Center For Human Rights and Humanitarian Law
The complaint presented to the Inter-American Commission on Human Rights on May 23,
in English, of which the pertinent parts state the following:
In the June, 1982, issue of the Soberania magazine an article appeared
Macias of receiving money from the United States Central Intelligence Agency and thus
implying that Mr. Macias was engaged in activities detrimental to the Government of
Mr. Macias was born in Nicaragua and his family has lived there for many
He has been a public servant to the people of Nicaragua from 1979 to 1982, in coalition with
the Sandinista Government and although not employed in that capacity at the time when the
article appeared, still felt his career to be that of a public servant. Mr. Macias still feels his
profession to be that of a public servant.
Mr. Macias has never had any covert, or otherwise, dealings with the United States
Central Intelligence Agency, and so, to protect his career interest and to disassociate himself
from a falsehood he initiated a suit for malicious defamation against the Soberania
Trial was set for, and began on, June 18, 1982.
At the trial the editor of the Soberania magazine, Freddy Balzan, failed
to appear even
though he had been personally summoned (the magazine alleging that he was out of the country
at an unstated location). The summons was then amended to evoke the presence in the court
of the Advisory Board of the magazine, which consisted of three people, Javier Chamorro,
Placido Erdozia and Uriel Molina; they also failed to appear in court.
Instead, the editor, Freddy Balzan, now appeared in court and answered the
saying that the author of the accusing article, one David Armstrong--a North American
writer--had documentation proving the truthfulness of the article's contentions. However, such
documentation was never produced, either by the editor or by David Armstrong. Moreover,
subsequent events tend to detract from the validity of the editor's contentions.
There are only two alleged witnesses to the existence of such documentation: 1)
editor, Freddy Balzan, and 2) the North American writer, David Armstrong.
Later in 1982, Mr. Macias' wife, Geraldine Macias, was in the United States on
related to her work and, having a natural concern for her husband, sought out and found the
North American author by the name of David Armstrong. Mr. Armstrong said that he did not
write the accusing article and had no knowledge whatsoever of Mr. Macias' activities, providing
a written statement stating as much.
The credibility of the other witness, Freddy Balzan, is also suspect, because of his
connection with the Sandinista Government, i.e., he works for the Ministry of the Interior. Such
employment is suspect because denial of due process by the Sandinista Government amounts
to an affirmation by that government of the accusations made in the magazine's article.
The trial was stopped at this point because the judge, Felix Trejos, had lost Mr.
petition. Events, to be described, caused Mr. Macias to flee the country of Nicaragua, so
information concerning the trial proceedings is now obtained from Mr. Macias' Nicaraguan
lawyer, Mr. Salomon Calvo.
Information from Mr. Calvo indicates that the petition has been resubmitted and
is presently pending for the purpose of allowing the Sandinista Government the time needed to
write and enact new defamation laws so that the court may follow the latest legislative decree.
Mr. Macias' filed suit under the then current (and still current) laws of defamation in Nicaragua.
Mr. Macias left Nicaragua because he feared for his life. Events which caused
fears evolved over time, making a short historical sketch necessary.
Mr. Macias was first a member and then President of the Christian Democrat
party in Nicaragua from 1970 to 1982, thus supporting a position in opposition to the previous
ruling party, the Somocistas.
When the Sandinista Government became the ruling political party in Nicaragua on
20, 1979, Mr. Macias, as a member of the coalition government, served first as a Vice-Minister
of Social Welfare and later as Vice-Minister of Labor.
Under the procedures for appointment to ministerial position in Nicaragua, each
resigns his office in December of each year and is customarily reappointed to his office the
following January. Mr. Macias was the only minister not reappointed to his office in January
of 1982. Trying to ascertain the reason for non-reappointment, Mr. Macias could obtain no
official information, but was unofficially (verbally) told that his failure to obtain reappointment
was due to his friendly relationship with the United States Embassy. Mr. Macias visited the
United States Embassy in a ministerial capacity or as a representative of his political party, but
contends no involvement in any action or plan to bring harm to the Nicaraguan Government.
Since leaving government service and until the time he left Nicaragua, Mr. Macias
worked, without salary, as a director of the national 4-H Club in Managua, Nicaragua, and it
was during this period that he began to fear for his life.
During this period and in addition to the accusing article in the Soberania
newspaper articles by government affiliated press, sought by innuendo to label Mr. Macias as
an enemy of the State of Nicaragua. Television media subjected Mr. Macias to even other
In this situation, given the history of violence and street gang justice in Nicaragua,
upon receiving a warning from a person working for the Security Police to the effect that Mr.
Macias was considered to be a dangerous person who should be eliminated, Mr. Macias felt it
was better to leave the country, than to die. He therefore sought and received refuge with the
Venezuelan Embassy, through whose offices, and because his wife is a United States citizen,
he came to the United States as a political exile.
Because such events forced him into exile, Mr. Macias was forced to abandon his
proceedings against the Soberania magazine. Mr. Macias left Nicaragua under the
of Luis Herrera, the President of Venezuela and so he was given permission to leave the country
and told that there were no charges against him.
Such assurances have not allayed Mr. Macias' fears, so he is reluctant to return to
Nicaragua to direct and press his defamation claim. Given his previous treatment and the fact
that the editor of the Soberania magazine is intimately connected with the Sandinista
Government, i.e. Mr. Balzan works for the Ministry of Interior, Mr. Macias feels that even
though his trial on the defamation suit is still pending, he is without the capacity to exhaust
domestic remedies further and must seek a higher authority to vindicate his honor and
Mr. Macias has standing to bring this action before the Inter-American
Human Rights because the Nicaraguan Government is a ratifier of the American Convention
on Human Rights as of 25 September 1979.
I. THE HUMAN RIGHTS INVOLVED, AS WE PERCEIVE THEM
Every person may resort to the courts to insure respect for his legal rights. To deny
access to the courts is to prevent the attainment of remedy without a trial on the merits and
effectively constitutes a violation of the Rights to Judicial Protection, guaranteed by Article 25
of the Inter-American Human Rights Convention. Since it is impossible for Mr.
