FOREIGN SEIZURES OF U.S. FISHING VESSELS THURSDAY, JUNE 22, 1967 HOUSE OF REPRESENTATIVES, WILDLIFE CONSERVATION OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES, Washington, D.C. The committee met at 2:45 p.m., pursuant to call, in room 1334, Longworth House Office Building, Hon. John D. Dingell (chairman of the subcommittee) presiding. Mr. DINGELL. The subcommittee will come to order. The Chair is going to announce that pursuant to an understanding between the staff and the administration witnesses that after the completion of the testimony today such portions as are confidential will be stricken. The balance will be made part of the official transcript. I hope Mr. McKernan and the other gentlemen will approve sending that part not confidential to the other witnesses for comments so that they may haev an opportunity to express their views on what you have testified to today. With that the Chair will recognize Mr. Donald McKernan, Special Assistant for Fisheries and Wildlife of the Department of State. Mr. McKernan, the Chair is happy to welcome you for whatever comments you have. The Chair notes that you have others with you at the table and if you choose to have anyone else present it will be quite appropriate. If you will identify those with you it will be very much appreciated. STATEMENT OF DONALD MCKERNAN, A SPECIAL ASSISTANT FOR FISHERIES AND WILDLIFE, THE STATE DEPARTMENT; ACCOMPANIED BY M. R. BARNEBEY, COUNTRY DIRECTOR FOR ECUADOR AND PERU AFFAIRS; WILVAN G. VAN CAMPEN, FOREIGN AFFAIRS OFFICER; AND ERNEST L. KERLEY, ASSISTANT LEGAL ADVISER FOR INTERNATIONAL CLAIMS, THE DEPARTMENT OF STATE Mr. McKERNAN. Thank you very much, Mr. Chairman. I appreciate your consideration in making this a closed session and giving us the opportunity to examine the transcript. I have on my right Mr. R. Barnebey, Country Director for Ecuador and Peru Affairs of the Department of State; on my left Mr. Ernest L. Kerley, Assistant Legal Adviser for International Claims. I have some other specialists with me also, Mr. Chairman, and, as appropriate, perhaps we can call on them if the occasion arises for some special testimony where we might help the committee. Mr. DINGELL. Very fine. Mr. McKERNAN. Mr. Chairman and gentlemen of the committee, my name is Donald L. McKernan and I am Special Assistant for Fisheries and Wildlife to the Secretary of State. I wish to make a statement of the views of the Department of State concerning legislation pending before this committee which would amend the Fishermen's Protective Act. Over the past 15 years the Department of State has been seriously concerned over the foreign relations problems posed by seizures by certain Latin American countries of U.S.-flag vessels operating off the coasts of Latin America in waters which this Government and the majority of the world's governments consider to be the high seas. This situation arises from the claims of the Latin American countries to jurisdiction over fishing and the right of license fishing vessels in territorial waters or fishery zones off their shores to varying distances in excess of the 3 miles recognized by the United States for territorial waters and the 12 miles which we recognize as the maximum for fishery zones. Typically, U.S.-flag fishing vessels operating in what the United States considers to be the high seas are seized by naval or fishery patrol units of the coastal country, forced to proceed to port of the coastal country, accused of violation of licensing regulations of the coastal country, and fined. Some of the coastal countries involved also confiscate the vessels' gear and catch. The incidents also involve losses of fishing time of varying duration and consequently losses of income to the vessel owners and the fishermen. Over the past 8 years here there have been 102 seizures of U.S.-flag fishing vessels by Latin America countries that have been brought to the Department's attention. Countries involved have been Colombia, Ecuador, El Salvador, Honduras, Mexico, Panama, and Peru. These seizures have fallen into two principal types: Seizures of shrimp boats in the Gulf of Mexico, principally by Mexico; and seizures of tuna boats in the Pacific, principally by Ecuador and Peru. In the past 3 years there has been an increase in the latter type of seizure. For the seizure cases recorded in the Department's files, the fines imposed total $489,470. Claims for reimbursement of such fines certified to the Secretary of the Treasury for payment by the Department under the Fishermen's Protective Act to date total $332,702.80. These illegal seizures and the losses which they entail have naturally aroused the resentment of vessel owners and fishermen and of the interested public. Demands have been made upon Congress and upon the executive branch for retaliation against the offending governments in the fields of foreign aid, trade, and defense cooperation. Broader considerations of our general foreign policy toward Latin America have militated against adoption of retaliatory measures as they have also precluded a resort to naval force to protect our fishing vessels on the high seas. The feeling and movements generated by the seizures have definitely been detrimental to progress toward our foreign policy objectives in Latin America. We have therefore made repeated efforts through various channels to bring about a solution to the problem through discussion and negotiation with the Latin American Governments involved and with interested elements of Government and the fishing industry in this country. (Confidential material deleted.) Mr. McKERNAN. In recent years the Department has had repeated consultations with representatives of the affected segments of the fishing industry in order to seek their guidance in its efforts to find a solution. The Department has consulted on a continuing basis with interested Members of Congress