Book

The Harvard Research in International Law: Contemporary Analysis and Appraisal
Edited by
John P. Grant J. Craig Barker
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Library of Congress Cataloging-in-Publication Data The Harvard research in international law : contemporary analysis and appraisal / Edited by John P. Grant and J. Craig Barker. p. cm. ISBN 978-0-8377-3038-7 (cloth : alk. paper) 1. International law Codification History. 2. International law Research History. 3. Justice. Administration of-International cooperation-History. 4. Judicial assistance-History. 5. International law and relations-History. 1.Grant, John P. II. Barker, J. Craig, 1966-I I. Title: Research in international law. KZ1293.H37 2007 341 dc22 2007024255
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TABLE OF CONTENTS
P reface ................................................................................................. C ontributors ................................................................................. Chapter 1. The Harvard Research: Genesis to Exodus and Beyond John P. Grant and J. Craig Barker ................................................... Chapter 2. Nationality R uth D onner .............................................................................. Chapter 3. Responsibility of States for Injuries to Foreigners James Crawford and Tom Grant ............................................... Chapter 4. Territorial Waters John P . Grant ............................................................................... Chapter 5. Diplomatic Privileges and Immunities E ileen D enza ................................................................................ Chapter 6. The Legal Position and Functions of Consuls J. Craig B arker ............................................................................. v ix
I 41 77 127 155 179
Chapter 7. Competence of Courts in Regard to Foreign States H azel Fox ..................................................................................... 203 Chapter 8. Piracy A lfred P. R ubin ............................................................................ Chapter 9. Extradition G eoff Gilbert ................................................................................ Chapter 10. Jurisdiction with Respect to Crime: Universal Jurisdiction and the Harvard Research M ichael P . Scharf ......................................................................... Chapter 11. Law of Treaties A nthony A ust ............................................................................... Chapter 12. Judicial Assistance Jerem y T hom as ............................................................................ Chapter 13. Neutrality Stephen C . N eff ........................................................................... 229 247
275 307 337 381
Chapter 14. Rights and Duties of States in Case of Aggression Elina Steinerte and Rebecca M.M. Wallace ............................... 405
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Harvard Research on International Law Appendix 1. Draft Convention on the Law of Nationality .............. 433 Appendix 2. Draft Convention on Responsibility of States for Damage Done in Their Territory to the Person or Property of F oreigners ............................................................................... Appendix 4. Draft Convention on Diplomatic Privileges and Imm unities .................................................................................. Appendix 5. Draft Convention on the Legal Position and Functions of Consuls ................................................................... Appendix 6. Draft Convention on Competence of Courts in R egard to Foreign States ............................................................. Appendix 7. Draft Convention on Piracy ........................................ Appendix 8. Draft Convention on Extradition ................................ Appendix 9. Draft Convention on Jurisdiction with Respect to Crim e ......................................................................................
437
Appendix 3. Draft Convention on Territorial Waters ..................... 441 445 453 463 469 475 487
Appendix 10. Draft Convention on the Law of Treaties ................. 493 Appendix 11. Draft Convention on Judicial Assistance ................. 503 Appendix 12. Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War ............................................. 513 Appendix 13. Draft Convention on Rights and Duties of States in Case of Aggression ................................................................. 537
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PREFACE
We became acutely interested in the Harvard Research in International Law while we were researching all aspects of international law for the second edition of the Encyclopaedic Dictionary of International Law in the early 2000s. We wrote, in fact rewrote from the first edition, an entry on the Harvard Research and that set us thinking that, while we knew of its existence and had in our writings and teachings referred to it, we were embarrassingly ignorant of how such an endeavor came to pass, what exactly it did (and how) and what contribution its thirteen projects made to future thinking and practice. We set about an initial investigation and concluded that there was a gap in the literature of international law in that no one had attempted a systematic appraisal of the Harvard Research. Determined to fill that void, we recruited experts in the various fields covered by the Harvard Research and invited them to contribute an appraisal on their area of expertise. The questions we proposed as guidelines for our contributors were simple: on what basis did the thirteen Harvard projects make their proposals for codification and what, if anything, has been the continuing impact of these proposals? Beyond these two suggested questions, we merely indicated a page-limit, leaving everything else to the contributors-the result of which is a fairly wide range of approaches. Along with diverse approaches, we expected, and received, a variety of citation styles, which we have left essentially unchanged. Because of the nature of this collection and the linking references within chapters, we decided that an index was unnecessary. We had no pre-set view as to the answers to these questions-or indeed to the larger question of the overall impact of the Harvard Research. Insofar as we thought about the larger question, we assumed that the Research had probably had some, but probably not much, effect on future developments. We knew it was cited in the literature, but often merely in a footnote at the beginning of a particular section of a work indicating the general sources on which the author was relying. We suspected that it was one of these sources that requires to be cited in a list of general authorities, but that it might only rarely, and in the most technical areas, be used as an authority for a particular proposition. In short, we thought that it might be often cited but probably never carefully studied.
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Harvard Research on International Law We have arranged the contributions in the order in which they were originally published by the American Society of International Law in a Special Supplement (for the three draft conventions in the first phase of the Research) and Supplements (for the ten draft conventions in the other three phases) to its prestigious Journal.The first chapter, written by us, attempts to place the Harvard Research in its historical context and in the context of subsequent thinking and practice in the thirteen areas with which it dealt. As appendices to the book are the texts of the thirteen draft conventions produced by the Harvard Research, though not the lengthy and useful "Comments" that accompanied each draft convention. At the time of the publication of this book, W.S. Hein is publishing a reprint of the entire Harvard Research, including the draft conventions and the "Comments," though not the appendices attached to each Harvard draft convention. All the material is available in the American Journal of International Law, and electronically at HeinOnline, but we are delighted that Hein agreed with us that a reprint was important and timely. We are grateful to the American Society of International Law, the copyright-holder, for giving permission for the reproduction of the Harvard Research draft conventions and "Comments." The Society not only published the Harvard Research phases when they were completed, but, through its members, clearly played a major role in the work of the Research itself. The purpose of all research being to establish the need for further research, we are committed to investigating what happened to the Harvard recognition project, which was never published and perhaps never completed. Somewhere-in the papers of Manley 0. Hudson, the Harvard law library or the papers of Edwin D. Dickinson or Lawrence Preuss, the reporters appointed to the project-there must be evidence of the project's fate. There are many to thank. First, of course, are the contributors, who eagerly embraced this project from the outset, followed the suggested guidelines and wrote analytical and perceptive chapters. We thank Sheila Jarrett, Senior Editor at William S. Hein & Co., Inc., for her constant encouragement, assistance and patience. We want to place on record our sincere appreciation to three fine student research assistants at Lewis & Clark School of Law: the redoubtable and indefatigable Courtney Watts, Grant's research assistant for two
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Preface
vii
years, who helped immeasurably with the introductory chapter; Tilah Larson, who also worked on the introductory chapter, especially the section on the International Law Commission; and Sarah Koteen, who assisted Grant with the chapter on territorial waters with a masterly analysis of the Franconia case. For this project, three of the ablest members of the Lewis & Clark Boley Law Library were drafted into service, associate director Tami Gierloff and reference librarians Wendy Hitchcock and Seneca Gray. John P. Grant J. Craig Barker February 2007
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CONTRIBUTORS
Anthony Aust retired in 2002 as Deputy Legal Adviser, Foreign and Commonwealth Office, London. He is the author of Modern Treaty Law and Practice, Cambridge University Press, 2nd ed. 2007, Chinese ed. 2005, and a Handbook of InternationalLaw, Cambridge University Press, 2005. He is a consultant to governments, international organisations and Kendall Freeman, the London solicitors, on international law; and a visiting professor of law at the London School of Economics, University College London, and other places. J. Craig Barker is Professor of Law at the Sussex Law School, University of Sussex where he teaches Public International Law and International Criminal Law. He is the author of The Protection of Diplomatic Personnel (2006) and is co-editor of the Encyclopaedic Dictionary of International Law (2nd ed., 2003) and International CriminalLaw Deskbook (2006), both with John P. Grant. James Crawford is Whewell Professor of International Law and Director of the Lauterpacht Research Centre for International Law, University of Cambridge. As a member of the United Nations International Law Commission (1992-2001), he was responsible for the first draft of the Statute for an International Criminal Court and subsequently was the ILC Special Rapporteur on State responsibility. He has appeared in more than 40 cases before international courts and tribunals, including the International Court of Justice and the International Tribunal for the Law of the Sea. He is a Senior Counsel of the New South Wales bar and a member of Matrix Chambers, London. Eileen Denza was formerly assistant Lecturer in Law, Bristol University and a Legal Advisor to the Foreign and Commonwealth Office, and Counsel to the EC Committee of the House of Lords. She is Visiting Professor of Law at University College London and author of Diplomatic Law (2nd ed., 1998) and The IntergovernmentalPillar of the European Union (2002). She is currently preparing a third edition of Diplomatic Law.
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Harvard Research on International Law Ruth Donner is former Adjunct Professor, and Acting Professor, of Public International Law, Faculty of Law, University of Helsinki, Finland. Together with articles and book reviews on public international law topics, her publications include: The Regulation of Nationality in InternationalLaw (1 st ed. Helsinki 1983, 2nd revised ed. Transnational Publishers N.Y. 1994), International Adjudication: Using the International Court of Justice (Helsinki, 1988) and King Magnus Eriksson "sLaw of the Realm. A Medieval Swedish Code (Helsinki, 2000, translator and editor). Lady Fox QC (Hazel) is formerly Director, of the British Institute of International and Comparative Law and General Editor of the International and Comparative Law Quarterly. She is a member of the Institut de droit international, a Bencher of Lincoln's Inn, Hon Fellow of Somerville College, University of Oxford, a member of the ILA Committees on State Immunity, Diplomatic Protection, Reparation for Victims of War Damage and a Barrister at 4-5 Grays Inn Square, She has published extensively including (with J L Simpson) International Arbitration: law andprocedure 1959; Editor InternationalLaw and Developing States Vol 11988: vol. II; An Introduction to International Economic law 1992; Joint Development of Qffshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary Vol L 1989, vol .1f, 1990; Law of State Immunity 2002, pb 2004. Geoff Gilbert is Professor of Law in the Department of Law, University of Essex. He was part of the Human Rights Centre's research programme on human rights in situations of acute crisis that was carried out on behalf of DFID. He has carried out human rights training on behalf of the Council of Europe and UNHCR in the Russian Federation (Siberia, the Urals and Kalmykskaya), Georgia, Bosnia-Herzegovina, Croatia, Macedonia and Kosovo. He has advised governments on their laws in Central and Eastern Europe, the Balkans and the FSU, and was the Director of the OSCE training programme on torture for judges in Serbia & Montenegro. He has acted as an expert consultant on refugees and terrorism for UNHCR. He is Director of Studies for the UNHCR Thematic Course on Refugee Law and Human Rights for Adjudicators He is the Editor in
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Contributors Chief of the International Journalof Refugee Law. He is the author of Responding to International Crime (2006). His specialisms are international human rights law, the protection of refugees and displaced persons in international law, and international criminal law. John P. Grant is Professor of Law, Lewis & Clark School of Law, Portland, Oregon, where he teaches International Law and International Human Rights, and Emeritus Professor of International Law, University of Glasgow, Scotland. Among his publications are the Encyclopaedic Dictionary of International Law (1st ed. 1986 with Parry, 2nd ed. 2003 with Barker), The Lockerbie Trial: A Documentary History (2004) and International CriminalLaw Deskbook (with Barker, 2006). Tom Grant is a senior research fellow of Wolfson College and a research associate of the Lauterpacht Centre for International Law, University of Cambridge. He has assisted on cases before various courts and tribunals and has acted as advisor or consultant on a number of public international law matters. He is admitted to the bars of Massachusetts, New York and Washington, DC. Stephen C. Neff is a Reader in Public International Law at the University of Edinburgh, School of Law. He is also a qualified lawyer in England, as well as in two jurisdictions in the United States. He is the author of Rights and Duties of Neutrals: A General History (2000). Alfred P. Rubin is Distinguished Professor of International Law, The Fletcher School of Law & Diplomacy, Tufts University, where he teaches seminars on Origins and Development of International Law, Legal Regulation of Armed Conflict and Law of the Sea. Among a wealth of his publications are the Law of Piracy (1988, revised 2nd ed., 1998) and Ethics andAuthority in InternationalLaw (1997). Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. In February 2005, Professor Scharf and the Public International Law and Policy Group, a Non-Governmental Organization he co-founded, were nominated for the Nobel Peace Prize by six
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Harvard Research on International Law governments and the Prosecutor of an International Criminal Tribunal for the work they have done to help in the prosecution of major war criminals. During the first Bush and Clinton administrations, Scharf served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations Human Rights Commission. Scharf is the author of over sixty scholarly articles and ten books, including Balkan Justice, which was nominated for the Pulitzer Prize in 1998, The International Criminal Tribunal for Rwanda, which was awarded the American Society of International Law's Certificate of Merit for the Outstanding book in International Law in 1999, and Peace with Justice, which won the International Association of Penal Law Book of the Year Award for 2003. Winner of the Case School of Law Alumni Association's 2005 "Distinguished Teacher Award" and Ohio Magazine's 2007 "Excellence in Education Award," Scharf teaches International Law, International Criminal Law, the Law of International Organizations, and a War Crimes Research Lab, which provides research assistance to the Prosecutors of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court, the Extraordinary Chambers in the Courts of Cambodia, and the Iraqi High Tribunal on issues pending before those international war crimes tribunals. Elina Steinerte is a Research Associate at the Law School of the University of Bristol. She has recently completed her PhD and is now working on the (UK) Arts and Humanities Research Council-funded project on the implementation of the Optional Protocol to the United Nations Convention against Torture. Co-author (with Wallace) of the Nutcases:PublicInternationalLaw (2007). Jeremy A. Thomas (LLB, LLM) is a partner in the international law firm Ashurst, and he is based in London, England. He is the author of numerous articles and has a special interest in the history of international law. His publications include the Intertwining of Law and Theology in the Writings of Hugo Grotius in the Journal of the History of International Law (1999) and History and International Law in Asia: A Time for Review in Essays in Honour of Wang Tieya (1994).
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Contributors
xiii
Rebecca M.M. Wallace is Professor of International Human Rights Law, The Robert Gordon University, Aberdeen, Scotland. Her publications include A Public InternationalLaw Nutshell (2006), International Law. A Student Text (1st ed. 1987, 5th ed. 2005) and International Human Rights. Text and Materials (2001). She is a member of Lincoln's Inn, a non-practising member of the English Bar and a parttime Immigration Judge.
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Chapter 1
THE HARVARD RESEARCH: GENESIS TO EXODUS AND BEYOND