Macias to avail himself of this guaranteed right under the
current de facto Government of Nicaragua (see Domestic Remedies Brief), we submit
only judicial forum remaining open to him is the Inter-American Human Rights Court, because
it is the only trial organ left which is authorized by the Inter-American Human Rights
Convention to enforce the application of the Convention for the purpose of seeking a remedy.
In the case of Mr. Macias, we are not just seeking the results enunciated in Article
of the Convention which involves the Commission's report. Instead we are seeking the right
of Mr. Macias to have a fair trial, and to legally reply to the defamatory false allegation made
against him, and these rights are guaranteed to Mr. Macias by Articles 8 and 14 of the
Inter-American Human Rights Convention.
II. ARGUMENT IN THE CONTEXT OF THE INTER-AMERICAN
Article 61(1) of the Convention states that "only the State Parties and the
shall have the right to submit a case to the Court." By such explicit wording the Convention
excludes a private individual from submitting his/her petition directly to the Courts, thus the
Commission becomes an obstacle, rather then a conduit for the individual seeking access to law.
Article 61(2) compounds this obstacle by requiring completion of the time
procedures set forth in Articles 48 to 50, before the Commission may even consider submitting
the case to the Court.
Article 62(3) further increases the height of the obstacle by requiring recognition
state party of the competency of the Court before the Court will accept jurisdiction.
Such obstacles placed before an individual victim of injustice excites wonder as to
whether the Convention was written to protect human rights or human rights violators. (This
is surely not within the spirit of concern for victims expressed in the opinion of the
Inter-American Human Rights Court, see footnote 5).
It is this last obstacle 62(3) which can be most abused because it is inconsistent
internal logic of the Convention. It seems illogical to the point of fantasy to think that a
government which is intentionally violating human rights will voluntarily submit to the
jurisdiction of a court that would try them for human rights violations; it would be like asking
a criminal for his/her permission to accuse him/her of a crime.
In addition, such an obstacle introduces unnecessary and unneeded redundancy
it can be assumed that the signers and ratifiers of the Convention knew that it was individual
human rights that they were protecting by their consensual ratification for the Convention, and
such knowledge leads conclusively to the function of the Inter-American Human Rights Court,
announced by that Court as an "autonomous institution whose purpose is the application and
interpretation of the American Convention of Human Rights" (Advisory Opinion No. OC-2/82,
September 24, 1982, paragraph 13), and the scope of the Court's competency is to deal with
matters relating to the fulfillment of the commitment of the State parties to the Convention.
If a State can withhold jurisdiction of the Court by not consenting to that
when it is accused by one of its own citizens of violating his human rights, then the whole
Convention becomes a rather tragic joke because it is exceedingly unlikely that governments
of evil intent would willingly subject themselves to a judicial scrutiny of their malevolent acts.
Such a condition means that the Convention represents no law at all, and thus victims of human
rights violations are left to their own devices to correct the ill which seeks to destroy them.
The overall import of the Convention is to protect human rights (such import was
sole purpose of Resolution XXX1 of the 9th International Conference of American States,
Bogota, Colombia, March 30, 1948, which recommended the preparation of the draft status
creating the Inter-American Court to guarantee the Rights of Man). It is difficult to see how
human rights are protected by the placement of so many obstacles between the victim of human
rights abuses and a Court whose very nature places it as a legal forum of last resort, where at
least, the law abiding behavior of an individual can be vindicated.
a. What would be considered an abuse of discretion:
While we have great respect for the work of the Inter-American Human Rights
Convention and can only applaud its commitments to human rights notions whose pragmatic
realities are not quite grasped by far too many, we feel that the Inter-American Human Rights
Convention represents the only remaining consensual law operating in the Central American
region pertaining to human rights.
And since Mr. Macias seeks of the Inter-American Human Rights Convention his
guaranteed right to a fair trial, we feel that if the Commission does not exercise its discretionary
authority to submit Mr. Macias' claim to the Inter-American Human Rights Court, then he will
effectively and finally be denied a right to a fair trial by the only law still existing in the area.
We would be compelled to view such an act as an abuse of discretion, because:
b) Reasons which Preclude an Administrative Settlement:
Settlement would not be possible by this method because:
An international tribunal has the right to make its own determination of whether
domestic remedies have been exhausted, if there are no procedures available for
determination by an authoritative tribunal of the responsive government. We know
of no procedures available in Nicaragua at the time this petition was filed which
specifically addressed the question of whether domestic remedies have been exhausted,
nor would we feel that such "self-policing" would have value in cases such as ours,
where government motives are suspect.
Since the present Government of Nicaragua is without legal authority, since it is
unelected and thus in violation of Article 21(3) of the Universal Declaration of Human
Rights, it is arguable that even if such procedures
were in effect, they would not be
legal, and proving their existence is the burden of the government.
6. The Injury Caused is in Violation of an International Agreement, i.e.,
Inter-American Human Rights Commission
When conduct causing injury to an alien is due to violation of international
it is wrongful under international law. The injury
is the denial of a fair trial and the
international agreement is the Inter-American Human Rights Convention, ratified by
Nicaragua in September 1979.
IV. THE APPLICABILITY OF INTERNATIONAL LAW PERTAINING TO
THE CONCEPT OF A CITIZEN ALIENATED BY HIS OWN GOVERNMENT
When a person is forced, or feels compelled by force to leave his own country,
becoming a stateless refugee, the human rights, which remain associated with the Stateless
Refugee can only find protection from
international instruments which purport to be
consensual law or from States politically disposed to help. For a stateless person to employ the
latter alternative is buit to add to the political turmoil which caused the reasons for his/her
statelessness. Whereas the invocation of protections guaranteed by international instruments
seeks a real solution to a problem unsolvable by rhethoric or ideology, in the most apolitical
manner possible and the most mutual forum available. Since a stateless person becomes by the very facts of his/her situation an alien from
his/her own country and can claim no other country as home, then his/her becomes the most
absolute of aliens, being alienated from all countries. To such an alien, all of the international
law pertaining to aliens must of necessity apply; and the country from which the stateless person
flees becomes by definition foreign to him/her.
