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28. Comments of the United States to the International Law Commission (May 16, 2003)


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May 16, 2003

DIPLOMATIC PROTECTION

AND RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS: COMMENTS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA

The Government of the United States of America welcomes the opportunity to provide comments in response to the questions posed by the Commission in Paragraphs 27, 28, and 31 of the Report on its fifty-fourth session, A/57/10. In addition, the United States takes this opportunity to comment on one issue raised in both Article 4 of the draft articles on diplomatic protection adopted by the Commission on first reading and the Article 20 proposed in the Special Rapporteur's Fourth Report on Diplomatic Protection.

I. Diplomatic Protection Protection of Crew Members

Since the late eighteenth century, the United States has often advocated the position, and on multiple occasions espoused claims based on the theory, that the State of nationality of the ship can provide non-exclusive diplomatic protection to crew members who hold the nationality of a third State. See A.D. Watts, The Protection of Alien Seamen, 7 international and Comparative Law Quarterly 691, 693-98 (1958). This policy stemmed from U.S. opposition to British impressment of seamen on U.S.-flag merchant vessels sailing on the high seas, especially during the Napoleonic Wars. See James Fulton Zimmerman, Impressment of American Seaman (1925). While the United States did not, in theory, object to Britain's impressment of its own nationals, the United States did protest British searches of U.S. vessels and the removal of crew members. Since Britain and the United States could not agree upon a mechanism for determining the nationality of seamen serving aboard their merchant vessels on the high seas, despite many years of diplomacy, the United States adopted the rule, first proposed by Thomas Jefferson in 1792, that "the vessel being American shall be evidence that the seamen on board are such." See Secretary of State Thomas Jefferson to Thomas Pinckney, June 11, 1792, in 3 American Slate Papers: Foreign Relations 574 (1832); see also Secretary of State Daniel Webster to Lord Ashburton, Aug. 8, 1842, in l The Papers of Daniel Webster: Diplomatic Papers 679 (Kenneth E. Shewmaker ed., 1983) ("ln every regularly documented American merchant vessel the crew who navigate it will find their protection in the flag which is over them.").

This presumption regarding the nationality of crew members serving aboard U.S. ships led to the extension of diplomatic protection beyond the area of impressment. Thus, in McCready v. Mexico (Convention of July 4, 1868), the United States argued that it could espouse the claim of a non-national seaman, and the Commission agreed. Umpire Sir Edward Thornton concluded that "seamen serving in the naval or mercantile marine under a flag not their own are entitled, for the duration of that service, to the protection of the flag under which they serve." 3 John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 2537 (3 898). A similar conclusion would have been reached by the Commission in Hilson v. Germany (Special Agreement of Aug. 10, 1922), according to

Umpire Edwin Parker, absent the treaty provision to the contrary. See 7 R.I.A.A. 176, 183 (1925). U.S. courts and domestic claims commissions have also recognized the rule, see In re Ross, 140 U.S. 453, 472 (1891); Cruz v. Zapata Ocean Resources, Inc., 695 F.2d 428, 433-34 (9th Cir. 1982); Moore, supra; 2350, and the United States has espoused the claims of third State crew members diplomatically as well, see 3 Green Haywood Hack-worth, Digest of International Law 418 (1942). Other States, in some reported instances, have apparently also adopted this view. See Watts, supra, 697.

Yet, the United States has not consistently applied this approach. Some U.S. statutes have required that a foreign seaman, as a precondition to his protection, declare his intent to become a U.S. citizen. See Act of June 7, 1872, � 29, 17 Statutes at Large 262, 268; cf. Detention of August Piepenbrink, 9 American Journal of International_ Law 353-60 (Spec. Supp. 1915). And in the S.S. "I'm Alone" Case (Can. v. U.S.) (Special Agreement, Convention of Jan. 23, 1924). the United States argued that "the Commissioners should not in this proceeding recognize or give effect to a claim submitted on behalf of a claimant [the French spouse of a drowned French crew member] who is not a Canadian citizen." "Statement with Regard to the Claims for Compensation Made by His Majesty's Government in Canada," in Claim in Respect of the Ship I'm Alone": Statements Submitted by the Agent for the United States Pursuant to the Directions Given by the Commissioners, Dated the 30th of June. 1933, at 12 (1934).1 Indeed, little more than twenty years ago, the United States argued in U.S. court that "under international law the United States could not claim from the offending foreign nation losses sustained by seamen who were not nationals of the United States." Cruz, 695 F.2d at 432.