John P. Grant andJ. Craig Barker
In the 1928 volume of the American Journal of International Law, a brief note appears in the Editorial Comment section, over the name of Manley 0. Hudson. It begins: "On the initiative of the Faculty of the Harvard Law School, a group of Americans interested in international law has undertaken to organize a co6perative research in international law, dealing with the three topics which have been selected for the agenda of the [League of Nations] Conference for the Codification of International Law, to be held in 1929. "1 In two pages, the note goes on to outline the involvement of the League's Assembly in the codification of international law, the identification of nationality, State responsibility and territorial waters as the first three topics selected for codification, the appointment at Harvard of an advisory committee of distinguished experts, under the chairmanship of George W. Wickersham of New York, and of an executive committee, with Hudson as director of research, and the nomination of reporters for the three codification topics. From this modest announcement emerged a project that would endure for 12 years, from 1927 to 1939, produce a total of 13 draft conventions, with accompanying commentaries, and contribute substantially to the development of international law in the 20th Century.
League of Nations' Codification Efforts

The Harvard Research has to be located in the context of the contemporary efforts to codify international law during the era of the
1 Hudson,
Research in International Law, 22 Am. J. L. 151 (1928). A note Int'l
by Hudson in almost identical terms appeared in 22 Am. Pol. Sci. R. 451 (1928). The conference to which Hudson referred in fact took place in 1930. 2 An excellent overview of the Research and Hudson's role in it is provided by
Kenny, Manley 0. Hudson and the Harvard Research in International Law 1927-40, 11 Int. Lawyer 319 (1977).
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Harvard Research on International Law League of Nations. The simple truth is that the League's Covenant 3 had no provision equivalent to Article 13(l)(a) of the United Nations Charter, requiring the General Assembly to initiate studies and make recommendations in order, inter alia, to "encourag[e] the progressive development of international law and its codification." In fulfillment of its duties under Article 13(1)(a), the U.N. General Assembly established the International Law Commission in 19474 and this body has been the principal instrument through which the progressive development of international law and its codification have been undertaken. 5 No organ of the League of Nations had any obligation in respect of international law. Nonetheless, the League did involve itself in the codification of international law,6 but with limited palpable success. As early as 1920, the Advisory Committee of Jurists charged with the task of drafting the Statute of the Permanent Court of International Justice recommended the continuation of the work of the Hague conferences of 1899 and 1907 with a view to developing and codifying international law.7 It was not until 1924 that the League's Assembly acted on this recommendation, at which time it recommended that the Council convene a committee of experts to prepare a list of areas of international law in which international agreement was "most desirable and realizable;" and, after receiving the views of governments, to report to the Council on the areas "sufficiently ripe" for agreement and on the procedure that might be followed for the
3 225 C.T.S. 188. 4 By Resolution 174 (II) of 17 November 1947, to which was annexed the
Commission's Statute; reprinted in 42 Am. J. Int'l L. (Supp.) 2 (1948). 5 See Briggs, The International Law Commission (1965); Ramcharan, The InternationalLaw Commission: Its Approach to the Codification and Progressive Development of InternationalLaw (1973); Sinclair, The International Law
Commission (1987); Anderson, Boyle, Lowe and Wickremasinghe, The International Law Commission and the Future of InternationalLaw (1998); Watts, The InternationalLaw Commission 1947-1998 (1999); Morton, The International Law Commission of the United Nations (2000).
6
The League's involvement is succinctly set out, with the relevant resolutions
appended, in the HistoricalSurvey of Development of InternationalLaw and its

