Rapport définitif - Rapport No. 14, 1954

Cas no 95 (Etats-Unis d'Amérique) - Date de la plainte: 01-JANV.-54 - Clos

A. A. The complainants' allegations

1. 32. In their different communications the complainants protest against the application of the United States Immigration and Nationality Act, 1952, against alien seamen on board ships calling at American ports. In support of this protest, the following allegations are made.
2. 33. The Act, although relating in the first place to Communists, is in fact directed against the commercial development of other countries, with a view to ensuring that United States shipowners and airlines shall have control of maritime and air transport.
3. 34. It is also contended that the Act infringes the fundamental rights of ships and their crews ; these, although not enjoying the rights conferred by extra-territoriality, ensure in freedom, while respecting the laws and customs of the different countries, the transport of merchandise through all seas and to all ports, within the provisions laid down by international maritime law. This law, it is emphasised, has evolved out of centuries of international maritime practice which no government has the right to ignore or to seek to change.
4. 35. Being obliged to obtain entry visas, alien seamen are subjected to detailed questioning concerning their political and trade union convictions, a discriminatory measure which infringes both freedom of opinion and freedom of association.
5. 36. Under the Act the owners of any foreign ship entering an American port are obliged to pay a fine of 1,000 dollars in respect of each crew member who does not have a United States visa. The General Transatlantic Company, it is alleged, had to pay a fine of 9,000 dollars because the M.S. La Baule called at Los Angeles with nine men among its crew to whom the United States Consul at Fort-de-France had refused to issue visas. The United States authorities, through the threat of fines, exercise pressure on shipowners to put ashore seamen who do not satisfy the requirements of the United States Act or who are not authorised by the United States Consul to enter the territorial waters of the United States on board foreign ships. As an illustration of this practice the complainants refer, in particular, to the following cases. The Federation of Greek Maritime Unions alleges that, according to reliable information, the United States Consul at Piraeus refused visas to members of certain crews, thus preventing them from going to the United States to join Greek ships and ships under other flags but owned by Greek nationals. Further, the captain of the M.S. Efthalossos, also owned by a Greek, dismissed a fireman, Athanassios Sardis, himself a Greek national, at Cork in April 1954, because the United States Consul at Cork had refused Sardis an entry visa to the United States, whither his ship was due to sail. The Trade Unions International of Transport, Port and Fishery Workers and the French National Federation of Maritime Trade Unions, in their communications dated respectively 16 February 1954 and 6 July 1954, allege that seamen at Fort-de-France, embarked on ships of the General Transatlantic Company based on Fort-de-France, were put ashore because the United States Consul had refused them visas. Such was the case, for example, with regard to six men of the La Coubre, who were put ashore on 12 January 1954, on the eve of the ship's departure from Fort-de-France. To the crew members of La Baule the United States Consul at Fort-de-France is alleged to have put the following questions : " Do you belong to a union ? Which union ? Up to what month have you paid your union contributions ? Do you read the paper Justice ? " The men, whether union members or not, had to present a letter from the union secretary stating that they were not members or, in default of this, a union card showing that subscriptions were in arrears. Finally, it is claimed, the Consul advised them not to belong to the Communist-inspired C.G.T union and not to read Justice. These practices, it is declared, show that United States Consuls exercise " intolerable pressure " on foreign seamen in violation of fundamental human rights.
   • ANALYSIS OF THE REPLY
6. 37. In its communication dated 14 October 1954 the Government of the United States observes that the complainants' allegations are similar to those communicated to it by letters dated 13 and 14 July 1953. As these allegations relate to screening measures applied to alien seamen seeking shore leave at American ports, they are of a purely political nature. In fact, Section 221 (g) of the Immigration and Nationality Act, which is applicable in such cases, forbids the issuance of a visa to an alien by a consular official if the latter knows or has reason to believe that such alien comes within a class prohibited from entering the United States under Section 212 of the Act. Under the Act, alien seamen stand on the same footing as other aliens with respect to conditions of eligibility for entry into the United States. Section 273 of the Act makes it unlawful to bring any alien to the United States who does not have a valid visa and the party bringing in such alien is liable to a fine of 1,000 dollars. In carrying out the duties assigned to them under this Act, consular officers ask question of all aliens, including alien seamen, necessary to determine whether they belong to any of the categories excludable under the Act. The Government emphasises that this questioning "does not, nor is it designed to, encourage, discourage or interfere with the acknowledged right of workers to join trade unions of their own choosing or to engage in collective bargaining through their selected representatives or in other concerted activities for their mutual aid or protection ".
7. 38. The Government of the United States adds that an investigation was made with regard to the methods of screening employed by the United States Consul at Fort-de-France in dealing with the crew of the La Baule. The investigation revealed that only the customary legitimate questions concerning membership in various organisations, necessary to carry out the purposes and intent of the Act, were asked by the United States Consul. No letter showing non-membership in any organisation was requested from the seamen and no advice was given to them with respect to their union affiliation or reading of any publications. Eleven members of the crew of the La Baule were found from their statements and other information submitted to be excludable by reason of falling within a class of persons denied entry to the United States under Section 212 (a) (28) (I) (i) of the Act. Nevertheless, states the Government, " to guard against injustice being done to any individual ", further investigations were made of the seamen to whom visas had been refused, with the result that between 19 and 25 February 1954 individual visas were issued to eight of the 11 seamen originally refused visas.
8. 39. The Government concludes that, no infringement of trade union rights having occurred, the complaints are without merit in fact and in law.