In conclusion it seems possible to say that we have presented cogent reasons to
Commission which support our contention that the case of Edgard Macias should be adjudicated
by the Inter-American Human Rights Court. We fervently hope that these reasons find
credibility in the Commission's judgment because a citizen denied internationally guaranteed
rights in his own country is without hope of ever attaining such rights should an international
organization deny the exercise of these rights in the only remaining forum where the rights can
be secured by legal remedy. Such by definition is an abuse of discretion.
(Also, we feel that the techniques used by the Nicaraguan Government to discredit
Macias which our presented proofs attest to, are in and of themselves antithetical to a civilized
notion of human rights, and governments which employ such techniques have no claim to
membership in that group of states who by their ratification of the Convention indicate their
respect for human rights.) It seems reasonable that a government against whom such a charge
is made be given every opportunity to categorically refute the charges so that its position in the
World Community is clearly seen.
Settlement of this claim in an international legal forum safeguarded by customary
international law provides the best means to obtain the truth of the matter. We are content to
say that a reasoned opinion by the Inter-American Human Rights Court will constitute a
settlement between us. If the Nicaraguan Government places any value on the social and
economic respect accorded to those governments which abide by the law they have consented
to, then it should also be so content. 5. The government's response dated
October 11, l984 to the applicant's observations:
The Government of Nicaragua wishes to make the following observations on this
Since the American Convention on Human Rights permits the suspension of those
guarantees in exceptional cases, such as the situation in Nicaragua during the period to which
we have referred, how could this Honorable Commission then be competent to request a State
to honor those same guarantees, when, as we have stated, they were suspended in accordance
with the provisions of the legal instrument that created the Commission and gave it its powers?
If the Commission requires a State to comply strictly with those guarantees, when it has
suspended them in accordance with the Convention, and if the Commission takes up petitions
to that effect, from individuals, it is questioning the suspension, wrongly interpreting the
Convention, arrogating to itself a competence that it has not been given, and interfering in the
internal affairs of that State.
For the reasons set forth in the present note and in communication No. 160 of
8, l983, we ask the Commission to rule that Mr. Macias' petition is not receivable.
6. The observations of the complainant to the government response dated December
Paragraph (a) of the Nicaraguan government's observations
We find nothing in paragraph (a) which concerns itself with fact, but instead this statement
the Nicaraguan government appears to add to the reckless defamation of Mr. Macias by the
government by making further unsupported assertions libelous to his character. His objective
in coming to the United States was not for the purpose of "making propaganda" against the
Nicaraguan Government, nor has Mr. Macias "falsely expressed" the acts of persecution by that
government against him.
He came to the United States because the Government of Nicaragua slandered his
in the media, commissioned an agent in their employ to launch a discrediting campaign
against him and his wife, would not let him reply to the lies being said against him either in a
court of law or in the media, placed armed mobs around his home and the place of business of
his wife, and issued an unsupported arrest order against him.
Mr. Macias has supported these contentions by many lines of proof and is quite
to present these proofs to the highest court in the region, the Inter-American Human Rights
Court, as he has already done so before the Commission.
Perhaps what is most indicated by paragraph (a) is the modus operandi of the
powers which dictate to the de facto government of Nicaragua. What we see
occurring in this
paragraph is a rather childish attempt to deflect fact by mindless rhetoric and unsupported
innuendo, the exact pattern originally employed by the government to silence Mr. Macias and
those like him who have openly criticized the Ideologues' quest for power.
How does one comfort such a scheme except by presentation of the evidence,
have done. And how does one comment upon such an observation by the government that
would pretend to responsibility, except to say to that government: Don't try to blur reality by
saying that facts are propaganda, and don't insult intelligence by claiming insight into
psychological reasons behind Mr. Macias' quest for law.
Instead, address the proofs, for there is where the issue lies and will continue to lie
disproved. Perhaps it is fortunate that this new defamation of Mr. Macias by the Nicaraguan
Government comes in the written form of their October 11 observation. Because now the
Commission can judge for itself whether they, or any other citizen seeking serious inquiry of
the law should be answered by blatant, unsupported defamation.
Paragraph (b) of the Nicaraguan Government's observations:
We assume that in paragraph (b) of their observation the Nicaraguan Government
referring to their contentions that the editor of the Soberania magazine, Freddy Balzan,
work for the government, and that the magazine's defamation of Mr. Macias results solely from
a personality conflict presumed to exist between Freddy Balzan and Mr. Macias.
Besides the fact the Machiavellian rhetoric and strident tones of the magazine
mimic the police and morals of the ruling FSLN political party, we have presented four pieces
of proof indicating the government's connection to the magazine:
These proofs have not been refuted or even addressed. The Nicaraguan
made the same reply in the first letter to the Commission.
So that the government would know exactly what it had to do with this case we
exhaustively informed them of their involvement in the defamation of Mr. Macias in our
Exhaustion of Domestic Remedies Brief, submitted to this Commission on February 17,
wherein among other proofs showing government involvement (including the granting of
Political Asylum by the Venezuelan Government and the international law overtones of that act)
the four above mentioned proofs were particularly noted.
And so again we are subjected to this delaying tactic which we view as an ill
attempt to shift the burden of responsibility from the First Directorate where it belongs to the
expendable shoulders of Freddy Balzan. Such are the rewards of loyalty to this power elite.
Paragraph (c) of the Nicaraguan Government's observations
In this paragraph the Government of Nicaragua contends that Mr. Macias' cause of
action against the Soberania and his lawyer, Solomon Calvo.
As to how Mr. Calvo's negligence prevented this cause of action from prospering
nowhere mentioned and we are simply left with another example of an inane attempt by that
government to substitute accusation for fact.
Mr. Macias' negligence is attributed to his voluntarily leaving the country. Again,
facts of the case are not refuted or addressed, as if by magic they would disappear if no one
would talk about them, or more correctly, if attention to them could be diverted.
Again we addressed this very point in our Exhaustion of Domestic Remedies
which the government appears incapable of answering on the merits. We add nothing new to
what was stated in the brief, but simply reiterate what was exhaustively detailed therein:
The facts which caused Mr. Macias to flee his ancestral homeland were not the
of negligent errors on his part, which it is alleged he now seeks to use for his own benefit.