Codification by InternationalConferences 1947, U.N. Doc. A/AC. 10/7, Part I11;
reprinted in 41 Am. J. Int'IL. (Supp.) 29 (1947). 7 Resolution of 24 July 1920, Procds-Verbaux of the Proceedings of the Committee, 1920, 747.
The Harvard Research: Genesis to Exodus elaboration of agreements in those areas. 8 In response, the Council established a committee, termed the Committee [of Experts] for the Progressive Codification of International Law, consisting of seventeen distinguished jurists, including, interestingly, George W. Wickersham, who was later to play such a prominent part in the Harvard Research. 9 The Committee of Experts met in three sessions, in April 1925, January 1926 and April 1927.10 At the first session, the Committee identified eleven fields of international law to be investigated by subcommittees "with a view to later elaboration of detailed proposals." ' 1 They were nationality, territorial waters, diplomatic privileges and immunities, status of government ships engaged in commerce, extradition, State responsibility, treaties, piracy, prescription in international law, exploitation of the product of the seas and extraterritorial jurisdiction. 12 The second session was devoted to the consideration of the reports of the sub-committees and the formulation of "questionnaires." 13 Questionnaires Nos. 1 (nationality), 14 2 (territorial waters) 15 and 6 (piracy) 16 each comprised a narrative of the issues involved in codification and a preliminary draft convention. 1 Questionnaires No. 3 (diplomatic privileges and immunities), 7 4 18 5 (treaties) 19 and 7 (exploitation of the product (State responsibility),
' Resolution of 22 September 1922, L.N.O.J., Spec. Supp., No. 21, 1922, 10. 9 Resolution of 12 December 1924, L.N.O.J., February 1924, 274. 10 Rosenne, The League of Nations Committee of Experts for the ProgresSee sive Codification of InternationalLaw (1972), Introduction; all the important documents concerning the Committee of Experts are contained in this twovolume set. "L.N. Doc. C.275.1925.V; reproduced in 20 Am. J. Int'l L. (Spec. Supp.) 14-15
(1926). 12Id.; reproduced in 20 Am. J. Int'l L. (Spec. Supp.) 17 (1926). 13 L.N. Doc. C.44.M.21.1926.V; reproduced in 20 Am. J. Int'l L. (Spec. Supp.) 17 (1926). 14 See 20 Am. J. Int'I L. (Spec. Supp.) 21-26 (1926). 15 Ibid., 62 147. 1 6 Ibid., 222 229. 17 Ibid., 148 175. "Ibid., 176-203. '9Ibid., 204-211.
Harvard Research on International Law of the seas) 20 merely identified the principal issues that would require to be addressed in any codifying convention. These numbered questionnaires were to be transmitted to governments for their "opinion," upon the receipt of which the Committee would recommend the topics that were "sufficiently ripe" for codification. 2' As to extradition22 and extra-territorial jurisdiction,2 3 the Committee's reports were not included on the provisional list of subjects for codification and were forwarded to governments "for their information. 24 The Committee's special report on the status of government ships employed in commerce 25 was remitted to the Council of the League of Nations; 26 and the question of prescription in international law was deferred until the next meeting of the Committee.27 At its third session, the Committee of Experts considered the opinions submitted by governments to the seven questionnaires, concluding that "generally speaking, [all] the above questions, within the limits indicated in the respective questionnaires, are now, in the words of the terms of reference, 'sufficiently ripe. ' '28 Additionally, the Committee identified four further areas of international law for which it prepared questionnaires to be forwarded to governments: judicial assistance in penal matters, legal position and functions of consuls, revision of the classification of diplomatic agents and competence of courts in regard to foreign States.29 In September 1927, the Assembly of the League of Nations resolved to submit nationality, territorial waters and State responsibility to the "first" codification conference, to invite the Council to make arrangements for The Hague to be the venue of that conference and to entrust the Council with the establishment of a Preparatory
20
Ibid., 230 241. Ibid., 19. 22 Ibid., 242-251. 23 Ibid., 252-269. 24 Ibid., 20. 25 Ibid., 260-278. 26 Ibid., 20. 27 id. 28 22 Am. J. Int'l L. (Spec. Supp.) I at 3 (1928). Annex III to this document
21
contains the analysis of the governmental opinions. 29 Ibid., 1. The questionnaires appear at 46 103, 104 110, 111 116 and 117 132 respectively.
The Harvard Research: Genesis to Exodus Committee, of five experts, "to prepare a report comprising sufficiently detailed bases of discussion on each question...13 The Preparatory Committee met first in February 1928 to adopt three lists of points on which information from governments was sought; that information was to cover States' existing internal law and interna3 tional practice and their views de lege ferenda. 1 Later, in May of 1929, the Committee drafted in final form three sets of Bases of Discussion, for nationality,3 2 territorial waters33 and State responsibility,3 4 these bases being described subsequently as "neither in the nature of a mere restatement of existing law nor purely in the nature 35 of proposals for new law." In one month, from 13 March to 12 April 1930, the representatives of forty-eight States debated, through three committees, 36 the Bases of Discussion with a view to adopting codifying conventions. 37 The Hague Conference for the Codification of International Law was, by any standards, a disappointment. There was no codifying convention on territorial waters or State responsibility. As far as nationality was concerned, all that emerged were four agreements on aspects of the
30
Resolution of 27 September 1927, L.N.O.J. Spec. Supp. No. 53, 9; 22 Am. J.
Int'l L. (Spec. Supp.) 231 (1928). 31 L.N. Doc. C.44.M.21.1928.V. 32 L.N. Doc. C.73.M.38.1929.V; reprinted in Rosenne, The League of Nations Conference for the Codification ofInternationalLaw (1930) (1975), Vol. 1, 1. 33 L.N. Doc. C.74.M.39.1929.V; reprinted in Rosenne, The League of Nations Conference for the Codification ofInternationalLaw (1930) (1975), Vol. 2, 219. 34 L.N. Doc. C.75.M.69.1929.V; reprinted in Rosenne, The League of Nations Conference for the Codification ofInternationalLaw (1930) (1975), Vol. 2,423. 35 HistoricalSurvey of Development of InternationalLaw and its Codificationby InternationalConferences 1947, supra n. 6, 79. 36 I. Nationality, L.N. Doc. C.351(a).M.145(a)1930. V; reprinted in Rosenne, supra note 34, Vol. 3, 881-1201; II. Territorial Waters, L.N. Doc. C.351(b).M.145(b).1930.V, reprinted in Rosenne, supra note 34, Vol. 4, 12031423; II Responsibility of States, L.N. Doc. 351 (c).M. 145(c). 1930.V, reprinted in Rosenne, supra n. 34, Vol. 4, 1425 1661. 37 See The Final Act of the Conference for the Codification of International Law, L.N. Doc. V.Legal. 1930.V.7. The Final Act was reprinted in 24 Am. J. Int'l L. 169 (1930) and Rosenne, supra n. 34, Vol. 3, 840.
Harvard Research on International Law law on nationality, 38 and not the single convention that had been envisaged. The participants at the Hague Conference clearly thought they were attending the first of a series of League-sponsored codification conferences, for, annexed to the Final Act, is a recommendation urging the continuation of that conference's work and suggesting procedural changes. 39 The Eleventh Assembly took up this call and invited States' view on possible subjects for codification.4 Conscious of the lack of strong support for a codification programme, the Twelfth Assembly transferred the initiative for codification from the League to its members, 4 1 effectively ending the process in the era of the League.42 Hindsight provided some telling reasons for the relative failure of the League's codification endeavors. Shabtai Rosenne, who has chronicled the entire process in two books,43 and the careful analysis by the U.N. Secretariat of early codification efforts as potential models for codification in the U.N. era44 both identified defects in the process and the attitude and perception of its participants. Principally, the Hague Conference attempted too much in too little time, aiming to adopt three codification conventions on important matters in one month.4' Also, at the time, the distinction between mere codification See Convention on Certain Questions relating to the Conflict of Nationality Laws, 179 L.N.TS. 89; Protocol relating to Military Obligations in Certain Cases of Double Nationality, 178 L.N.S. 227; Protocol relating to a Certain Case of Statelessness, 179 L.N.TS. 179; and Special Protocol relating to Statelessness, L.N. Doc. C.27.M.16.193 I.V. 39 The Final Act of the Conference for the Codification of International Law,
38
supra n. 37, 171, Appendix 10.

