Rapport définitif - Rapport No. 11, 1954

A. A. The complainants' allegations

• Analysis of the Complaint
  93. 93 In a communication dated 10 December 1952 the complainant alleges that the United States Government decided that, as from 24 December 1952, the screening measures applied in the Merchant Marine and ports of the United States would be applied in the case of all foreign ships calling at United States ports. The complainant contends that, under such measures, seamen are compelled to submit to detailed interrogation on their personal situation, their political opinions and their trade union affiliations, and that, when their answers are not found to be suitable, the government concerned is asked to put ashore (débarquer) seamen who are not considered desirable.
  94. 94 The complainant alleges that this procedure, of which both United States seamen and foreign seamen are the victims, is contrary to trade union rights as recognised by the United Nations Charter and calls upon the United Nations to ensure recognition and respect of the rights of freedom of thought and association for seamen voyaging to the United States.
  95. 95 The complainant states that French seamen at Le Havre unanimously decided to refuse to reply to any questions other than those necessary to establish identity. The complainant supports this attitude, calls upon all seamen and seamen's trade unions to follow their example, and urges seamen's and dockers' organisations to organise protest demonstrations and to persuade United States crews to join such demonstrations and to address protest resolutions to the United Nations, the President of the United States and American consular and diplomatic representatives in all countries and ports.
• Analysis of the Reply
  96. 96 In its reply dated 6 October 1953 the Government contends that the allegations are vague and unsupported by facts and do not in fact charge infringement of trade union rights. The Immigration and Nationality Act 1952, under which screening measures are taken, requires that any alien member of the crew of any vessel or aircraft arriving in the United States must, in order to qualify for shore leave, establish that he does not fall within any of the classes designated in section 212 (a) of the Act as being inadmissible to the United States. Section 235 (a) of the Act requires inspection by an immigration officer of all aliens, including alien crewmen, seeking admission, or readmission, or the privilege of passing through the United States. Under the statute, a copy of which is attached to the reply, alien crewmen stand on the same footing as other aliens with respect to the requirement of establishing their eligibility for admission to the United States. In carrying out its statutory duties the U.S. Immigration and Naturalization Service asks questions of all aliens, including crewmen, necessary to discover whether they belong to any of the inadmissible categories mentioned in section 212 (a) of the 1952 Act. 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 ".

97. The complainant alleges that alien seamen are questioned by the United States authorities with respect, inter alia, to their trade union affiliations and may not enjoy shore leave in United States ports if their answers are deemed to be unsuitable. The Government states that, under the Immigration and Nationality Act, 1952, alien seamen, like all other aliens, are asked such questions as are necessary to determine whether or not they are admissible to the United States under section 212 (a) of the Act.

1. 98. Section 212 (a) of the Immigration and Nationality Act, 1952, provides:
2. Section 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 organization 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 (11) 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 (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 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. 99. Section 235 (a) of the Act provides as follows:
16. Section 235 (a) The inspection, other than the physical and mental examination, of aliens (including alien crewmen) seeking admission or readmission to, or the privilege of passing through, the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe. Immigration officers are hereby authorized and empowered to board and search any vessel, aircraft, railway car, or other conveyance, or vehicle in which they believe aliens are being brought into the United States. The Attorney General and any immigration officer, including special inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, re-enter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this Act and the Administration of the Service, and, where such action may be necessary, to make a written record of such evidence. Any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not be intends to remain in the United States permanently and, if an alien, whether he intends to become a citizen thereof, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 212...
17. 100. The Committee observes that the authorised officer may ask any questions, that is, including questions as to affiliation with trade unions or any other body, of any alien, including crewmen as well as others, as he deems necessary to ascertain whether a person is to be excluded under section 212 (a) of the Act. The complainant alleges that this procedure is contrary to trade union rights as recognised by the United Nations Charter, while the Government denies that the questioning does, or is intended to, encourage, discourage or interfere with the workers' right to join trade unions of their own choosing.
18. 101. The Committee considers that if the application of these 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. In this connection the Committee observes that, although the complainant alleges that, where alien seamen have given replies which are not found to be suitable to the questions put to them by the Immigration Service, their governments are asked to put them ashore. This allegation is not based on any provision in the legislation complained against. In these circumstances the Committee considers that the complainant in the present case has not offered any evidence to show that there has been any infringement of the exercise of trade union rights, and that the question before it relates rather to the exercise by a country of its sovereign right to decide who shall and who shall not be admitted to its territory.
19. 102. In a previous case, that relating to the United Kingdom (Hongkong) (Case No. 27), the Committee took the view that it is not called upon to deal with the general question of the status of aliens not covered by international Conventions and, in a further case, relating to the United Kingdom (Cyprus) (Case No. 38), which was submitted to it for an opinion at its first session, the Committee expressed the view that a question as to the sovereign right of a country to grant or refuse visas to aliens who may wish to enter it is not appropriate for reference to the Fact-Finding and Conciliation Commission.