They are real occurrences which came about because Mr. Macias made a good
attempt to solve a political problem in a lawful manner. Such an attempt, after the terrible
bloodshed which has disrupted Nicaragua for so long, was no less than a surviving pragmatic
effort to substitute law for violence.
That the attempt was not with such unmitigated deceit and intolerance speaks
to the other nations of the Western Hemisphere who may yet, to their dismay, see their own
genuine leanings towards democracy stolen from them in the moment of their greatest
vulnerability, as is indeed the case in Nicaragua.
Paragraph (d) of the Nicaraguan Government's observations
The gist of this paragraph seems to be that the Nicaraguan Government wishes to
suggest that it can escape responsibility for its actions by claiming exemption from Convention
requirements by invocation of Article 27(1) of the Inter-American Human Rights Convention
due to the State of Emergency. We note in passing that during the entire year and a half that this
case has been in litigation, this is the first time that the Nicaraguan Government has raised this
point, and they do not now raise it in a manner which definitely states that the rights of citizens
granted by the Convention were specifically suspended in the case of Edgard Macias.
They merely raise the issue so as to give themselves a way out should it be
shown that the human rights guarantees established by their legislation (which incorporated into
their Fundamental Statute the Inter-American Human Rights Convention) were not given to
Edgard Macias, and we believe that such has been conclusively shown by the proofs we have
already submitted to this Commission.
Hence, an attempt to invoke Article 27(1) now merely proves that they cannot and
not deal with this matter on the merits, and therefore amounts to an admission of guilt.
Further, we would specifically and formally request of this Commission the alleged
correspondence between itself and the Nicaraguan Government relating to this suspension of
human rights guarantees due to the State of Emergency, so that we may know the specificity of
their contents and the exact nature of the exigencies which the government claims existed when
the armed guards were placed around his home and her place of business, and when the
unsupportable arrest order was issued against him; and the relationship of such exigencies to
such behavior by a government.
But let us examine the contention of the Nicaraguan Government as relates to
27(1) of the Convention. Article 27(2) of the Convention provides the exceptions to allowing
a State to claim a State of Emergency when suspending human rights.
We note that the right to a Juridical personality is one of the exceptions to Article
which can never be violated for any reason. We assume that the right to a Juridical personality
means the same thing to the Commission as it does to us, i.e. the right of a person to recognition
before the law, which is clearly expressed in Article 27(2) which states: "The foregoing
provision (Article 27(1) does not authorize any suspension of the ... Judicial guarantees essential
for the protection of such rights."
And it will be recalled that the very essence of Mr. Macias' complaint is that access
law has been denied to him by the acts of the Government of Nicaragua, a point repeatedly
proved by the evidence we have submitted and the interpretations of customary international
law which are cited in our briefs submitted to this Commission on that very point, which again
has not been addressed on the merits by the Government of Nicaragua.
We also note that Article 9 of the Convention, i.e., freedom from ex post facto
another exception which can never be violated for any reason. And as already pointed out in
our original petition and our briefs: a person suffers from ex post facto laws when a civil trial
on defamation is postponed for the reason of allowing the government to rewrite the laws of
defamation, whether or not such new laws ever appear.
We also note that Article 23, the right to participate in government, is another
which can never be violated for any reason. The whole reason for the attacks against Mr.
Macias by the Government of Nicaragua was to prevent Mr. Macias from participating in the
Government of Nicaragua because of his criticisms of that government's quest for unelected
We ask you, does a government defame a citizen and his wife in the media they
do they employ agents to discredit a citizen, do they close off access to courts or media, do they
place mobs around a citizen's home and the place of business of his wife, do they issue
unsupportable arrest orders, do they do all these things for any other reason then to silence this
citizen and if they achieve that silence, have they not prevented that citizen's participation in
We also note that Article 20 of the Convention, the right to a nationality is another
exception which can never be violated for any reasons. As we have pointed out in our response
to paragraph (a) of the Nicaraguan Government's observation, as well as in our original petition,
our domestic remedies brief, and our access to the Inter-American Human Rights Court brief,
Mr. Macias did not voluntarily leave his home in Nicaragua. He was forced out by the despotic
acts of the current de facto Government of Nicaragua, a common pattern observed
revolutionary democracies are usurped by left or right-wing dictators.
Thus, it is clearly evident that Mr. Macias' right to his nationality has effectively
taken from him, leaving him in the current status of a stateless person at the mercy of
international instruments and organizations, such as they are.
We also note that Article 12, Freedom of Conscience and Religion is another
which can never be violated for any reason. Mr. Macias was the President of the Christian
Democratic Party in Nicaragua, and as such as the principal spokesperson for a large segment
of the Nicaraguan political spectrum who profess, among other things, a belief in the Christian
Religion. Thus, an attempt to silence Mr. Macias is also an attempt to silence the Christian
principles which make up his own beliefs, as well as the beliefs of the large numbers of people
who elected him their spokesperson.
The atrocities committed by the FSLN against people holding religious beliefs in
Nicaragua is well known to this Commission (which if unacknowledged can be well delineated
should a need to do so arise) and support our contention that the attack on Mr. Macias, besides
being personally damaging to him, amounts to a attack on the Christian beliefs held by him and
so many others.
We also note that Article 4 a Right to Life is another exception which cannot be
for any reason. We ask you to consider what is intended when an arrest order without
foundation is issued against a citizen. Do these acts by the Nicaraguan Government which our
presented proofs attest to, constitute anything less than a threat to the life of Edgard and
And last but certainly not least, we note that Article 18, the Right to a Name is a
which cannot be violated for any reason. If a name has any other meaning than simply a
collection of letters bestowed upon a person, that other meaning is the reputation attached to the
person who bears the name. We have presented clear and convincing proof that the current
Government of Nicaragua sought with malice aforethought to defame the good name of Mr.
Macias and his wife Geraldine for the purpose of silencing his opposition to their quest for
power, unmindful of the proletariat they claim to represent, (unmindful because they have not
even consulted such proletariat before issuing decrees which so seriously affect them. Nor can
the current elections be deemed a genuine consultation since most of the opposition, like Mr.