40
Resolution of 3 October 1930, L.N.O.J, Spec. Supp., No. 83, 9. 41 Resolution of 26 September 193 1, L.N.O.J. Spec. Supp., No. 92, 9. 42 See Rosenne, supra n. 34, xl; Hudson, The Prospect for Future Codification, 26 Am. J. Int'lL. 137 at 143 (1932).
43 The League of Nations Committee of Experts for the Progressive Codification
of International Law (1972) and The League of Nations Conference for the
Codification qf International Law (1930) (1975). 44
HistoricalSurvey of Development of InternationalLaw and its Codificationby InternationalConferences 1947, supra n. 6. 45 Ibid., 54. See also Rosenne, supra n. 34, Vol. 1, xlii; Miller, The Hague Codification Conference 24 Am. J. Int'l L. 674 at 693 (1930); Lauterpacht, Eli (ed.), InternationalLaw. Collected Papers of Hersch Lauterpacht (1970), Vol.
1, 106.
The Harvard Research: Genesis to Exodus of existing rules and progressive development of the law with additions and amendments to these rules was not clearly understood by States, with the result that the Hague participants had difficulty in understanding and accepting the process in which they were engaged.4 6 And all who examined the League's codification process have emphasized the critical importance of preparation and consultation prior to a codification conference.4 7 These things having been said, the legacy of the League's foray into codification is far from negative. In the words of Manley Hudson, who among other things found time to be the U.S. technical adviser to the Hague conference: "A beginning has been made, some steps have been taken, some lessons have been learned, some mistakes have been exposed, some threads have been left hanging which a future conference may pick up, some lines have been forged along which future effort may proceed. 4 8 Or, as put slightly differently, by Shabtai Rosenne: "the accomplishment of the Committee of Experts, the entire work of the 1930 Codification Conference (including the Preparatory Committee) has been caught in the broad sweep of the United Nations Codification effort..., 4 9 The Harvard Research Phases The Harvard Research in International Law was conducted in four phases. The aim of each of the thirteen projects within these four phases was the preparation of a draft convention,50 representing the collective view of a group of Americans with special interest in the development of international law (and, though not stated, with exper46
Ibid., 85. See also Rosenne, supra n. 10, Vol. 1, at xl; Hudson, 24 Am. Soc'y
Int'lL. Proc 230-231 (1930); Brierly, The Future of Codification, 12 B.Y.I. L. 1 at 5-6 (1931); Lauterpacht, supra n. 45, 454-456. 47 Ibid., 85-86. See also Rosenne, supra n. 10, Vol. 1, at xlii-xliii; Miller, supra n. 45, 693; Hudson, The First Conference for the Codification of International Law, 24 Am. J. Int'lL. 447 at 465 (1930); Brierly, supra n. 46, 11. 48 Supra n. 42, 465-466. 49 Supra n. 10, Vol. 1, xlv. 50 General Introduction, 23 Am. J. Int'l L. (Spec. Supp.) I at 3 (1929). See also the General Introductions to the other three phase: 26 Am. J. Int'l L. (Supp.) I at 5 (1932), 29 Am. J. Int'lL. (Supp.) Iat 8 (1935) and 33 Am. J. Int'lL .(Supp.) I at 10 (1939).
Harvard Research on International Law tise in the topic under investigation), in the hope that each draft 52 51 convention would be "of interest" to, or "merit the attention" of, those involved in codifying international law. In his 1928 note announcing the Harvard Research, Manley Hudson said only that the research "should be undertaken along the general lines followed by the Institut de Droit Internationaland the American Law Institute, with a director of research, with a reporter for each of the subjects to be considered ...and with advisers to , ' 3 That brief description of how the assist each of the reporters. Harvard Research was to be conducted for the nationality, State responsibility and territorial waters projects was essentially the procedure that was followed in all four phases of the Research. 4 The Institut, founded in 1873, had, by the 1920s, developed a method of restating and codifying international law through the identification of suitable topics, appointment of rapporteurs and advisers, investigation and study and eventual adoption of texts at regular sessions of the entire Institut.55 A broadly similar model was adopted to restate American law by the American Law Institute. 6 Firstphase (1927-29) On 27 September 1927, the Eighth Assembly of the League of Nations identified nationality, State responsibility and territorial waters
51
General Introduction, 23 Am. J.Int'lL. (Spec. Supp) 1 at 9 (1929) and 26 Am.
J. Int'l Law. (Supp.) I at 14 (1932). 52 General Introduction, 29 Am. J. Int'l L. (Supp.)l at 8 (1935) and 33 Am. J. Int'lL. (Supp.) I at 10 (1939).
53Supra
n. I at 152. See also General Introduction, 23 Am. J. Int'l L. I at 3
(1929) which reversed the order: "The method followed by the American Law Institute, which is very similar to that of the Institut de Droit International,was
adopted for the Research..." 54 See General Introductions 26 Am. J. Int'l Law. (Supp.) 1 at 5 (1932).
55For the history of the Institut, see Abrams, The Emergence of International
Law Societies, 19 Review of Politics 361 (1957); Hambro, The Centenary of the Institut de Droit International, 43 Nordisk Tidsskrift Int'l Ret. 9 (1973). See also, <www.idi-iil.org>
See ALI, The American Law Institute's Seventy-fifth Anniversary (1998), especially Chaps. I and 2. See also ALl, Capturing the Voice of the ALL A Handbook for ALI Reporters and those who Review their Work (2005); and
56
<www.ali.org>
The Harvard Research: Genesis to Exodus as the subjects of its first codification conference.5 7 In response, the Advisory Committee of the Harvard Research, comprising forty-four American scholars and jurists, approved the nomination of three reporters, Richard W. Flournoy, Jr., for nationality, Edwin M. Borchard for State responsibility and George Grafton Wilson for territorial waters. 58 These reporters, along with the Research's Director of Research, Manley 0. Hudson, appointed ten advisers for each of the topics. 59 The reporters and advisers met between early 1928 and late 1929; on twelve separate days in the case of nationality, thirteen days in the case of State responsibility and fourteen days in the case of territorial waters.60 The outcome of these deliberations was three draft conventions and accompanying "Comments:" on the Law of Nationality, 6 1 on the Law of Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners, 62 and on the Law of Territorial Waters. 63 Additionally, the Research published a collection of nationality laws in 1930.64 The three draft convention were specifically stated to have been "recommended" by the Advisory Committee and "authorized" by the Faculty at Harvard Law School. 6 They are equally specifically declared not to represent the individual view of the persons involved
L.N.O.J. Spec. Supp., No. 53, 9. General Introduction, 23 Am. J. Int'lL. (Spec. Supp.) I at 7 8 (1929). 59 id. 60 Ibid., 8. 61 Ibid., 11. The draft convention and commentary have been reprinted by W.S.
57
58
Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft
convention appears below as Appendix 1.

62
Ibid., 131. The draft convention and commentary have been reprinted by W.S.
Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 2. 63 Ibid., 241. The draft convention and commentary have been reprinted by W.S. Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 3.
64
Flournoy and Hudson, A Collection of the Nationality Laws of Various
Countries (1930). 65 General Introduction, 23 Am. J. Int'l L. (Spec. Supp.) 1 at 9 (1929).
Harvard Research on International Law in their preparation and authorization; and, being "wholly unofficial," they did not represent the views of the U.S. Government.6 6
Second phase (1929-32)

In February 1929, and before the League of Nations Codification Conference had met, the Advisory Committee decided to undertake the preparation of draft conventions in four additional areas identified by the League of Nations Committee of Experts on the Progressive Codification of International Law as ripe for codification: 67 Diplomatic Privileges and Immunities, with Jesse S. Reeves as reporter and nineteen advisers; Legal Position and Functions of Consuls, with Quincy Wright as reporter and fourteen advisers; Competence of Courts in regard to Foreign States, with Philip C. Jessup as reporter and twenty advisers; and Piracy, with Joseph W. Bingham as reporter and fifteen advisers.6 8 Meetings of the research teams took place between late 1930 and late 193 1,69 with fifteen meetings on diplomatic privileges and immunities, thirteen each on consuls and the competence of courts 70 and nine on piracy. Four drafts and commentaries emanated from these deliberations: on Diplomatic Privileges and Immunities, 7 1 on the Legal Position and Functions of Consuls,7 2 on the Competence of Courts in regard to Foreign States, 73 and on Piracy. 74 Also published by the Research at
66 68
70
id. 64, 143.

General Introduction, 26 Am. J. Int'lL. (Supp.) I at 10 12 (1932). id.
67 L.N.O.J. Supp. No.

