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The Fishermen's Protective Act: A Case Study in Contemporary Legal Strategy of the United States

Published online by Cambridge University Press:  28 March 2017

Theodor Meron
Theodor Meron*
Affiliation:
Internaitonal Law in the Faculty of Law (Common Law Section) of the University of Ottawa
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Extract

The object of this article is to examine and evaluate the Fishermen's Protective Act, as reflecting the legal strategy of the United States in one particular area of its foreign relations law of importance to both the law of the sea and the law of international claims.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 2 , April 1975 , pp. 290 - 309
Copyright
Copyright © American Society of International Law 1975

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References

1 22 U.S.C.A. §§1971-1979 (Supp. 1974).

2 For a description of the Fishermen’s Protective Act, see statement by Lillich, in United States Relations with Peru, Hearings Before the Subcomm. on Western Hemisphere Affairs of the Senate Comm. on Foreign Relations, 91st Cong., 1st Sess, 59-60, 65 (1969)Google Scholar. Lillich regards the Fishermen’s Protective Act as “a relatively imaginative, self-help type of procedure.” Id. 59.

3 Ambassador McKernan, Special Assistant for Fisheries and Wildlife, Department of State, Hearings on H.R. 4153, 4346, 4350, 4451, 4452, 9015, 5148, 6785 Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 90th Cong., 1st Sess., ser. 90-8, at 58 (1967). Regarding U.S. fishing difficulties off the coasts of Chile, Ecuador, Peru, and Mexico, see 4 Whiteman, , Digest of International Law 1198-239 (1965)Google Scholar.

4 The Pacific Ocean waters off the coast of Peru are one of the most fertile fishing areas in the world; in 1970 the catch of anchovies alone yielded more than a fifth of the world’s total harvest of fish from the sea. Schmeck, , N.Y. Times, Oct. 26, 1974, at 1, col. 8 (city ed.)Google Scholar.

5 68 Stat. 883; 22 U.S.C. 1971-1976.

6 Sec. 2(a).

7 Sec. 2(b).

8 Sec. 3.

9 Sec. 4.

10 Sec. 5.

11 Letter from William B. Macomber, Assistant Secretary of State for Congressional Relations, to Edward A. Garmatz, Chairman of the House Committee on Merchant Marine and Fisheries, June 22, 1967, in Hearings, supra note 3, at 14.

12 Letter from George W. Spangler, Assistant Legal Adviser to the Department of State, to August Felando, General Manager, American Tunaboat Association, Sept. 27, 1965, in Hearings, supra note 3, at 36.

13 Letter from Leonard C. Meeker, Legal Adviser to the Department of State, to August Felando, Nov. 4, 1966, in Hearings, supra note 3, at 38.

14 Ambassador McKernan, in Hearings, supra note 3, at 59.

15 Ernest L. Kerley, Assistant Legal Adviser to the Department of State, in Hearings, supra note 3, at 69.

16 Ambassador McKernan, id. 68-69.

17 Id. 70.

18 Id. 58.

19 Testimony by Ernest L. Kerley, id. 69. It should be noted that the statistical data on the number of vessels seized produced by the Department of State was not always identical with data produced by the Bureau of Commercial Fisheries. See id. 75.

20 See statistical data in Hearings on S. 1260, 1752, 1784, 1798, 2047, 2232, 2269, S.J. Res. 75, and SJ. Res. 103 Before the Subcomm. on Merchant Marine and Fisheries of the Senate Comm. on Commerce, 90th Cong., 1st Sess., ser. 90-35, at 15 (1967).

21 80 Stat. 908.

22 H.R. Rep. No. 625, 90th Cong., 1st Sess., 6 (1967).

23 Letter from Leonard C. Meeker, the Legal Adviser to the Department of State, to August Felando, Nov. 4, 1966, in Hearings, supra note 3, at 38.