Macias, are in forced exile).
Thus we have shown that whether or not the Government of Nicaragua seeks of
Commission dismissal of Mr. Macias' complaint by claiming a right to violate human rights as
per Article 27 (1) of the Convention, there are at least seven exceptions which clearly apply to
the case of Edgard Macias listed in Article 27 (2) alone. These exceptions are not to be violated
for any reason even in a State of Siege let alone a mere declaration of a self-styled emergency.
This being the case, we implore this Commission to consider the motivations behind such a
request from the government which knew well that these exceptions existed and were applicable
to the case of Edgard Macias.
7. The response of the Government of Nicaragua to the applicant's observations,
3, 1985, reiterating that it finds the Commission not competent to hear this case on the grounds
in its notes of August 8, 1983 and October 11, 1984.
8. The following observations of the Government of Nicaragua on Resolution No.
was transmitted to it:
First, it should be pointed out that the open attacks against the legitimacy and
representation of the Government of Nicaragua on pages 12, 18, 19, 28 and 33, among others,
in addition to constituting improper language the Commission should never have accepted,
clearly demonstrate the political interests that have prompted the filing of this suit and its
insertion into more extensive spheres with a view to discrediting the Government.
The Government of Nicaragua must also express its concern regarding the possible
damage that might result from the fact that the conclusions the Commission has arrived at are,
in some instances, founded on an analysis of certain rights that are suspendible rights in
emergency situations such as those currently prevailing in Nicaragua. Such a situation could
imply an unacceptable limitation on the exercise of the power of States in accordance with
article 27 of the Convention.
The observations expressed above notwithstanding, the Government of Nicaragua
wishes to set forth the following views:
Nicaragua regrets that the Commission has not taken the communications
case into consideration, inasmuch as they amply demonstrated that no responsibility could be
attributed to Nicaragua with respect to a distinctly particular situation. Nor was evidence taken
into account that the complainant had not had recourse to domestic proceedings and that they
had therefore not been exhausted.
The Commission notes as grounds for its resolution the assumption that the
was made "in agreement and in collaboration with the Government of Nicaragua." In order to
support this affirmation, it points out that the State of Emergency previously decreed in
Nicaragua "determines that the publication of news, opinions or commentaries is not possible
without the express approval of that Government." It is consequently concluded that "the
publication...necessarily took place with the consent of the Government of Nicaragua."
The Government of Nicaragua wishes to establish clearly that the international
Soberanía is not subject to limitations on its contents, inasmuch as it is not a
publication but rather an international publication linked with the Tribunal Anti-Imperialista
de Nuestra América, whose editorial staff is made up of persons from various parts
of the world.
Despite this not being the case, other points could be made against the
statement: It is unacceptable from every standpoint to assume that the Government of
Nicaragua can be responsible for, or be "in agreement" with, any unofficial publication
circulating in the country. A conclusion of this kind could create a totally unacceptable
precedent for the states parties to the Convention. According to this interpretation, the
imposition of limitations on the right of freedom of expression would necessarily imply, in
emergency situations, the agreement and concordance of governments that grant this right with
all opinions or publications appearing in the written or oral press.
It is easy to see that the Government of Nicaragua could never be "in agreement"
many of the reports, articles and opinions that appeared during that time in the newspaper
Prensa and other media that contained attacks against the Revolution or openly
positions of the United States Government. As in the case of any government in the world, its
responsibility extends only to publications that have been expressly authorized to represent the
official opinion of the Government, a situation that does not apply in the case of the
international magazine Soberanía.
The Commission itself has recognized that "no legal tie exists" that links it to my
With reference to the restraint of Mr. Calvo Arrieta's freedom during the time
in the resolution, the Government of Nicaragua cannot accept that this has constituted a "means
of harassment" aimed at preventing his carrying out his activities as representative of the
claimant in his damages and slander suit. The contradiction should be pointed out between this
affirmation and the accusation presented before the Commission in which not only is it not
mentioned that the arrest took place for that purpose but it is openly stated that the "only reason
for his arrest is his work as a correspondent in Nicaragua for the Costa Rican broadcasting
station Radio Impacto." (Case 9484)
In referring to the filing of the damage and slander suit, the Commission uses the
"defendant" to designate Mr. Calvo Arrieta's activities (Page 476). On this point it should be
clarified that, given the positions of the parties involved in the suit, the complainant was
functioning as a "plaintiff" and not as a "defendant."
This distinction is of fundamental importance, since in private suits the party who
initiates the action is the plaintiff, a circumstance that does not appear to have occurred in this
case. A diligent attitude on the part of the plaintiff would have been directed to replacing the
missing file immediately.
Furthermore, the Government of Nicaragua cannot accept the allegations that it
consented to the creation of a hostile atmosphere with respect to Mr. Macías. The police
authorities provided adequate protection at all times for the plaintiff and prevented any attack
against the person and property of Mr. Macías. The Government of Nicaragua
denies that it has encouraged or permitted the carrying out of such spontaneous acts alien to the
In the case of Mrs. Macías, the Government of Nicaragua must vehemently
it has not been part of its policy to oppose the publication of public concern about topics as
sensitive as the adoption of children or the education question, and that does not imply
responsibility for, or "agreement" with, such publications.
The Government of Nicaragua also wishes to establish clearly that Nicaragua has
undertaken any criminal action against Mr. Macías or his wife. The doors are open to Mr.
Macías to return to Nicaragua whenever he desires and, in accordance with his interests,
proceed with the damages and slander suit he has filed.
On the basis of the above considerations, the Government of Nicaragua requests
of the resolution under discussion. The Government of Nicaragua is abstaining from
commenting on other aspects concerning the basis of the damages and slander suit, inasmuch
as such matters are reserved for the various courts established under the law.
 "The requirement of exhaustion of domestic remedies is not a purely technical or rigid rule" (France v. Norway), Case of Certain Norwegian Loans, July 6, 1957, separate opinion by Judge Lauterpacht, I.C.J. Reports (1957) 39; Also see: Hackworth, Digest of International Law, Vol 5, pp. 501, 511 (1943).