69 id.
71Ibid.,
19. The draft convention and commentary have been reprinted by W.S.
convention appears below as Appendix 4. 72 Ibid., 189 (1932). The draft convention and commentary have been reprinted
by W.S. Hein in the HarvardResearch in InternationalLaw (2008). The text of
the draft convention appears below as Appendix 5. 73 Ibid., 451 (1932). The draft convention and commentary have been reprinted
the draft convention appears below as Appendix 5. 74 Ibid., 739 (1932). The draft convention and commentary have been reprinted
the draft convention appears below as Appendix 6.
The Harvard Research: Genesis to Exodus this time was a collection of piracy laws;75 and in 1933, a collection of diplomatic and consular laws was published in conjunction with the Carnegie Endowment for International Peace.76 The draft conventions and commentaries are stated not to represent the views of the individuals involved in their preparation, nor the views of the U.S. Government.77 These same disclaimers appear in respect of the draft conventions in the third and fourth phases of the Harvard Research.78 Significantly, in none of the phases after the first phase in 1932 is there any mention of the Advisory Committee "recommending" the draft conventions, or of the Harvard Faculty "authorizing" them. For the final two draft conventions in the Harvard Research, on neutrality and aggression, there is a further, almost superfluous, disclaimer, which reads: "The considerations of the Draft Convention ... revealed fundamental differences of opinion regarding the general organization of the draft, its underlying theories, and a number of the specific rules and principles set forth therein. The Research nevertheless presents it, without any implication that the Draft as published reflects even a consensus of the members of the Advisory Committee, hoping that its debates upon the problem may be continued among scholars throughout the world with a view to the 79 further clarification of the subject., Third phase (1932-35) In February 1932, the Advisory Committee decided to continue the Harvard Research for a third phase and identified three topics for consideration: extradition, jurisdiction with respect to crime and treaties. 80 The League of Nations Committee of Experts on the Pro71Morrison,
A Collection of Piracy Laws of Various Countries, 26 Am. J Int'l
L. (Supp.) 887 (1932). 76 Feller and Hudson, A Collection of the Diplomatic and Consular Laws and Regulations of Various Countries (1933). 77 General Introduction, 26 Am. J. Int'l L. (Supp.) 1 at 14 (1932). 78 General Introduction, 29 Am. J. Int'l L. (Supp.) 1 at 8 (1935), General Introduction, 33 Am. J. Int'lL. (Supp.) I at 11 (1939). 79 33 Am. J.Int'l L. (Supp.) 175 and 827. In addition, a footnote from that statement at the beginning of the text of the each draft convention refers to the disclaimers contained in the General Introduction. 'o General Introduction, 29 Am. J.Int'l L. (Supp.) 1 at 2-3 and 5-7 (1935).
Harvard Research on International Law gressive Codification of International Law had determined, in January 1926, that there were insuperable difficulties in securing any international agreement on extradition.8 1 Nonetheless, the Executive Committee of the Harvard Research, not the full Advisory Committee, considered that extradition should be explored by the Research, and appointed Charles K. Burdick as reporter. 82 Likewise, while the League's Committee of Experts had concluded, also in January 1926, that the codification of the law on jurisdiction with respect to crime would encounter grave political and other obstacles,83 the Executive Committee thought that the subject should be explored, and appointed Edwin D. Dickinson as reporter.8 4 The League's Committee of Experts had determined, in April 1927 and after careful study, that the law of treaties was "sufficiently ripe for codification, 85 though it subsequently suggested a separate procedure for that codification. 86 When the matter was referred to the Council and Assembly of the League, these bodies were content to have the Secretariat investigate.87 Subsequently, the American States had adopted, at Havana in February 1928, a convention on treaties,88 but not all the States represented at Havana had ratified this treaty. Against this background, the Executive Committee decided that the law of treaties should be explored as part of the Harvard Research, and appointed James W. Garner as reporter. 89 The extradition team, with two research assistants (V.G. Terentieff and Lucien Tharaud) and sixteen advisers met on thirteen occasions between January 1933 and December 1934;90 the criminal jurisdiction team, with an assistant reporter (William W. Bishop), two research assistants (Lawrence Preuss and Benjamin Akzin) and twenty-one
81L.N. Doc. C.51.M.28.1926.V,
reprinted in 20 Am. J.Int'l L. (Spec. Supp.) 243
(1926). 82 General Introduction, 29 Am. J. Int'lL. (Supp.) I at 5 6. 83L.N.Doc. C.50.M.27.1926.V, reprinted in 20 Am. J. Int'l L. (Spec. Supp.) 253 (1926). 14 Ibid., 6. 85 L.N. Doc. C.196.M.70.1927.V, 7. 16 L.N. Doc. C. 198.M.72.1927.V, reprinted in 22 Am. J. Int'l L. (Spec. Supp.)43 (1928). 87 L.N.O.J., 1927, 754. 88 Hudson, International Legislation, Vol. 4, 2378 (1931).
89 General Introduction, 29 Am. J. Int'l L. (Supp.) I at 7 (1935).
90
Ibid., 5-6.
The Harvard Research: Genesis to Exodus advisers, met on eight occasions between December 1932 and December 1933;91 and the treaties' team, with an assistant reporter (Valentine Jobst) and eighteen advisers, met on seventeen occasions between November 1932 and December 1933.92 The product of these deliberations was three draft conventions and commentaries: on Extradition,9 3 on Jurisdiction with respect to Crime, 4 and on the Law of Treaties. 95 Fourth phase (1935-39) A fourth phase of the Harvard Research was mandated by the Advisory Committee in February 1935, with three topics identified as appropriate for consideration: judicial assistance, neutrality and recognition of States.96 While the League of Nations Committee of Experts had undertaken some work on aspects of judicial assistance, it considered that the only achievable international agreement was in relation to universally condemned crimes.97 The Harvard Executive Committee thought that the subject "could be usefully explored" by the Research; James Grafton Rogers and A.H. Feller were appointed reporters. 98 In the immediate post-World War I years, little international interest had been shown in neutrality, though a Convention on Maritime Neutrality had been adopted by the American States in 192899 and a number of States had revised their neutrality laws. In these circumstances, the Executive Committee concluded that "the
91
92
Ibid., 6 7. Ibid., 7 8. 9329 Am. J.Int'l L. (Supp.) 15 (1935). The draft convention and commentary
have been reprinted by W.S. Hein in the HarvardResearch in InternationalLaw
(2008). The text of the draft convention appears below as Appendix 8.

94
Ibid., 435. The draft convention and commentary have been reprinted by W.S. The draft convention and commentary have been reprinted by W.S.
Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 9.
95Ibid., 653.

convention appears below as Appendix 10. 96 General Introduction, 33 Am. J. Int'lL. (Supp.) I at 2 and 6 (1939). 9' Ibid., 7.
98
Ibid., 6-7.
99
Hudson, International Legislation, Vol. 4, 2401 (1933).
Harvard Research on International Law time had arrived when a special investigation should be made of the whole topic;" and Philip C Jessup was appointed reporter.100 The fate of the Harvard Research's involvement with the issue of recognition is fascinating. The Executive Committee had concluded that "it could usefully be investigated;" and Edwin D. Dickinson and 0 Lawrence Preuss were appointed reporters. 1 1 The General Introduction to the fourth phase of the Research, written by Manley Hudson, then states: "A draft Convention on the Recognition of States is in the course of preparation, but circumstances have prevented its completion in time for publication in this volume."' 0 2 Subsequently, the Survey of International Law in Relation to the Work of Codification of the InternationalLaw Commission added that "valuable preparatory work was done; but ... it was not possible to 1register sufficient 0 3 progress for the production of a Draft Convention."' The recognition project never having reached fruition, almost as if to compensate, a reporter and advisers worked on, and produced, a draft convention on the Rights and Duties of States in Case of Aggression. In Hudson's words, "In connection with the subject of Neutrality, it was found necessary to pursue a study of a complimentary subject, Rights and Duties of States in Case ofAggression; and a draft convention was prepared on this subject to accompany the draft convention on Rights and Duties of Neutral States in Naval and 0 Aerial War..." 1 4 The spin-off aggression team had Philip C. Jessup as its reporter. The two reporters on judicial assistance and their fifteen advisers met on six occasions between February 1937 and November 1938;105 and the reporter on neutrality, along with his assistant (Oliver J. Lissitzen), twenty-one advisers and nine special advisers on air questions and one special adviser on maritime questions, met on thirteen occasions between January 1936 and December 1938.106 There is no indication of the advisers appointed to assist Dickinson and Preuss in their investigation of recognition, nor of the frequency with which
100
General Introduction, 33 Am. J. Int'IL. (Supp.) 1 at 8 (1939).
101 Ibid.,
6 and 9. '02 Ibid., 9. 103 U.N. Doc. ACN.4/I /Rev.1, 27. 104 General Introduction, 33 Am. J. Int'lL. I at 8 (1939). 10'Ibid., 7.
106 Ibid.,
8.
The Harvard Research: Genesis to Exodus they met. Jessup had seventeen advisers for the aggression project, ten 0 17 of whom were also involved in the neutrality project. The fourth phase of the Harvard Research produced three draft conventions and commentaries: on Judicial Assistance,' 1 8 on Rights and Duties of Neutral States in Naval and Aerial War10 9 and Rights and Duties of States in Case of Aggression. 110 Also published by the Research, in collaboration with the Carnegie Endowment for International Peace, was a collection of neutrality laws and treaties."'1 With financial support dwindling, with the prospects of any meaningful codification through the League of Nations ended after the relative failure of the 1930 Codification Conference, with George Wickersham's important influence gone with his death in 1936 and with Manley Hudson's formidable and pivotal role having been necessarily reduced by the demands of his appointment to the bench of the Permanent Court of International Justice in the same year, it was inevitable that the Harvard Research would falter.1 12 While some work was undertaken in the areas of denial of justice and the rights and duties of States in civil strife,1 13 no further draft conventions and accompanying commentaries were produced. As a postscript, the Harvard Research was resurrected in all but name in 1956 when the International Law Commission, then considering State responsibility, invited Harvard Law School to revise the draft Convention on Responsibility of States for Damage done on their Territory to the Person or Property of Foreigners of 1929. Dr. Yuen-li Liang, the Commission's secretary, remarked that "just as the
107 Ibid.,
9.
'0' Ibid., 11. The draft convention and commentary have been reprinted by W.S. Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 11. 109 Ibid., 167. The draft convention and commentary have been reprinted by W.S. Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 12. 110 Ibid., 827. The draft convention and commentary have been reprinted by W.S. Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft convention appears below as Appendix 13. 111 and Jessup, Collection of Neutrality Laws, Regulations and Treaties of Deak
Various Countries (1939). 112 Kenny, supra n. 2, 328-329.
11' Ibid., 328.
Harvard Research on International Law original draft had been of great assistance to the Codification Conference at The Hague in 1930 and to the learned world in general, a revised version might also be of general service to both to the Commission and to the public."'1 14 Harvard Law School appointed Louis B. Sohn and R. R. Baxter as rapporteurs and a distinguished advisory committee, including two scholars who had been involved in the 1929 project. 15 The resultant Draft Convention on the International Responsibility of States for Injuries to Aliens 16 was the subject of a presentation to the Commission by Sohn in June 1961117 The document, intended as a revision of the 1929 Draft Convention, was, in the words of Special Rapporteur Roberto Ago, "an entirely new draft."1 18 The Personnel of the Harvard Research What is particularly striking about the Harvard Research is the caliber of the participants. It is hard to imagine of any American international law "name" of the 1920s and '30s who was not involved. In all, in the twelve years of the existence of the Harvard Research, a massive 102 individuals participated as reporters, advisors or research assistants-and that total does not include those others who served on the Research's Advisory and Executive Committees. Within the thirteen projects in the Harvard Research, some individuals participated in more than one project. Table 1 indicates the number of individuals who participated in between one and eight projects; no one participated in more than eight projects.
114
15 Quincy Wright and, until his death in 1958, Clyde Eagleton; Eagleton is the
1956 ILL.C. Yb. 228.
author of one of the seminal books on State responsibility, Responsibility of

