference to colonial and other dependent countries and territories'."
324. At the 55th meeting, on 11 March 1987, the representative of the United States of America introduced a revised draft resolution (E/CN.4/1987/L.29/Rev.1), which differed from the original draft resolution in the following way:
(a) At the end of operative paragraph 1, the word "and" was inserted before the words "the right to freedom of thought" and the words "and the right of individuals to leave their country and to return to it," were deleted;
(b) In operative paragraph 3, the words "release all those detained for their political views and activities and to" were added after the words "Appeals to the Government of Cuba to".
325. At the same meeting, the representative of India moved, under rule 65, paragraph 2, of the rules of procedure of the functional commissions of the Economic and Social Council, that the Commission take no decision on draft resolution E/CN.4/1987/L.29/Rev.1.
326. Statements on the motion were made by the representatives of Algeria, Australia, Brazil, Bulgaria, the Byelorussian Soviet Socialist Republic, Costa Rica, the German Democratic Republic, Germany, Federal Republic of Nicaragua, Norway, the United Kingdom of Great Britain and Northern Ireland and the United States of America.
327. At the same meeting, the representative of Bulgaria moved, under rule 50 of the rules of procedure of the functional commissions of the Economic and Social Council, the closure of the debate on the motion by India.
(c) In operative paragraph 7, the words "insurgent forces" were replaced by the words "Frente Farabundo Martí para la Liberación Nacional - Frente Democrático Revolucionario",
319. The attention of the Commission was drawn to an estimate of the administrative and programme budget implications (E/CN.4/1988/L.99) of draft resolution E/CN.4/1988/L.24. 1/
320. The draft resolution, as orally revised, was adopted without a vote.
321. For the text as adopted, see chapter II, section A, resolution 1988/65.
Situation of human rights and fundamental freedoms in Cuba
322. In connection with this matter, the Commission had before it the following documents: E/CN.4/1988/54,E/CN.4/1988/61. E/CN.4/1988/77.
323. On 29 February 1988, a draft resolution (E/CN.4/1988/L.26) was submitted by the United States of America, reading as follows:
"Situation of human rights and fundamental freedoms in Cuba
"The Commission on Human Rights
"Aware of its responsibility to promote and encourage respect for human rights and fundamental freedoms,
"Recalling Economic and Social Council resolution 1235 (XLII) of 6 June 1967, in which the Council decided that the Commission on Human Rights might, in appropriate cases, and after careful consideration of the information made available to it, make a thorough study of situations which revealed a consistent pattern of violations of human rights,
"Aware that more than a million exiles and refugees, among them former political prisoners, have left Cuba, many giving as the major reason for leaving systematic abuses of basic human rights and fundamental freedoms,
"Aware also of reports prepared by various non-governmental organizations which have brought to public attention consistent and credible allegations of serious violations of human rights in Cuba, including arbitrary arrests and lengthy detention, forced labor, maltreatment and torture of political prisoners in violation of international norms,
"Noting the series of reports by the Inter American Commission on Human Rights of the Organization of American States, such as its report of 1986-1987 in which it stated that in Cuba "in the field of civil and political rights, there continues to be a lack of effective resources for individuals to assert their rights vis-à-vis the State",
"Further aware that the European Parliament, in a resolution adopted on 29 October 1987, called upon the Commission on Human Rights to consider the human rights situation in Cuba and noted that the Government of Cuba held large numbers of political prisoners in prisons, camps or psychiatric hospitals for attempting to defend or practice their right to freedom of expression, association or belief,
"Noting also that human rights activists inside Cuba report continuing and widespread violations of a broad range of basic human rights and fundamental freedoms, including the execution of persona charged with political offenses,
"Notes further that the International Committee of the Red Cross does not have access to Cuba's prisons consistent with the Committee's normal procedures and practices,
"Noting favorably, however, that over the past year the Government of Cuba has released some political prisoners, indicated that it might release more such prisoners in 1988 and for the first time shown a limited toleration of domestic human rights organizations,
"1. Expresses concern over allegations of violations of basic human rights and fundamental freedoms in Cuba;
"2. Urges the Cuban authorities to permit the access of the International Committee of the Red Cross to Cuban prisons consistent with the Committee's normal procedures and practices;
"3. Requests the Secretary-General to bring the present resolution to the attention of the Government of Cuba, invite it to provide information concerning the allegations referred to therein and report to the Commission at its forty-fifth session on the results of his efforts in that regard;
"4. Decides to study carefully at its forty-fifth session the evolution of the situation of human rights and fundamental freedoms in Cuba under the agenda item entitled 'Question of the violation of human rights and fundamental freedoms in any part of the world, with particular reference to colonial and other dependent countries and territories'."
324. At the 54th meeting, on 9 March 1988, the representative of Colombia read out a draft decision (E/CN.4/1988/L.103), sponsored by Argentina, Colombia, Mexico and Peru.
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