 "However, failure to exhaust the 'local remedies' will not constitute a bar to a claim...when the...judicial tribunal is under the control of the executive organ whose acts are the subject matter of the complaint" (International Law, A Treaty by L. Oppenheim; H. Lauterpacht, editor, Vol. I, Peace, 8th ED (1967), p. 361; for cases on Point see Oppenheim, supra, p. 362, N 1, 1; Switzerland v. U.S. (1959) I.C.J. Report 6; "A state is responsible if any injury to an alien results from a denial of justice. Denial of justice exists where there is a denial, unwarranted delay or obstruction of access to courts" (Article 9 of Harvard Research (1929) reported in 23 Am. J. Int'l L. Supp. (Special No.) (April 1929) 173); a denial of justice occurs when a person is treated by conduct that departs from generally accepted standards for the conduct of legal proceedings (American Law Institute, 2nd Restatement, Foreign Relations Law of the United States, (1965), Pt. IV, pp. 502-503); Article 3 of Revised draft on international responsibility of the State for injuries caused in its territory to the person or property of aliens, prepared by Special Rapporteur (Garcia Amador), International Law Commission DOC A/CN.4/34/Add. 1, Dec. 11, 1961; Article 19(2) of the 1961 Harvard Draft Convention on International Responsibility Draft No. 12, April 15, 1965, pp. 161-163; Sections 180 and 182 of American Institute, 2nd Restatement (1965), Part IV; for higher and lower officials' acts which cause injury, see Attorney Advisor Fraleigh, Office of the Legal Advisor, memorandum, No. 10, 1950, U.S. Department of State, file 123 Mackierman, Douglas.
 "International law grants the alien procedural rights in the State of residence as a primary protection against violation of his substantive rights. These procedural rights amount to freedom of access to the courts, the right to a fair non-discriminatory, unbiased hearing...within a reasonable time" (Roth, The Minimum Standard of International Law Applied to Aliens (1949) p. 185); "A denial of the right to participate in proceedings in a tribunal...to determine...civil rights...is wrongful" (Article 6, Harvard Draft Conventions on International Responsibility of States from Injuries to Aliens, Draft No. 12, April 15, 1961, pp. 86-87; "In determining the fairness of any hearing, it is relevant to consider whether it was held before an independent tribunal" and whether the person is denied "a full opportunity to know the substance and source of any evidence against him and to contest its validity" (Article 7), Harvard Draft Convention on International Responsibility of States for Injuries to Aliens, Draft No. 12, April 15, 1961, pp. 90-91.
 Diplomatic Protection in fact granted by Venezuela. "The diplomatic protection of nationals who having suffered injury or loss in a foreign country and having exhausted domestic remedies as may be available, have sustained a denial of justice, (and such protection) does not constitute 'intervention' in the affairs of the State when the case arises" (Assistant Legal Advisor Whiteman to the United States Mission to the United Nations, file 220.1122/10-2854). It is automatically implied in the above standard that domestic remedies must in fact be exhausted before diplomatic protection is given. Mr. Macias left Nicaragua under the protection of Luis Herrera, the President (at the time) of Venezuela and has been granted the protection of the U.S. Government upon arrival in the U.S. "Diplomatic Protection is not normally given unless domestic remedies are exhausted" (Pan American Union Document, OEA/Ser.l/VI-1. CIJ-64. pp. 2-4). "The exhaustion of domestic remedies is generally considered a necessary condition precedent to a valid complaint that a claimant has been denied justice and to (have) recourse to diplomatic protection" (Spangler, Deputy Assistant Legal Advisor for International Claims, to Robert P. Patterson, Jr., letter, September 3, 1958, MS. Department of State (U.S.) file 490 D 1135/8-2558. Not only does the offer of Diplomatic Protection confer notice that the protecting state considers that the claimant has exhausted domestic remedies, but such protection also confers notice that the protecting state considers that the higher officials of the government against whom the claim is made have acted without justification (Borchard, Diplomatic Protection of Citizens Abroad, sections 77-79; also see: Article 7 of the 1929 Harvard Research, Draft Convention on Responsibility of States). However, the majority opinion see no reason to distinguish between higher or subordinate officials (Hyde, International Law (2nd Rev. Ed.) p. 935; Oppenheim (6th Ed (1947, by Lauterpacht) p. 328; Nielsen, International Law Applied to Reclamation (1933) p.29; the 1961 Harvard Draft Convention (supra) Article 15; American Law Institute, 2nd, Foreign Relations Law in the U.S. (1965) Pt. IV, Sections 169, 170; the Goldschmied Claim, Franco-Italian Conciliation Commission, Jan. 17, 1953, International Law Report 21l, 221; PL (U.S.) 182, 81st Cong., 1st sess;. G3 Stat 478). Also in the Convention on Diplomatic Asylum, signed in Caracas (March 28, 1954, OAS Official Record, OEA/SER. X/1. treaty series 34) we find: "It is not lawful to grant asylum to persons...save when the acts giving rise to the request for asylum...are clearly of a political nature" (Article 3); "it shall rest with the state granting asylum to determine the nature of the offense or the motives for the persecution" (Article 4); "Asylum may not be granted except in urgent cases" (Article 5). "Urgent cases are understood to be those...in which the individual is being sought...by the authorities themselves and is in danger of being deprived of...life or liberty because of political persecutions" (Article 6). "The official furnishing asylum shall take into account the information furnished to him by the territorial government" (Article 9); Also see UNGA Resolution 14 (1967) on Asylum to persons in Danger of Persecution; "Purpose of asylum, both territorial and diplomatic, is to safeguard the freedom, security and physical integrity of the individual" (P. 68, June 1981 Report on Nicaragua by the Inter-American Commission on Human Rights).  "There is general recognition of responsibility...on the part of a nation for acts of judicial authorities and other representatives of government" (Nielsen, International Law Applied to Reclamations (1933), p. 29).