in order to seek their advice and to keep them informed of developments. The Department has called its concern over this problem to the attention of governments of the Latin American countries involved through repeated representations by our embassies to high officials of the governments and through discussions by officials of the Department with diplomatic representatives of the governments in Washington. Naturally each seizure incident has been the subject of diplomatic protest, including demands for speedy release of the vessel and reimbursement of fines and other losses. In February 1967 the Department proposed to the Governments of Chile, Ecuador, and Peru, which have pointly declared jurisdiction over fisheries to a distance of 200 miles from their coasts, that the dispute be submitted to arbitration or to adjudication by the International Court of Justice or that it be made the subject of a conference, to be attended also by Japan and Canada, as two countries significantly engaged in the tuna fishery off the Pacific coast of South America. The conference, as proposed by the United States, would reserve the legal position of all participants, carry out discussions on the basis of practical problems of both coastal and high seas fishing countries, consider an agreement setting up a conservation and management system for the waters off the west coast of South America with special consideration for the fishery problems of the coastal countries, and discuss a high seas fishery regime providing for full and wise use of the fishery resources of the area. Chile, Ecuador, and Peru, after consulting among themselves, answered our proposal in identical notes. They were unwilling to participate in a conference of the kind proposed, insisted upon maintaining their juridical position and refused to consider the inclusion of Canada and Japan. The essential basis of their refusal was that their jurisdiction over fisheries to a distance of 200 miles from their coasts is not subject to question or argument. They expressed a willingness to engage in technical and scientific discussions aimed at increasing knowledge of the fishery resources of the area and improving their exploitation in the interests of themselves and the world community. The Department still considers that the most feasible way to a solution of this problem is through discussion and negotiation with the Latin American governments involved. We are examining the counter proposal by the three governments for technical and scientific discussions to determine whether it offers enough latitude to deal with the essential problems. (Classified material deleted.) Mr. McKERNAN. The various bills which we are considering here today are all proposed amendments to the act of August 27, 1954, commonly known as the Fishermen's Protective Act. The purpose of that act is to assist U.S. fishermen to continue their lawful operations on the high seas pending the attainment of a definitive solution to the vessel seizure problem. The act seeks to accomplish this purpose by encouraging the vessel operator to make such payments of fines as are required to secure the prompt release of his vessel when seized. During the period the act has been in force, U.S. fishermen have continued to carry on highly productive operations on their accustomed fishing grounds off the coast of South America despite the threat of seizure. The various amendments under consideration all have as their prime purpose the broadening of the present act to include compensation for charges other than fines which must be paid to secure release of a seized vessel and to cover, in varying degree, other kinds of direct and indirect losses arising out of vessel seizure. The Department is sympathetic to the general aim of these bills, considering that a broadening of coverage under the act of August 27, 1954, will more effectively assist U.S. fishermen to continue their operations on the high seas and relieve them of a part of the financial burden which devolves upon them incidentally to the existence of jurisdictional disputes between their government and the governments of other countries. As explained in greater detail in the Department's formal report to the chairman, the Department considers that several of the bills as presented have important shortcomings. For example, the payment entirely out of public funds for claims against foreign governments for losses arising out of vessel seizures would set a potentially troublesome and very expensive precedent for the many other types of claims which U.S. citizens have against foreign governments. A provision of H.R. 4451, one of the several bills before this committee, would require suspension of assistance under the Foreign Assistance Act to countries which fail to repay expenditures by the United States under the provisions of the act within 120 days. Adoption of this provision would remove flexibility in dealing with this problem and might well be detrimental in the conceivable case of a country where at a given time an abrupt discontinuance of aid could have political effects incalculably more damaging to our interests. Obviously, the Department opposes this type of amendment. For the reasons outlined above, the Department supports the amendments proposed by the Department of the Interior, which appears best designed to increase the effectiveness of the act without the shortcomings of the other proposed bills. This bill, copies of which have been furnished to the chairman, would enable the Government to reimburse for all types of charges necessary to secure release of the vessel, all actual costs and losses during the seizure and detention period, and for up to 50 percent of all income lost as a result of the seizure, This bill would avoid the undesirable precedent for other types of claims cases by introducing for the first time in this act the partici |