40. In their allegations the complainants criticise the United States Immigration and Nationality Act of 1952 which revises the laws relating to immigration, naturalisation and nationality.

1. 41. The relevant provisions of this Act read as follows:
2. Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
3. ......................................................................................................................................................
4. (28) Aliens who are, or at any time have been, members of any of the following classes:
5. (A) Aliens who are anarchists;
6. (B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;
7. (C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, (iv) the Communist or any other totalitarian party of any State of the United States, of any foreign State, or of any political or geographical subdivision of any foreign state, (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party, or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt : Provided, That nothing in this paragraph, or in any other provision of this Act, shall be construed as declaring that the Communist Party does not advocate the overthrow of the Government of the United States by force, violence, or other unconstitutional means ;
8. (D) Aliens not within any of the other provisions of this paragraph who advocate the economic, international and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization that advocates the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organisation or paid for by the funds of, or funds furnished by, such organization ;
9. (E) Aliens not within any of the other provisions of this paragraph, who are members of or affiliated with any organization during the time it is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950, unless such aliens establish that they did not have knowledge or reason to believe at the time that they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or reason to believe) that such organization was a Communist organization ;
10. (F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law ; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character ; or (iii) the unlawful damage, injury, or destruction of property ; or (iv) sabotage;
11. (G) Aliens who write or publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or who knowingly have in their possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating or teaching (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law ; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character ; or (iii) the unlawful damage, injury, or destruction of property ; or (iv) sabotage ; or (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship ;
12. (H) Aliens who are members of or affiliated with any organization that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in paragraph (G);
13. (I) Any alien who is within any of the classes described in subparagraphs (B), (C), (D), (E), (F), (G) and (H) of this paragraph because of membership in or affiliation with a party or organization or a section, subsidiary, branch, affiliate, or subdivision thereof, may, if not otherwise ineligible, be issued a visa if such alien establishes to the satisfaction of the consular officer when applying for a visa and the consular officer finds that (i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purposes, or (ii) (a) since the termination of such membership or affiliation, such alien is and has been, for at least five years prior to the date of the application for a visa, actively opposed to the doctrine, program, principles, and ideology of such party or organization of the section, subsidiary, branch, or affiliate or subdivision thereof, and (b) the admission of such alien into the United States would be in the public interest. Any such alien to whom a visa has been issued under the provisions of this subparagraph may, if not otherwise inadmissible, be admitted into the United States if he shall establish to the satisfaction of the Attorney General when applying for admission to the United States and the Attorney General finds that (i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and when necessary for such purposes, or (ü) (a) since the termination of such membership or affiliation, such alien is and has been, for at least five years prior to the date of the application for admission, actively opposed to the doctrine, program, principles and ideology of such party or organization or the section, subsidiary, branch, or affiliate or subdivision thereof, and (b) the admission of such alien into the United States would be in the public interest. The Attorney General shall promptly make a detailed report to the Congress in the case of each alien who is or shall be admitted into the United States under (ii) of this subparagraph ;
14. (29) Aliens with respect to whom the consular officer or the Attorney General knows or has reasonable ground to believe probably would, after entry, (A) engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security, (B) engage in any activity a purpose of which is the opposition to, or the control or overthrow of the Government of the United States, by force, violence, or other unconstitutional means, or (C) join, affiliate with, or participate in the activities of any organization which is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950.
15. ......................................................................................................................................................
16. Sec. 221. (g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law ....
17. Sect. 273. (a) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel or aircraft, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have an unexpired visa, if a visa was required under this Act or regulations issued thereunder.
18. (b) If it appears to the satisfaction of the Attorney General that any alien has been so brought, such person, or transportation company, or the master, commanding officer, agent, owner, charterer, or consignee of any such vessel or aircraft, shall pay to the collector of customs of the customs district in which the port of arrival is located the sum of $1,000 for each alien so brought ....