 "These procedural rights amount to freedom of access to court" (Roth, Minimum Standards of International Law Applied to Aliens (1949) p. 185). "Denial of access to (law) is clearly recognized as wrongful" (Articles 6, Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, Draft No. 12, April 15, 1961. When the means of resorting to competent courts is not available there is a denial of justice (Inter-American Juridical Committee, 1961 Pan-American Union Document OEA/Ser.1/VI.1 CIJ-64. pp. 2-4). "An adverse determination that is manifestly unjust in a proceeding determining...his rights and liabilities of a civil nature, is a denial of procedural justice" (American Law Institute (Supra) section 182; for cases applying this principle see p. 729, Whiteman Digest of International Law, Vol 8; Also, "A refugee (even) shall have free access to the courts of law on the territory of all contracting states" (Convention relating to Refugees Article 16 done at Geneva, 28 July 1951, which the Nicaraguan Government ratified, see p. 33, June 1981 Rep. Inter-American Commission on Human Rights.
 See: page 23, June 1981 Report of the Inter-American Commission on Human Rights wherein is noted that the old "Somocist" courts were abolished by Chapter II, Articles 3, 4, 5 of the Fundamental Statute, and yet, due to the lack of legal authority of the present Government of Nicaragua because of non-compliance with Article 21(3) of the Universal Declaration of Human Rights and Article 1 International Covenant on Civil and Political Rights, entered into force March 23, 1976 U.N. 52 Doc. A/6316 (1967) and Article (1) International Covenant on Economic and Cultural Rights, p. 196 Basic Doc. World Order, the legality of any court established by such a government is questionable at least.
 See: Tape/deposition of Miguel Bolaños; Salomon Calvo's letter; the grant of Diplomatic Asylum; Exhibit L1; Exhibit L2; Exhibit L3. (See evidence supporting 2nd exception to exhausting of domestic remedies, this brief, page 4); (and see, supporting additional evidence of government involvement in media discrediting in general, this brief, page 7).
 See: Mention of the intimidation mobs around the home and office of Edgard Macias and his wife of Miguel Bolaños deposition; See: reference to arrest order seen by Mr. Salomon Calvo in Exhibit D; See: Exhibit L1, L2, L3 referring to government preventions of Mr. Macias' right to reply; See: footnote 17.5 concerning legal ramifications of Diplomatic Protection offered to Mr. Macias by the Government of Venezuela; See: for general background on violence and street gang justice in Nicaragua, footnote 25 of Mr. Macias' petition.
 "Nationals and companies of either party shall be accorded national treatment and most-favored-nation treatment with respect to access to the courts of justice..." Treaty of Friendship Commerce and Navigation between the United States and Japan (April 21, 1959) Article IV, U.S. TIAS 2863, 4 UST 2063, 2067, 206 UNTS 143, 194. The above quotation is typical of numerous treaties concluded by the United States since World War II. Other similar treaties listed, but uncited, see p. 735 of Vol 8, Whiteman, Digest of International Law for citations: U.S. and Republic of China Nov. 5, 1946 U.S. and Fed. Republic of Germany Oct. 29, 1954 U.S. and Greece Aug. 3, 1951 U.S. and Korea Nov. 28, 1956 U.S. and Ireland Jan. 2l, 1950 U.S. and Israel Aug. 23, 1951 U.S. and Italy Feb. 2, 1948 U.S. and Netherland Mar. 27, 1956 U.S. and Nicaragua Jan. 21, 1956 U.S. and Pakistan Nov. 12, 1959 U.S. and Ethiopia Sept. 7, 1951 U.S. and Iran Aug. 15, 1955 U.S. and Museat and Oman Dec. 20, 1958 U.S. and France Nov. 25, 1959 U.S. and Denmark Oct. 1, 1951 U.S. and Belgium Feb. 21, 1961 U.S. and Viet-Nam April 3, 1961 U.S. and Luxembourg Feb. 23, 1962 While subsequent political matters have rendered some of these treaties moot, they do indicate non-regional and non-racial respect in the international community for a right to accesss to court. And they also indicate that such respect is not confined just to social and cultural exchange, but also to commercial exchange (see: Robert R. Wilson, "Access to Court" Provisions in U.S. Commercial Treaty, 47 Am J. Int'l L. (1953) 20, 40-48 wherein access to law is considered as valid international law).  "Every person may resort to the courts to insure respect for his legal rights" (Article 18, American Declaration of the Rights and Duties of Man, Bogota, Colombia 1948); also "Everyone has the right to effective, simple, and prompt recourse to the competent national courts." (Draft Convention on Human Rights, 4th meeting of Inter-American Council of Jurists, 1959, Santiago, Chile, Pan American Union Doc. CIJ-43, p. 48).
 "Everyone has a right to an effective remedy...for acts violating the fundamental rights...granted him by...law" (Article 8, Universal Declaration of Human Rights, G.A. RES. 217 A (111) December 10, 1948): "to assure that any person whose rights or freedoms are violated shall have an effective remedy..." (Article 2(3)(a), G.A. RES. 2200 (XXI), December 16, 1968); failure to afford an alien of justice, is a denial of justice (American Law Institute, 2nd Restatement, Foreign Relations Law of the U.S. (1965), Pt. IV, pp. 502-503, comment (4) on Denial of Justice); also see: Tort Claims in International Law, page 812, Vol. 8, Whiteman, Digest of International Law. Dept. of State Publication 8290 (1967).
 Inter-American Court of Human Rights, Advisory Opinion No. OC-2/82 of September 24, 1982, Part II, page 5, requested by the Inter-American Human Rights Commission; also see: "The Court is, first and foremost, an autonomous judicial institution with jurisdiction both to decide any contentious cases concerning the interpretation and application of the Convention as well as to ensure the victim of a violation the rights of freedoms guaranteed by the Convention the protection of those rights. (Convention, Arts. 62 and 63 and Statute of the Court, Art. 1). Because of the binding character of its decisions in contentious cases (Convention, Art. 68) the Court is the Convention organ having the broadest enforcement powers designed to ensure the effective application of the Convention" (page 7, paragraph 22, Inter-American Court of Human Rights, Advisory Opinion No. OC-1/82, September 24, 1982, requested by Peru).
