International Nationality Claims

Libya Claims: Nationality in 2013

United States views on international law [1] in relation to Libya Claims: Nationality: In Claim of SUBROGATED INTERESTS TO PAN AMERICAN WORLD AIRWAYS, INC., Claim No. LIB-II-171, Decision No. LIB-II-161 (2013), the Commission addressed the continuous nationality requirement as it applies to insurers, reinsurers, and subrogees. The claim arises out of the bombing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988 and was brought by a group of companies that describe themselves as the “Subrogated Interests to Pan American World Airways, Inc.” Excerpts follow (with record citations and footnotes omitted) from the Commission's final decision, dated January 30, 2013.

Some Aspects of Libya Claims: Nationality

The Commission concluded in the Proposed Decision that it lacks jurisdiction over the Pan Am Subrogees' claim for a second reason as well: the Pan Am Subrogees have failed to establish that the claim was owned by U.S. nationals continuously from the date of the injury to the date of the Claims Settlement Agreement. The claimants argue on objection that the “Commission errs in imposing a continuous nationality requirement in the context of this claim.” Specifically, the claimants contend that the Commission has ignored the purposes of the Claims Settlement Agreement, which they assert was intended to resolve all claims of the “Parties and their nationals.” According to claimants, this includes the Pan Am 103 victims, Pan Am, and (since the claimants contend that they stand in the shoes of the Pan Am 103 victims and Pan Am) them as well.

Developments

The Proposed Decision rejected these arguments as inconsistent with the Claims Settlement Agreement, as it has been implemented by the Libya Program referral letters. The January Referral Letter states that, as a matter of jurisdiction, Category F only applies to claims of “U.S. nationals.” January Referral Letter, in this world legal Encyclopedia, ¦8. In Claim of [redacted], Claim No. LIB-I001, Decision No. LIB-I-001 (2009), the Commission held that in order for a claim to be compensable, the claim must have been held by a “national of the United States” continuously from the date it arose until the date of the Claims Settlement Agreement. The Proposed Decision also quoted from Claim of [redacted], Claim No. LIB-I-049, Decision No. LIB-I-019 (2011), in explaining that the continuous nationality requirement is a matter of customary international law and that the United States recognizes it as such:

As a general matter, the United States continues to recognize the continuous nationality rule as customary international law. For example, the United States' 2006 comments on the International Law Commission's Draft Articles on Diplomatic Protection clearly convey the United States' position that the continuous nationality requirement—that nationality “be maintained continuously from the date of injury through the date of resolution”—reflects customary international law.

PD at 13 (quoting [redacted] at 6-8).

Details

Moreover, for purposes of bringing a claim before this Commission, the fact that the Claims Settlement Agreement was intended to resolve all claims of the “Parties and their nationals” is irrelevant. As the Commission explained in great detail in [redacted]:

Equally unsuccessful is claimant's assertion at the oral hearing that the CSA and the LCRA evince a “clear intent” to settle all claims against Libya, “not just the claims of those claimants meeting the continuous nationality requirement.” The question here is not whether the United States intended to settle all claims in U.S. courts against Libya— clearly it did, and the settlement of all claims was likewise a primary objective of Libya. E.O. 13477 makes this abundantly clear by directing, in sections 1(a) and (b), respectively, the settlement of claims of “United States nationals” and those of “foreign nationals.”

The question is which settled claims were to be the subject of compensation by the Commission from the fund established in Article II of the CSA. … [T]he intent of the drafters of the CSA, the LCRA or the December Referral Letters to settle all claims against Libya does not shed light on when a person must be a U.S. national in order to qualify for compensation under the settlement.

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Also without merit is claimants' argument that because the continuous nationality requirement is not explicitly mentioned in the Claims Settlement Agreement, the drafters implicitly meant to reject the requirement. Again, [redacted] speaks directly to the issue:

Claimant's assertion that because there is no language in any of these documents specifying the continuous nationality requirement, one cannot be imposed, would have some weight were it not for the fact that the continuous nationality requirement … [is a] long-standing principle[] of international law consistently applied and advocated by the United States to the present day. Consequently, any departure from [this] principle[] would have been clearly articulated and not merely implied. In other words, the absence of language cannot be grounds for departure from well-settled law.

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The Proposed Decision thus concluded, again quoting from [redacted] as follows:

Given the fact that the continuous nationality rule is recognized by the United States as customary international law, and that this rule has been applied by both this Commission and its predecessors, a derogation from this rule will not be assumed by the Commission from the absence of language in any of the operative documents that inform and define this program. Any derogation must be clearly expressed, and there has been no such express derogation in this program. Consequently, the Commission adheres to its earlier finding that in order for a claim to be compensable in this program, it must have been owned by a U.S. national continuously from the date of injury to the date of the Claims Settlement Agreement.

PD at 13 (quoting [redacted] at 6-8).

Resources

Notes

1. Libya Claims: Nationality in the Digest of United States Practice in International Law