Given this varied practice, it is no wonder that there is some uncertainty as to whether customary international law allows the State of nationality of a ship to protect third State crew members. Compare. e.g., Ian Brownlie. Principles of Public International Law 482 (5th ed. 1998) (noting that the nationality exception for alien crew members is "generally accepted"), with 1 Georg Schwarzenberger, International Law 593-94 (3d ed. 1957) (doubting the existence of the exception). When the International Court of Justice, in the Reparation Case, recognized that there are "important exceptions" to the rule that diplomatic protection is only exercised by the State of nationality, it did not specify the protection of crew members as one of those exceptions. See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 181 (Apr. 1 1). But see id. at 202 (Hackworth, dissenting) (suggesting that one of the exceptions referred to was for third State crew members); id. at 206 n.1 (Pasha, dissenting) (same).

The United States is of the view that the Commission should restrict its work to the codification of customary international law. Accordingly, the issue of the diplomatic protection of crew members of third States should be omitted from the scope of the topic. This approach is especially reasonable given the proliferation of flags of convenience and the decision of the International Tribunal for the Law of the Sea in the M/V "Saiaa" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), which applies, by virtue of the United Nations Convention on the

1 Without discussion, the Commissioners awarded compensation to the French. claimant. See 3 R.I.A.A. 1610, 1618 (1935).

Law of the Sea, to over 140 States. For these and other reasons, the topic's scope should also not
include the recognition of a right to the diplomatic protection of third State crew members by the State of nationality of aircraft and spacecraft.

Protection of Shareholders

As the United States noted in its statement to the Sixth Committee, a State may exercise diplomatic protection on behalf of shareholders that have its nationality for unrecovered losses to their ownership interests in a corporation registered/incorporated in another State that is expropriated or liquidated by the State of registration/incorporation or for other unrecovered direct losses.

The United States notes that the Special Rapporteur, in his Fourth Report, cites the U.S. statement as providing support for an exception to the general rule that the State of nationality of the shareholders in a corporation shall not be entitled to exercise diplomatic protection on behalf of such shareholders in the case of an injury to the corporation. See John Dugard, Fourth Report on Diplomatic protection, U.N. Doc. A/CN.4/530 (Mar. 13, 2003), paras. 27 n.80, 84 n.224. To be clear, the position of the United States is that the State of the shareholders may exercise diplomatic protection when they have been directly injured by internationally wrongful acts of another State. A classic example of a direct injury is when the State of incorporationlregistration interferes with the shareholders' ownership rights by expropriating or liquidating the shareholders' corporation under circumstances that make such an act internationally wrongful, such as discrimination or failure to pay compensation.

On the subject of exceptions to the general rule, we would urge the Commission to proceed with caution. We are not convinced that the sources cited by the Special Rapporteur establish that either of the exceptions he proposes in his Article 18 has been accepted as customary international law. We also note that the proposed exception for corporations with the nationality of the respondent State would create a regime where shareholders in such corporations would receive greater international protection than shareholders in corporations of other nationalities operating in that same State. It is not apparent to us that such a result is justified. At the very least, this area requires further study.

Continuous Nationality

Article 4 of the draft articles, as adopted by the Commission on first reading, fixes the
"date of official presentation of the claim" as the end-date for the period of continuous nationality (i.e., the dies ad quem). The Commentary states that "the date of presentation of the claim is that on which the first official or informal demand is made by the State exercising diplomatic protection."2 Article 20, as recently proposed by the Special Rapporteur, similarly uses that dale as the dies ad quern. See Dugard, Fourth Report, para. 93.

2 As the United Slates noted in its comments to the Sixth Committee, the "date of presentation" has frequently been understood in State practice to refer to the entire period in which the international claim is pressed. See, e.g.., Biens Britanniques au Maroc Espagno] - Benchiton (Gr.

The United States believes that the dies ad quem stated in these articles does not accurately reflect customary international law. Under customary international law, nationality must be maintained continuously from the date of the event giving rise to the claim through, not only the date of presentation, but also the date of the claim's resolution. This conclusion is supported by all relevant instances of State practice.

The United States is aware of eight specific instances in the context of arbitral decisions and claims presented through diplomatic channels in which the effect of a change in nationality between the presentation and the resolution of the claim was raised and addressed. In each of these instances, the nationality of the claimant or the person on whose behalf the claim was presented changed after the date the claim was officially presented to the respondent State but before the claim's final resolution.3 In each of these cases, the international claim was dismissed or withdrawn when it became known that the claim was now being asserted on behalf of a national of the respondent State .4

3There are, of course, numerous reported cases in which a change in nationality before presentation of the claim resulted in dismissal. These cases, however, shed no light on the issue under discussion here: whether customary international law supports the view, suggested in Articles 4 and 20, that a change in nationality after presentation but before resolution does not equally compel dismissal.