 "If the Mixed Commission may be thought of as attempting to settle disputes in which law created or recognized by the treaty is involved, then the Arbitral tribunal may be thought of as determining the law" (Inter-American Yearbook of Human Rights, 1969-1970, pp. 417-418. The Upper Salesian Minority Treaty Arrangement, C(ii), Arbitral Tribunal.
 "Special problems arise in the human rights area. Since it is the purpose of human rights treaties to guarantee the enjoyment of individual human beings of those rights and freedoms, rather than to establish reciprocal relations between states, the fear has been expressed that the exercise of the Court's advisory jurisdiction might weaken its contentious jurisdiction, or, worse still, that it might undermine the purpose of the latter, thus changing the system of protection provided for in the Convention to the detriment of the victim"..."the advisory jurisdiction of the Court is closely related to the purposes of the Convention. This jurisdiction is intended to assist the American States in fulfilling their international human rights obligations and to assist the different organs of the Inter-American system to carry out the functions assigned to them in this field. It is obvious that any request for an advisory opinion which has another purpose would weaken the system established by the Convention and would distort the advisory jurisdiction of the Court." (Inter-American Court of Human Rights Advisory Opinions No. OC-1/82, September 24, 1982, page 8, paragraphs 24 and 25).
 "The refusal of the defendant's government to permit a judicial examination of their conduct --does not give them any absolution for the wrongs they have committed" (XXXI Bulletin, Dept. of State, No. 787, July 26, 1954, pp. 130-131, U.S. Comment on case of the treatment in Hungary of aircraft and crew of the United States of America (U.S. v. Hungarian People's Republic), order of July 12, 1954, I.C.J. (1954), p. 90; also see (U.S. v. U.S.S.R.) I.C.J. page 103; "There is a duty to arbitrate when a treaty (Convention) gives rise to a claim (Greece v. United Kingdom)". (Ambaialos' Case Arbitral Decision, March 6, 1956, summary by Bishop and Lessitizzn, 50 Am. J. Int'. L. (1956) 674-677). Such a duty to arbitrate has traditionally been imposed (because it arose in the context of State treaties) on States (See: Meron, Assistant Legal Advisor to the Israel Ministry of Foreign Affairs, XXXV Brit. YB. Int'l L. (1959) 83, 84-88), but in the Case of Mr. Macias this Human Right Convention imposed duty is consensual, imposed upon states to protect their own citizens. And surely this duty imposed by treaty on one State by another confers no rights to States that are greater than Convention rights confer consensually on individual citizens who are the only purpose behind the existence of their State. "Individual petition would alleviate the serious situation of Stateless persons whose capacity to claim protection for violations of human rights would be all but eclipsed if their cases had to be presented by a state. Individual petitions would assist those whose own governments have violated their rights in situations where internal remedies are ineffective, and where appeal to another state would be personally dangerous and diplomatically complex." (Inter-American Yearbook of Human Rights 1986, Judicial considerations of the right to petition, p. 42l). We are not unaware of the fragile hopes and manipulations that comprise the legislative history of the Inter-American Human Rights Convention concerning the effective right of an individual to petition against violations of his/her human rights. (Inter-American Yearbook on Human Rights, 1969-1970, pp. 400-423), but we feel that the time of ambiguity in this matter is over; individual human rights are more important than the rights of government because they constitute the only real underlining stability in a world increasingly involved in global human exchange. Perhaps Justice Douglas of the U.S. Supreme Court says it best when he states: "...where wrongs to individuals are done by violations of specific guarantees, it is abdication for courts to close their doors... The individual is almost certain to be plowed under in spite of glowing opinions and resounding constitutional phrases." (Flast v. Cohen), 392 U.S. 83, 111 (1968).
 Section 210. Determination as to Exhaustion, American Law Institute, 2nd Restatement, Foreign Relations Law of the United States (1965), PT. IV Responsibility of States for Injuries to Aliens, p. 618.
 The Universal Declaration of Human Rights is incorporated into Nicaraguan Law by Articles 6, 7, and 8 of the Fundamental Statute. Article 21(3) of the Universal Declaration of Human Rights states, "The will (expressed by genuine elections) of the people shall be the basis of the authority of government"; also see: "All people have the right of self-determination" (Article 1(1), International Covenant on Economic, Social and Cultural Rights, ratified by Nicaragua); "All people have the right of self-determination." (Article 1(1), International Covenant on Civil and Political Rights, also ratified by Nicaragua).
 "In order to contend successfully that international proceedings are inadmissible, the defendant state must prove the existence, in its system of internal law, of remedies where have not been used." Ambatielos Case (Green v. United Kingdom), Judgment (Merits) May 18, 1953 I.C.J. Reports (1953) l0.
 "Conduct which is wrongful under international law gives rise immediately to responsibility under international law." (Section 168, Comment (a), American Law Institute, 2nd Restatement, Foreign Relations Law of the United States (1965) pp. 510-511).
 The Convention Relating to the Status of Stateless Persons (U.N.T.S. N. 5158, Vol. 360, p. 117) defines in Article (1) the term "stateless person" as "a person who is not considered as a national by any state under operation of its law." Mr. Macias, presently living in the United States on a tourist visa and feeling it to be unwise to return to Nicaragua even if he could, is without a nationality, because a tourist visa does not confer United States Nationality and the inability of Nicaraguan law to legally operate has effectively removed his old nationality (regardless of private sentiments) and substituted no other in its place. So we feel that Mr. Macias' position is truly that of a stateless person. But even if he were not in a position of being involuntarily separated from his nationality and instead simply denounced his nationality because of treatment he received at the commands of the Government of Nicaragua, he would still be entitle to the natural human rights and freedoms associated with all humans and applicable to nationals and aliens alike.(U.N. Doc. A/CN. 4/1/Rev. 1, February 10, 1949, pp. 46-47). This would be true notwithstanding Article 7 of the Convention on the Reduction of Statelessness, which is against the renunciation of nationality, because he is in compliance with the exception of this rule, i.e., Article 14 of the Universal Declaration of Human Rights which allows exceptions for asylum due to persecutions. Thus, Mr. Macias, although stateless, still has a violation of internationally guaranteed human rights.