19. 42. It is alleged in the first place that this Act, by ensuring the control by United States companies of maritime and air transport is in fact directed against the commercial development of other countries. As this allegation does not bring into question the exercise of trade union rights, the Committee considers that it does not fall within its competence.
20. 43. It is alleged also that the Act, by reason of its application to alien seamen on board ships entering the territorial waters of the United States, infringes the principles and practice of international maritime law which no government can change by its unilateral action. While fully recognising that international law cannot be changed by unilateral action, the Committee considers that an allegation of a violation of international law as such lies outside its competence, except in so far as it may involve the exercise of trade union rights.
21. 44. In this connection, it is alleged that alien seamen, being obliged to obtain visas from United States Consuls, are subjected by the latter to questioning with regard, among other things, to their political opinions and trade union affiliations. This procedure in itself, it is claimed, is contrary- to generally recognised trade union rights. Such an infringement is stated to have occurred with respect to the trade union rights of the crew members of the ship La Baule, who, according to the complainants, not only were required by the United States consular official to produce documents showing that they were not members of a union but were also advised by him not to belong to a particular trade union, on the pretext that it was Communist-inspired, and not to read certain publications.
22. 45. In its reply the Government states that in carrying out their duties the consular officials put to all the persons concerned the questions necessary to determine whether they belong to a class of persons prohibited under the Act from entering the United States. It denies that this questioning either does, or is intended to, encourage, discourage or interfere with the right of workers to join trade unions of their own choosing. In particular, having made an investigation into this matter, the Government denies that the consular official at Fort-de-France required members of the crew of La Baule to produce a document showing that they did not belong to a union or that he advised them not to belong to a particular trade union or to read certain publications. The Government emphasises that these investigations revealed that the official concerned put only the customary questions respecting membership in various organisations necessary to carry out the purposes and intent of the Act.
23. 46. The questioning of alien seamen before they are admitted to the territory of the United States has already been the subject of an earlier complaint (Case No. 71, United States). In that case, the Committee took the view-subject to a reservation to which reference is made in paragraph 49 below---that this question related to the sovereign right belonging to any country to decide who shall and who shall not be admitted to its territory. Referring specifically to a number of earlier decisions, the Committee expressed the view that it is not called upon to deal with the general questions of aliens not covered by international Conventions. In such circumstances, the question being primarily one of the admission of aliens rather than of respect for a general human right, particularly cogent evidence of an infringement of trade union rights would be necessary.
24. 47. In the present case the further allegation is made that, in the course of his questioning of the crew of the ship La Baule, the consular officer of the United States at Fort-de-France exercised pressure on the freedom of the persons concerned to belong to the trade union of their own choosing. The Committee considers that, if any pressure should be exercised on workers during their interrogation in order to influence them with respect to their free choice of a trade union, such pressure might constitute an infringement of freedom of association. But, in its reply, the Government emphasises that the questioning does not, nor is it designed to, encourage or discourage workers to join trade unions of their own choosing. In the present case the Government declares, on the basis of investigations which it has made, that the consular official at Fort-de-France did not try to influence the seamen in their choice of a trade union but adhered strictly to the legal provisions laid down. Having regard to the above statement on the part of the Government and noting with satisfaction that the Government caused an investigation to be made in order to verify the facts, the Committee considers that the complainants have not offered sufficient proof in support of their allegation and that, consequently, there is no reason for it to alter the conclusions which it reached in its examination of Case No. 71.
25. 48. Finally, it is alleged that the owners of ships carrying seamen to whom visas have been refused because of their trade union affiliations are fined under the Act and that, by the threat of fines being imposed, the American authorities are forcing shipowners to put men ashore, thus infringing the free exercise by these men of their trade union rights.
26. 49. It would appear from Sec. 273 (a) of the Act that any persons and, in particular, shipping and air transport companies or their representatives, render themselves liable to penalties if they bring to the United States any alien, whether a seaman or not, who is not in possession of a valid visa. The Committee, while recognising that the case in question relates to the bringing in of seamen, notes that this measure applies to the shipping companies not in their capacity as employers but in their capacity as carriers of aliens who have not satisfied the conditions laid down in the Immigration and Nationality Act and does not, in itself, constitute a discriminatory measure directed against the workers. But when it examined Case No. 71, the Committee expressed the view that if the application of such measures " were to result in workers being dismissed or otherwise prejudiced because of their trade union affiliations they might infringe the principle that workers should have the right to join trade unions of their own choosing ".