4 See 5 Green Haywood Hackworth, Digest of International Law 805 (1943) (where American claimant Ebenezer Barstow died after his claim was presented to the Japanese government, the United States declined to continue to espouse the claim because the decedent's wife, who was the new owner of the claim, was Japanese); Eschauzier, 5 R.I.A.A. 207 (Gr. Brit-Mex. CI.
Comm'n of 1931) (dismissing claim by a former British national who became a U.S. citizen by marriage after filing the claim); Guadalupe (unpublished) (Fr.-Mex. Reorganized Cl. Comm'n 1931), discussed in A.H. Feller, The Mexican Claims Commissions, 1923-1934 97 (1935) (tribunal denied claim where French nationality was lost "not only subsequent to the filing but also after the specific claim had been listed as receivable in the Supplementary French-Mexican Convention of 1930"); Biens Britanniques an Maroc Espagnol - Benchiton (Gr. Brit. v. Spain), 2 R.I.A.A. 615, 706 (1924) (claim denied where claimant lost protected status after first British demarche to Spain concerning claim: "the claim must remain national up to the time of judgment, or at least up to the time of the termination of the argument relating thereto") (translation from 1923-1924 I.L.R. 189); Ex ors. of F. Lederer v. German Government, 3 Recueil des Decisions des Tribunaux Arbitraux Mixtes 762, 765, 770 (Gr. Brit.-Germ. Mixed Arbitral Tribunal 1923) (where after notification of claim British claimant died leaving German beneficiaries. claim refused: to allow such relief would "be inconsistent with the meaning of the Treaty, for it would lead in effect to payments .. - by Germany to German nationals"); Fred K. Nielsen, American and British Claims Arbitration 30 (1926) (in the Hawaiian Claims case before the American and British Claims Tribunal, the British Government voluntarily withdrew three

These cases evidence a clear customary international law rule. In each of these cases, the dismissal or withdrawal of the claims reflected a sense of legal obligation. In each case decided by an arbitral tribunal, the issue was governed by customary international law rather than the specific terms of a treaty. In each case where the claim was withdrawn, it was withdrawn against the interest of the claimant State in receiving compensation from the respondent State for an act it alleged to be internationally wrongful. These cases, in short, reflect consistent State practice.5

In addition, the United States notes that States have long asserted views supporting the date of resolution of the claim, rather than the date of its presentation, as the dies ad quern. Based on a survey conducted in preparation for the Hague Codification Conference, the League of Nations Preparatory Committee concluded: "According to the opinion of the majority, and to international jurisprudence, the claim requires to have the national character at the moment when the damage was suffered, and to retain that character down to the moment at which it is decided ...." Bases of Discussion for the Conference Drawn up by the Preparatory Committee League of Nations Doc. C.75.M.69.1929.V (1929), reprinted in 2 League of Nations Conference for the Codification of International Law 119301 423, 562-67 (Shabtai Rosenne ed., 1975) (emphasis added). More recently, States similarly expressed "strong support . . . for the retention of the customary rule, i.e. that diplomatic protection could only be exercised on behalf of a national of the plaintiff State, and that the link of nationality must exist from the first to the last moment of the international claim." Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly During Its Fifty-Sixth Session, U.N. Doc. A/CN.4/521, � 74 at 11 (Jan. 21, 2002) (emphasis added).

It is clear that the diese ad quem stated in Articles 4 and 20 does not represent customary international law. The United States believes the Commission should amend its draft to reflect

claims, "the claimants having acquired American nationality" during the fourteen years between the date the claims were first filed and the date the memorial was submitted); Chopin, 60 French and American Claims Commission, 1880-1884, Records of Claims (undated) (claim formally presented by France through diplomatic channels on Aug. 30, 1864, withdrawn by May 24, 1883 motion to dismiss claim as to one beneficiary who had since become a U.S. national by marriage); Report of Robert S. Hale,Esq., [1873, Part II, Vol. III] U.S. Foreign Relations 14 (1874) (report of agent before British and American Claims Commission that the commission was unanimous that the claimant in the Gribble case lacked standing as a British subject because he "had filed his declaration of intention [to seek U.S. citizenship]. . . before the presentation of his memorial, had subsequently, and pending his claim before the commission, completed his naturalization, and was at the time of the submission of his cause a citizen of the United States.").
5 The Commentary to Draft Article 4 claims that there is "some disagreement in judicial opinion over the date until which the continuous nationality of the claim is required." Report of the International Law Commission on the Work of Its Fifty-fourth Session, United Nations GAOR, 57th sess., Supp. 10, U.N. Doc. A/57/10 (2002) at 179 (footnote omitted). No citations are provided, and no reference is made to the clear State practice cited here.

the customary rule. The United States reserves its views on other aspects of Draft Article 4, as well as the other draft articles adopted on first reading.

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