States in InternationalLaw (1928). 116 U.N. Doc. A/CN.4/217 and Add.1. See Sohn and Baxter, Responsibility of
States for Injuries to the Economic Interests of Aliens, 55 Am. J. Int'l L. 545 (1961); the text of the Draft Convention appears at 548. The 1961 draft Convention is discussed in Chapter 3, infra.
117
1961 II.L.C. Yb. 196. See also the Report of the International Law Commis-
sion on the Work of its 13th Session, 1961, 1961 III.L.C. Yb. 88 at 129.
"'
1961 IlL.C. Yb. 196.
The Harvard Research: Genesis to Exodus

11 Table 1 Participations 9
Projects Individuals
8 3
7 1
6 6
5 5
4 3
3 5
2 27
1 52
Total 13 102
Thus, while 52 individuals were involved in only one Harvard project, a total of three individuals participated in eight projects: Phillip C. Jessup, Jesse S. Reeves and George G. Wilson. Lester H. Woolsey was involved in seven projects. Six individuals were involved in six projects: Abraham H. Feller, Green H. Hackworth, Charles Cheney Hyde, Arthur K. Kuhn, George W. Wickersham and Quincy W. Wright. And five individuals were involved in five projects: Edwin Borchard, Charles C. Burdick, Edwin D. Dickinson, Clyde Eagleton and James W. Garner. Perhaps unsurprisingly, among the elite group of scholastic recidivists are to be found the vast majority of the reporters. Only Jessup acted as reporter for more than one project; he was reporter in respect of the competence of courts in regard to foreign States, neutrality and aggression. Otherwise, Reeves (diplomatic privileges and immunities), Wilson (territorial waters), Feller (co-reporter on judicial assistance), Wright (consuls), Borchard (State responsibility), Burdick (extradition), Dickinson (jurisdiction in regard to crime) and Garner (treaties) were appointed as reporters in respect of one Harvard project. Of the remaining projects, the reporter on nationality, Richard W. Flournoy Jr., served as an advisor on two other projects (consuls and treaties), as did the reporter on piracy, Joseph W. Bingham (competence of courts and jurisdiction in regard to crime), and the coreporter on judicial assistance, James G. Rogers, served as an advisor on the neutrality project. Table 2 shows the career provenance of the participants in the Harvard Research. The legal academy provides most of the personnel involved in the Research, followed in numbers by practitioners and then by government employees.
119 Source: General Introductions, 23 Am. J. Int'l L. (Spec. Supp.) I at 7 8 (1929), 26Am. J. Int'IL. (Supp.) I at 10 12 (1932), 29Am. J. Int'IL. (Supp.) I at5 7(1935),33Am. J. Int'IL. (Supp.) I at6 9 (1939).
Harvard Research on International Law