24 Regarding proposals to extend the fishery zone of the United States, see Interim Fisheries Zone Extension and Management Act of 1973, Hearings on S. 380, S. 1988 and S. 2338 Before the Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce, 93d Cong., 1st Sess., ser. 93-51, pt. 1 (1974); Interim Fisheries Zone Extension and Management Act of 1973, Hearings on S. 380, S. 1988 and S. 2338 Before the Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce, 93d Cong., 2d Sess. ser. 93-54, pt. 2 (1974); Senate Comm. on Commerce, Emeroency Marine Fisheries Protection act of 1974, Rep. NO. 93-1079, 93d Cong., 2d Sess. (1974); Emergency Marine Fisheries Protection Act of 1974, Hearings on S. 1988 Before the Seriate Comm. on Foreign Relations, 93d Cong., 2d Sess. (Comm. Print 1974); Senate Comm. on Foreign Relations, Emergency Marine Fisheries Protection Act, Rep. No. 93-1166, 93d Cong., 2d Sess. (1974). The Department of State argued in favor of an internationally negotiated solution to the fisheries problem and against a unilateral extension of the U.S. contiguous fisheries under S. 1988 (from 9 miles beyond the 3-mile territorial sea to a width of 197 miles beyond the territorial sea), pointing out that the U.S. distant water fishing interests, such as the tuna and shrimp industries, would be prejudiced by the proposed unilateral action, since the United States would be compelled, in effect, to recognize extended fisheries zones of other coastal states “at least to the extent of our own unilateral claim.” Moreover, such a unilateral extension “would have detrimental implications for the coverage of the Fishermen’s Protective Act of 1967.” Letter from John Norton Moore to Senator Magnuson, Jan. 18, 1974 in Senate Comm. on Commerce, Emergency Marine Fisheries Protection Act of 1974, Rep. NO. 93-1079, 93d Cong., 2d Sess. 45-46 (1974); reprinted in 13 ILM 1297 (1974). Elsewhere, John Norton Moore pointed out that such unilateral extension “coupled with reliance on the Fishermen’s Protective Act to protect threatened distant water fishing interests of the United States seem certain to assure continuation of disputes with Ecuador and Peru as well as to generate new disputes with other coastal states off whose coasts our nationals fish.” Emergency Marine Fisheries Protection Act of 1974, Hearings on S. 1988 Before the Senate Comm. on Foreign Relations, 93d Cong., 2d Sess., 55 (Comm. Print 1974); 13 ILM 1295 (1974). S. 1988 passed the Senate on December 11, 1974. For criticism of the Senate action, see “Fishing for Trouble,” N.Y. Times, Dec. 20, 1974, at 36 (ed.) col. 2.

25 H.R. 5148 and H.R. 6785, H.R. 4346 and H.R. 4350, H.R. 4451, H.R. 4452 and H.R. 9015. For the texts of the various bills, see Hearings, supra note 3, at 2-3.

26 For the bill as proposed by the Department of the Interior, see Hearings, supra note 3, at 6-7.

27 H.R. Rep. NO. 625, 90th Cong., 1st Sess., 1-2 (1967).

28 Sec. 5.

29 Letter from William B. Macomber, Jr. to Chairman Garmatz, June 22, 1967, Hearings, supra note 3, at 13.

30 Hearings, supra note 2, at 60, 65. See also Lillich, , Requiem for Hickenlooper, 09 AJIL 97, note 17 (1975)CrossRefGoogle Scholar.

31 22 U.S.C.A. §1975(b). Fishermen’s Protective Act Amendments, House Conference Report to Accompany H.R. 7117, Rep. NO. 92-1523, 92d Cong., 2d Sess., 2 (1972). See also infra note 45. Under 22 U.S.C.A. §1975(b), in case of failure or refusal of a foreign country to make payment in full within one hundred and twenty days from notification to be made in accordance with the new §1975(a)(l), and unless a presidential certification of national interest is made, an amount equal to an unpaid claim, or to an unpaid portion thereof, is to be transferred from funds appropriated for the government of the defaulting country under the Foreign Assistance Act of 1961 to a newly established Fishermen’s Protective Fund or to a separate account established in the Treasury, in accordance with the stipulations of the section.