27. 50. In the present case the complainants cite a number of cases of seamen being put ashore because they had been refused visas by the American authorities. Two of these cases relate to Greek and two others to French seamen.
28. 51. With regard to the first case the Federation of Greek Maritime Unions declares that, according to reliable information, the United States Consul at Piraeus refused visas to members of certain crews, thus preventing them from going to the United States to join their ships. The Committee considers that this allegation is too vague to be examined further.
29. 52. The Federation of Greek Maritime Unions contends also that, in April 1954, the captain of the Efthalassos dismissed a Greek fireman, Athanassios Sardis, at Cork, because the United States Consul in Cork refused Sardis a visa to enter the United States, whither his ship was due to sail. The Committee observes that the complainant, while declaring that the seaman concerned was dismissed because the United States Consul had not issued to him the necessary visa to permit him to continue his voyage, has not produced any evidence to indicate that his trade union affiliation was a determining factor in the refusal of his visa and, therefore, in bringing about his dismissal. In these circumstances, the Committee considers that the complainant has not offered proof that any infringement of trade union rights took place.
30. 53. The third case concerns six crew members of the General Transatlantic Company's ship La Coubre. The Trade Unions International of Transport, Port and Fishery Workers alleges that the Company in order to avoid having to pay a fine of 6.000 dollars on arrival in the United States, put these men ashore on 12 January 1954, on the eve of the ship's departure, as visas had been refused to them by the United States Consul at Fort-de-France. The Committee observes that here again, as in the preceding instance, the complainant has given no details which can cause it to be concluded that the trade union affiliation of the persons concerned was the determining factor in the refusal of visas. The Committee considers, therefore, that here again the complainant has not offered proof of any infringement of freedom of association.
31. 54. The last case is that of the crew members of La Baule. In its communication dated 16 February 1954 the Trade Unions International of Transport, Port and Fishery Workers alleges that the owners of this ship were fined 9,000 dollars because it had on board nine seamen who did not have visas. In its further communication dated 6 July 1954 the French National Federation of Maritime Trade Unions, while stating in general terms that seamen from Fort-de-France, after joining ships owned by the General Transatlantic Company, have had to be put ashore because of the refusal of the United States Consul to issue visas to them, emphasises especially, as mentioned in paragraph 36 above, that the United States consular official exercised " intolerable pressure " against the crew members of La Baule to cause them to leave the trade union of their choice. In its reply the Government not only denies these allegations, as mentioned in paragraph 45 above, but states also that " to guard against injustice being done to any individual " further investigations were made with the result that individual visas were issued to eight of the eleven seamen to whom visas had originally been refused because of their free affiliation to one of the political organisations covered by the Act (Sec. 212 (a) (28) (I) (i) of the Act).
32. 55. The Committee notes that the French Federation states simply that seamen in ships belonging to the General Transatlantic Company were put ashore, without specifying whether reference is intended in this case to crew members of the ship La Baule. The Trade Unions International of Transport, Port and Fishery Workers alleges only that the owners of this ship were fined by the authorities at Los Angeles because it had on board men who were not in possession of visas. It is not apparent, therefore, from these allegations that members of La Baule's crew have actually been dismissed. In these circumstances, and having regard to the fact that the competent United States authorities, after making further investigations " to guard against injustice being done to any individual ", issued visas to eight of the eleven seamen concerned, the Committee considers that the complainants have not offered sufficient proof to show that any infringement of trade union rights occurred.

The Committee's recommendations

1. 56. With regard to the case as a whole the Committee, while noting that the measures taken by the United States authorities in application of the Immigration and Nationality Act relate to the sovereign right which every country has to decide who shall and who shall not be admitted to its territory, is of the opinion that, if the application of these measures were to influence workers in their free choice of a trade union or to result in workers being dismissed or otherwise prejudiced because of their trade union affiliations, they might infringe the principle that workers have the right to join trade unions of their own choosing. It has already, on several occasions, emphasised the importance which it attaches to due process in all cases involving personal rights. In this connection, the Committee notes the statement of the Government of the United States to the effect that these measures do not, nor are they designed to, encourage, discourage or interfere with the right of workers to join trade unions of their own choosing. The Committee observes also that the competent United States authorities have, in the cases in question, made investigations " to guard against injustice being done to any individual " as a result of these measures being applied, and that, as the result of such investigations, visas have been issued in certain cases in which they were originally withheld. In these circumstances, the Committee considers that the complainants have not offered sufficient proof in support of their allegations that seamen have been dismissed or have otherwise suffered prejudice by reason of their trade union affiliations and recommends the Governing Body to decide that the case does not call for further examination.