12 Table 2 Provenance of Participants 0
Academy 62
Government Service 12
Law Practice 28
Total 102
The law professors who participated in the Harvard Research came from a range of the leading law schools. Eleven came from law schools within the University of California system, five from Columbia, Harvard (or Radcliffe), Illinois and Stanford, four from Michigan and three from Cornell and Princeton. In all, twenty-six academic institutions were represented. While the Harvard and Radcliffe representation appears modest, they provided experts who participated in a large number of projects (George G. Wilson in eight, Abraham H. Feller in six, Manley 0. Hudson in three and Benjamin Akzin in two); and, in addition, provided two reporters (Wilson as reporter for territorial waters and Feller as co-reporter for judicial assistance). Among those in government service, the State Department was represented on ten Harvard projects, most particularly by the redoubtable Green H. Hackworth, 121 who participated in six projects. More than a quarter of the participants were in private practice, including George W. Wickersham, who participated in six projects. It was part of the genius of the Harvard Research and of its director, Manley 0. Hudson, to utilize practitioners of international law and private practitioners in their work; the Harvard Research was never an exclusively "academic" exercise. Inevitably, three individuals stand out in this Harvard galaxy of talent, Manley 0. Hudson, George W. Wickersham and Phillip C. Jessup. Manley Hudson (1886-1960) not only initiated the Harvard Research 122 and directed its work for over twelve years, he was Bemis Professor at Harvard from 1923 to 1954, a judge of the Permanent Court of International Justice from 1936 to 1946 and a member of the International Law Commission from 1949 to 1953 and its first chairman. He was one of the foremost international law scholars of the
120
Source: id.
Whiteman, Green Haywood Hackworth, 68 Am. J. Int'lL. 91 (1974).
121See
122 See n. 1, supra.
The Harvard Research: Genesis to Exodus 20th Century 23 One of his principal missions, apparent in the Harvard Research and in much of his scholarship, was to make international materials available for scholarly and practical analysisto make the raw data of international law widely available. Among his voluminous publications are International Legislation (1931-1950), World Court Reports (1934-1943), The Permanent Court of International Justice (1943) and two Collections produced in association with the Harvard Research, of the Nationality Laws of Various Countries (with Flournoy, 1929) and of Diplomatic and Consular Laws and Regulations (with Feller, 1933). It is little wonder that the foremost association of international lawyers, the American Society of International Law, names its premier award for scholarship and achievement in international law after Manley 0. Hudson. While Hudson may have been the mainstay of the Harvard Research, it could not have produced thirteen draft conventions and commentaries in twelve years, in the face of some hostility at Harvard law school, 124 without George W. Wickersham (1858-1936). Identifying Wickersham as a practitioner hardly suffices: 125 he was US Attorney General from 1909 to 1913; he was the founding president, from 1923 until his death, of the American Law Institute, on whose restatement projects the Harvard Research was modeled; he was a member of the League of Nations Committee of Experts for the Codification of International Law, and a member of its subcommittee on the territorial sea, from 1925 to 1928; he was the chair of the Harvard Research Advisory Committee from 1927 to 1936 and an advisor to six Harvard projects. Phillip Jessup merits special mention for the sheer volume of his contribution to the Harvard Research and for his achievements in international law and diplomacy. He was involved in eight separate projects, five as an advisor and three as a reporter (extradition, neutrality and aggression). Jessup (1897-1986) combined a career in the academy, as professor on international law at Columbia (1926123 See
the appreciations of Hudson in 74 Harv. L. R. (1960) by Dean Griswold
(at 209), Milton Katz (at 214) and Julius Stone (at 215), by Philip Jessup in 54
Am. J. Int'l L. 603 (1960) and by Ruth E. Bacon in 54 Am. Soc'y Int'l L. Proc. 223 (1960). 124 Kenny, n. 2 supra, 321-322. 125 See the appreciation by George Burlingham in 70 U.S. L. Rev. 59 (1936).
Harvard Research on International Law with public service, being a US representative to both the Security Council and General Assembly, and a seat on the International Court of Justice bench (1961 -1970).127 Two other individuals deserve special mention. Eleanor Wyllys Allen (1885-1979)128 was the only woman involved in the Harvard Research, as advisor on the project on the competence of courts in regard to foreign States. After an education involving four institutions, she completed a Ph.D on "Treatment of Enemy Merchant Vessels in Port at the Outbreak of War," and worked in the Harvard law library. In 1933, while working for the Bureau of International Research at Harvard, she published The Position of Foreign States before National Courts, undoubtedly her entr6e to the Harvard project. Subsequently, she was curator of the foundational Olivart Collection of International Law and, after 1945, a State Department official. Abraham Howard Feller (1905-1952), allocated here to the academy for statistical purposes, was in fact much more than that in a distinguished and ultimately tragic career. Appointed an instructor in international law at Harvard in 1931, he participated in five Harvard Research projects as advisor and one as co-reporter (judicial assistance). After World War ii, Feller joined the UN secretariat, and became legal advisor to the Secretary-General. He committed suicide in 1951, in large part because of the stress of defending American 129 officials in the UN under investigation for subversion.
1951),126
The Impact of the Harvard Research In attempting to assess the impact of the Harvard Research on subsequent legal thought and legal developments, four issues were
126
Among his many publications are The Law of Territorial Waters and
Maritime Jurisdiction (1927), A Modern Law of Nations (1948), The Price of International Justice (1971) and The Birth of Nations (1974). 127 See Schachter, Philip Jessup's Life and Ideas, 80 Am. J.Int'l L. 878 (1986); see also Jessup: Memorials and Reminiscences in ibid by Manfred Lachs (at 896), Stephen Schwebel (at 901), James Hyde (at 903) and Philip Jessup Jr. (at 908). 128 The details of Allen's life have been gleaned from various sources by Wendy Hitchcock, reference librarian at Lewis & Clark School of Law. 129 See Death of an Idealist, Time, November 24, 1952. See also Louis Sohn's review of Feller's United Nations and World Community (1952), 66 Harv. L.R. 1336 (1952 1953).
The Harvard Research: Genesis to Exodus explored: the extent to which the Harvard Research was cited by scholars in law reviews; the extent to which the authors of the leading texts and treaties on general international law relied on the Harvard Research; the use made and views expressed about the Harvard Research by the International Law Commission; and the reliance placed on the Harvard Research by the World Court in its judgments and advisory opinions. This legacy section concludes with a synopsis of the views of the experts who wrote the ensuing chapters. Law reviews Any assessment of the impact of the Harvard Research on subsequent international legal thought and development has to begin with the bald question of whether the thirteen Harvard projects have made their way into scholarly writings. In this first impact analysis, an examination was made of the "raw" (unadorned and unevaluated) citations to the Harvard Research in subsequent periodic literature. From Table 3, the most cited draft convention in law review articles is the Draft Convention on Jurisdiction with Respect to Crime, cited 261 times and as recently as 2006.130 The Draft Convention on Treaties appeared almost as often, and as recently as 2006.3 The frequently cited Piracy Draft Convention was cited at least twice in 2006.132 Appearing least frequently were the Draft Conventions on Judicial Assistance, Aggression, Consuls and Neutrality.
130
Messigian, Love's Labour's Lost: Michael Lewis Clark's Constitutional
Challenge, 43 Am. Crim. L. Rev. 1241, 1252 (2006); Adler, Fighting Terrorism in the New Age: A Call For Extraterritorial Jurisdiction over Terrorists, 18 U.S.F. Mar. L.J. 171, 195 (2006); Podgor, A New Dimension to the Prosecution
of White Collar Crime: Enforcing Extraterritorial Social Harms, 37 McGeorge L. Rev. 83, 97 (2006). 131 Shelton, Normative Hierarchy in International Law, 100 Am. J. Int'l L. 291, 298 (2006).
132
Burgess, Hostis Humani Generi: Piracy, Terrorism and a New International
Law, 13 U. Miama Int'l & Comp. L. Rev. 293, 322 23 (2006); Bagaric & Morss, In Search of Coherent Jurisprudence for International Criminal Law: Correlating Universal Human Responsibilities with Universal Human Rights, 29 Suffolk Transnat'lL.Rev. 157, 158 (2006).
Harvard Research on International Law Table 3 Number of References in Law Reviews Rank 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Draft Convention Jurisdiction with respect to Crime Treaties Extradition Piracy State Responsibility for Injuries Competence of Courts Nationality Diplomatic Privileges & Immunities Territorial Waters Judicial Assistance Aggression Consuls Neutrality
133
References 263 226 98 75 69 61 57 50 40 39 33 29 25
Each phase of the Harvard Research was reviewed when it was first published, 134 and many continue to be referenced as authority on their respective topics today. A review of law review articles from 1929 to the present reveals that the Research and its draft Conventions are cited at various intervals and frequencies, in a variety of U.S.
133
Source: databases of HeinOnline, Lexis/Nexis and Westlaw, using the search
engine of each. Last accessed February 2007. 134 See, e.g., Book Reviews, 30 Colum. L. Rev. 142 (1930)(reviewing the first phase of the Harvard Research, which included draft Conventions on (1) Nationality, (2) Territorial Seas, and (3) Responsibility of States for Injuries to Foreigners); Reviews of CurrentPeriodicals, 14 B.YLL. 225 (1933) (reviewing the second phase of the Harvard Research, which included draft Conventions on (1) Diplomatic Privileges and Immunities, (2) Legal Position and Function of Consuls, (3) Competence of Courts in regard to Foreign States, and (4) Piracy); Fraser, The Research in InternationalLaw-Third Phase, 21 A.B.A. J. 728 (1935) (reviewing the third phase of the Harvard Research, which included draft Conventions on (1) Extradition, (2) Jurisdiction with respect to Crime, and (3) Treaties); and Reviews, 50 Yale L.J. 1136 (1940) (reviewing the final phase of the Harvard Research, which included draft Conventions on (1) Judicial Assistance, (2) Rights and Duties of Neutral States in Naval and Aerial War, (3) Rights and Duties of States in Cases of Aggression).
The Harvard Research: Genesis to Exodus and international journals.1 35 The range of journals that contain articles citing the Harvard Research is broad. In the United States, well over fifty law school journals, 136 as well as publications of the American Society of International Law, and the U.S. Department of State Bulletin, have cited to the Harvard Research on International Law. Texts and treatises There are innumerable texts on international law and its various subdivisions, including areas of international law that were the subject of the Harvard Research. Rather than attempting to survey all international law texts and treatises, or the specialist works in the areas covered by the Harvard Research,1 37 it was decided instead to focus on a few of what might be called the "modern classics" on general international law. The selection is necessarily subjective, and is intended to demonstrate that parts of the Harvard Research have been regarded by a range of respected scholars as important. The selected modern classics are the Max Planck Encyclopedia of Public Interna139 tional Law, 138 Brownlie's Principles of Public InternationalLaw,14 1 1 40 O'Connell's InternationalLaw, Oppenheim's InternationalLaw and the 2 Restatement (Third) of Foreign Relations Law of the United 14 States.
Among the prestigious international journals containing articles referencing
135
the Harvard Research are the American Journalof International Law, Australian
Yearbook of International Law, British Yearbook of International Law and