In 1973, the House Committee on Foreign Affairs proposed the repeal altogether of section 5 of the Fishermen’s Protective Act, on the ground that pending the outcome of the Law of the Sea Conference, fisheries disputes should be resolved through nonprejudicial interim arrangements and that the prospects for a negotiated settlement would be brighter in the absence of legislative sanctions. Moreover, the threat of a negative reaction against other U.S. economic and political interests would be reduced by the removal of such legislation. Mutual Development and Cooperation Act of 1973, House Comm. on Foreign Affairs Rep. on H.R. 9360, Rep. No. 93-388, 93d Cong., 1st Sess., 45-46, 63, 68, 85 & 100 (1973). The Committee’s recommendation was not adopted by Congress. See also Lillioh, Requiem for Hickenlooper, supra note 30. See also “Inter-American Blueprint,” N.Y. Times, Nov. 8, 1974, at 38 (ed.) col. 1.

32 Sec. 3. The automatic nature of the reimbursement of the owner by the United States for direct charges paid to secure the release of crew and vessel under section 3 of the original 1954 Act was not modified by the 1968 Act. Concerning the application for reimbursement, see infra note 44.

33 H.R. Rep. No. 625, 90th Cong., 1st Sess., 8 (1967).

34 Id. 7–8.

35 Id. 8.

36 Hearings, supra note 20, at 56.

37 Sec. 7(d).

38 S. Rep. No. 92-950, 92d Cong., 2d Sess., at 5 (1972). No time limit applies to the program of reimbursement of owners for direct charges paid to secure the release of the vessel and crew under section 3 of the Fishermen’s Protective Act. 22 U.S.C.A. 51973.

39 S. Rep. No. 92-950, 92d Cong., 2d Sess., at 2 (1972).

40 Letter from David M. Abshire, Assistant Secretary for Congressional Relations, to Chairman Garmatz, May 3, 1972, H.R. Rep. NO. 92-1487, 92d Cong., 2d Sess., at 5 (1972).

41 Ibid.

42 Ibid .

43 86 Stat. 1313.

44 This change followed Reorganization Plan No. 4 (1970), 35 Fed. Reg. 15627 (1970). 84 Stat. 2090.

Regarding the administration of the Fishermen’s Protective Act, see Whiteman, supra note 3, at 1231-1232; Letter from Fabian A. Kwiatek, Assistant Legal Adviser for International Claims, to August Felando, Feb. 12, 1974, 68 AJIL 512 (1974); “Suggestions for Preparing Claims arising out of Seizures of Vessels in International Waters” issued by the Department of State on Dec. 6, 1972; “Instructions for Applying for a Guarantee Agreement” issued by the Financial Assistance Division, National Marine Fisheries Service, Department of Commerce (Form No. 88-25); Fishermen’s Protective Act Procedures, 36 Fed. Reg. 11922 (1971); 37 Fed. Reg. 13179 (1972); 38 Fed. Reg. 6283 (1973); 38 Fed. Reg. 18550 (1973); 39 Fed. Reg. 24016 (1974).

45 Amendments to Fishermen’s Protective Act of 1967, House Comm. on Merchant Marine and Fisheries Rep. to Accompany H.R. 7117, H.R. Rep. No. 92-426, 92d Cong., 1st Sess., 1-2 (1971). See also supra note 31.

46 See H.R. Rep. NO. 92-426, supra note 45 at 7-8.

47 See H.R. Rep. NO. 92-426, supra note 45 at 9. See also Senate Comm. on Commerce, Rep. NO. 92-584, 92d Cong., 1st Sess. (1971); Senate Comm. on Foreign Relations, Rep. No. 92-769, 92d Cong., 2d Sess. (1972); Comm. on Conference Rep., H.R. Rep. NO. 92-1523 (1972).

48 Letter from David M. Abshire, Assistant Secretary for Congressional Relations, to Chairman Garmatz, June 3, 1971, H.R. Rep. NO. 92-426, supra note 45 at 11-13.

48 Letter from William B. Macomber to Chairman Garmatz, June 22, 1967, Hearings, supra note 3, at 13.

50 Id. 13-14.

51 Statement of Ambassador McKernan, Hearings, supra note 3, at 60.

52 Statement by August Felando, General Manager, American Tunaboat Association, Hearings, supra note 3, at 43.

53 Id. 44.

54 In Judgment of April 9, 1949, [1949] ICJ Rep. 4 at 29.

55 Id. 28. Obviously, most of the international traffic referred to by the Court consisted of private, not government-owned shipping.

56 Judgment of July 25, 1974, [1974] ICJ Rep. 3 at 28.

57 Id. 30.

58 Id. 34.

59 Judgment of Dec. 18, 1951, [1951] ICJ Rep. 116 at 124.

60 Id. 139.

61 Id. 138.

62 Letter from Harry R. Anderson, Assistant Secretary of the Interior, to Chairman Garmatz, June 21, 1967, Hearings supra note 3, at 5.

63 Letter to Chairman Garmatz, June 22, 1967, id. 11. The United States has in fact developed a program of insurance designed to compensate American investors in foreign countries for certain noncommercial risks, and as pointed out by Lillich, the program established by the Fishermen’s Protective Act “is very similar to the investment guarantee program.” Hearings, supra note 2, at 59. The legislation governing the Overseas Private Investment Corporation has recently been revised by Public Law 93-390, adopted on August 27, 1974. See also 14 Whiteman, , Digest of International Law 900, 901, 913, 916, 917, 920 (1970)Google Scholar.

64 Letter from William B. Macomber to Chairman Garmatz, June 22, 1967, Hearings supra note 3, at 13.

65 Testimony by Ambassador McKernan id. at 60-61.

66 Id. 6.

67 S. Rep. NO. 919, 90th Cong., 1st Sess. 3 (1967).

68 Id. 4.

69 Id. 5.

70 114 Cong. Rec. 8864 (1968).

71 Ibid.

72 Section 5. 22 U.S.C.A. §1975(a)(2). Also the standard guarantee agreement under the Fishermen’s Protective Act of 1967 (Form O.M.B. No. 41-R2579) does not employ the term “subrogation.” Article VIII of this agreement deals with repayment to the government by the guaranteed party of amounts of claim in case of the eventual release of the vessel, gear, or other equipment. Regarding subrogation by the United States under the Fishermen’s Protective Act, see also Lillich, in Hearings, supra note 2 at 60.

73 See S.S. I’m Alone (Canada v. United States) (1935), 3 U.N.R.I.A.A. 1611 at 1618. 8 Whiteman, , Digest of International Law 1213-14 (1967)Google Scholar.

74 Judgment of Feb. 5, 1970, [1970] ICJ Rep. 3 at 196-97.

75 Id. 196.

76 Whiteman, supra note 72, at 1216-19, 1224. But under 22 U.S.C. §1972(b) the Secretary of State must take such action as he deems appropriate to secure the release of a seized vessel and its crew. See also 22 U.S.C. §1732 regarding the duty of the President to demand the release of U.S. citizens wrongfully imprisoned by foreign governments. In the Barcelona Traction case, the Court alluded to the discretionary power of states to grant diplomatic protection or to refuse it. Supra note 74, at 50.

77 See also supra note 47.

78 118 Cong. Rec. 10096 (1972). 119 Cong. Rec. E. 1922 (1973).

79 According to information given to the author by the Department of State in February 1975, vessel seizure claims certified to the Treasury for reimbursement for the period 1954-1974 were as follows: Colombia (2 claims), $7,277; Ecuador (103 claims), $5,199,944; Honduras (5 claims), $45,000; Mexico (50 claims), $114,800; Panama (4 claims), $79,700; Peru (40 claims), $893,352. Total: 204 claims, $6,340,073. Certifications arising out of seizures by Ecuador of seven U.S. tuna boats in February 1975 were expected to amount to approximately $1,640,000. Regarding these seizures, see Kandell, , N.Y. Times, Feb. 18, 1975, at 2, col. 2 (city ed.)Google Scholar; Holies, id. March 9, 1975, at 20, col. 4.