Canadian Yearbook of International Law. 136 These journals include general law journals and reviews, as well as journals
specializing in topics ranging from maritime law to environmental and human rights law. 137 Any review of the use of the Harvard Research in specialist works is left to
the experts who wrote the ensuing chapters. 138 Encyclopedia qf Public International Law (Bernhardt, ed., 1992-2000). 139 Brownlie, Principlesof Public International Law (6th ed. 2003). 140 O'Connell, International Law (1965). 141 Oppenheim, InternationalLaw, Vol. 1 (Peace; Jennings & Watts, eds., 9th ed. 1992). 142 American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987).
Harvard Research on International Law The four-volume Encyclopedia of Public International Law, produced under the auspices of the prestigious Max Planck Institute for Comparative Public Law and International Law, contains articles on a broad range of international law topics. While, in general, the articles rely on treaties and other "hard" law sources of international law, some articles contain a section on the historical development of the law and codification efforts, in which the Harvard Research is referenced. The Harvard draft Convention on Nationality's examples of international law limitations on a State's power to confer nationality are mentioned, although the author also acknowledges that "[t]hese examples are cited affirmatively by most writers but in practice no such cases have occurred. 143 The draft Convention on Diplomatic Privileges and Immunities is described as having "great influence on the work of the International Law Commission (ILC) and on the United Nations Conference, which adopted the Vienna Convention on Diplomatic Relations in 1961 .,144 The draft Convention on the Position and Function of Consuls is referred to as a "noteworthy effort" which, among other private efforts at codification, "undoubtedly had considerable influence on both the theory and 145 practice of consular law. The draft Convention on Piracy "became the basis for the provisions proposed by the International Law Commission of the United Nations for inclusion in a general convention on the law of the high seas."' 146 The article also cites to the draft for the proposition that there may be no public international law of piracy that is separate from specific treaties between States, and that "all the arguments about it relate to conflicting municipal law usages and questions of jurisdiction." 147 The draft Conventions on Jurisdiction with regard to Crime,
143Randelzhofer,
Nationality, in 3 Encyclopedia of Public InternationalLaw,
504.
144
Denza, Diplomatic Agents and Missions, Privileges and Immunities, in 1
Encyclopedia of Public International Law, 1041. 145Economidbs, Consular Treaties, in 1 Encyclopedia of Public International Law, 768. 146 Rubin, 3 Encyclopedia ofPublic International Law, 103 8. 147 Ibid, 1039.
The Harvard Research: Genesis to Exodus and Rights and Duties of Neutrals are also mentioned in articles on 148 these topics. The draft Convention on Treaties receives the most attention. It 150 is 149 conflicts between treaties, referred to in the articles on treaties, and effects of territorial changes.15 ' In discussing the evolution of maxims on conflicts between treaties, the draft Convention on Treaties appears in discussions of lex posterior and lex prior. In reference to the latter, the draft Convention's stance concerning treaties with divergent membership is validated as consistent with the way judicial precedent has approached the issue by refraining from putting the matter in terms of essential validity, but still conferring priority on the earlier treaty.152 In Ian Brownlie's internationally respected Principles of Public InternationalLaw, the draft Conventions on Responsibility of States, Diplomats, Consuls, Extradition, Jurisdiction with respect to Crime, and Treaties are all cited sparingly. The Harvard Research draft on Territorial Waters is cited generally on the subtopic of the passage of warships, 153 but does not appear in the general citation for the major topic of territorial waters. The draft Convention on Diplomatic Privileges and Immunities is cited in a discussion of art. 7 of the Vienna Convention,1 54 stating that several delegates to the Convention would have had the article interpreted in accordance with the prevailing custom, which is discussed in the Harvard draft Convention. The Harvard Research on the Status and Functions of Consuls appears in the general citation for the topic, 155 as does the Harvard 156 work on Treaties.
148 Oxman,
3 Encyclopedia of Public InternationalLaw, 56; Dinstein, Neutrality
in Sea Warfare, in 3 Encyclopedia of PublicInternationalLaw, 566.

14'
150
151 152
153
Bernhardt, Treaties, in 4 Encyclopedia of PublicInternationalLaw, 926.
Karl, Treaties, Conflicts Between, in 4 Encyclopedia of Public International Klein, Treaties, Effect of Territorial Changes, in 4 Encyclopedia of Public
Law, 935.
International Law, 941.
Ibid., 937.
Brownlie, supra n. 139, 188.
Ibid., 346. 155Ibid., 355.

154
156
Ibid., 579 (appearing in the bibliographical footnote to the introduction of the
chapter: The Law of Treaties).
Harvard Research on International Law The Harvard Research is cited as a reliable source throughout Daniel P. O'Connell's InternationalLaw. While a few draft Conventions do not appear, 157 others are cited as authority, with several discussed in some detail. The draft Convention on Jurisdiction with Respect to Crime appears in sections on crimes committed by nationals and crimes committed by aliens; and it is discussed in sections on the passive personality principle, 158 the protective principle, 159 and illegal seizure of persons.1 60 The Harvard draft on Extradition is cited throughout the sections on the topic, 161 and is discussed extensively in the text. 162 The draft Convention on Piracy is also cited and discussed in sections on the definition of piracy 163 and the basis of piracy jurisdiction. 164 O'Connell quotes the Harvard Research's definition of a treaty in the introductory material, 1 65 and then continues to cite to and discuss the Research on Treaties throughout the chapters on the topic. Although the Harvard Research is generally cited favorably, there is at least one instance where O'Connell indicates that ' particular 66 comments by the Research "must be accepted with caution." Few would question the inclusion of Oppenheim's International Law among any list of modern classics in international law. It cites to the Harvard Research as authority in several areas, including State responsibility,1 67 territorial waters,1 68 diplomatic privileges and immu-
the draft Conventions on Nationality, Judicial Assistance and Rights and Duties of States in cases of Aggression.
O'Connell, supra n. 140, 901. Ibid., 902, 903. 160 Ibid., 905. 161Ibid., 792. 162 The Harvard draft appears in discussion of the following extradition-related
158 159
157 Namely,
topics: The Acts for which Extradition is Available, ibid., 794, 796; Extradition of Nationals, ibid., 798, 790; Political Offenders, ibid., 790, 802; Procedures for
Extradition, ibid., 803, 804; Extradition within the British Commonwealth, ibid.,
806, 807. 163Ibid., 716. 164 Ibid., 714. 165 Ibid., 211. 166 Ibid., 267 (discussing the Harvard Research's comments on the Free Zones case). 167 Oppenheim, supra n. 141, 499. 168Ibid., 599.
The Harvard Research: Genesis to Exodus nities, 169 consular privileges and immunities, piracy, 171 extradition 172 and treaties. 173 Thus, for example, the Harvard draft Convention on the Position and Functions of Consuls is referenced in relation to such matters as the appointment 174 and functions 175 of consuls, consular privileges 176 and termination of office. 1 7 7 The draft Convention on Extradition is cited on topics including the role of extradition treaties 17 and the extradition of nationals.1 79 The Harvard draft Convention on Treaties is cited in the general bibliography for the chapter on treaties,18 and, in particular, for topics such as the binding 182 ratification, 183 accession, 184 force of treaties, 18 1 objects of treaties, 8 interpretation,1 85 invalidity 186 and the emergence of ius cogens 1 7 of treaties. The American Law Institute's Restatement (Third) of Foreign Relations Law of the United States was prepared in a process of expert investigation, analysis and synthesis similar to that employed by the Harvard Research. Only four of the Harvard Research projects appear in the Restatement 3d: territorial waters, extradition, jurisdiction with respect to crime and treaties. The previous Restatement (Second) also included citations to the Harvard draft Convention on
169 Ibid., 1090; also cited at 1062 (appointment of diplomatic envoys) and 1072 (inviolability).
170
Ibid. 1132.
171 Ibid., 746. 172 Ibid., 948.
Ibid., Ibid., Ibid., Ibid., 77 1 Ibid.,

173 174 171 176
1197. 1137. 1139. 1142. 1151. 78 1 Ibid., 951. 179 Ibid., 955. 80 Ibid., 1197.
181 Ibid., 1206.
182
Ibid., 1212 (cited for the subtopic of effects of treaties inconsistent with other
treaty obligations).
183 184 185 186
117
Ibid., 1228. Ibid., 1236. Ibid., 1266. Ibid., 1284.

Ibid., 1310.
Harvard Research on International Law Responsibility of States, but, as the Introductory Note to the Restatement 3d states, in order to incorporate concepts of international law of human rights that have developed since Restatement 2d was issued, the editors of Restatement 3d rearranged and condensed the material on State responsibility to aliens treated at length in Restatement 2d, "but without departing from them in substance in any major 1 respect.", 88 While the Harvard Research draft on Extradition does not receive extensive citation, it does, however, appear listed in the bibliography to the Introductory Note on extradition. 189 The Harvard draft on Jurisdiction with respect to Crime is referred to on the subjects of the rights and duties of flag States1 90 and measures in aid of enforcement of criminal law. 19 1 In the former, the Harvard Research is cited as agreeing with US precedent for the proposition that the law of the flag State is applied to the ship and acts committed upon the ship on the high seas; 192 in the latter, the draft Convention's proposition that no State shall prosecute any person brought within its territory for violations of international law without first obtaining the consent of the State or States whose rights have been violated is contrasted with prevailing practice, where States ordinarily "refrain from trying persons illegally brought from another state only if that state demands the person's return."19 3 The Restatement's treatment of treaties also changed between the second and third editions, mainly due to the entry into force of the Vienna Convention on the Law of Treaties. 94 Restatement 3d was altered to include the important developments with respect to the law of treaties, and, as a consequence, omitted some citations to the Harvard Research which had been included in the previous Restatement.1 95 Some references remain, however, in the Introductory Note to the section on international agreements,1 96 which refers to the
Restatement 3d, supra n. 142, Pt VII, Introductory Note, Reporter's Note 2. Ibid., Pt IV.7.B, Introductory Note, RN1. 190 Ibid., 502. 191 Ibid., 432. 92 Ibid., 502 RN3.
118
189
19 Ibid., 432 RN3.

194
1155 U.N.T.S. 33.
195 Restatement 3d, supra n. 142, Pt I1, Introductory Note, RN2. 196 Ibid., Pt. III, Introductory Note, RN1.
The Harvard Research: Genesis to Exodus Harvard draft as "[a]n important predecessor of the Vienna Convention, 197 as well as in the subsection dealing with fundamental change of circumstances in relation to the termination of international agreements.198 The InternationalLaw Commission At the initial meeting of the International Law Commission on 12 April 1949, Ivan Kerno, Assistant Secretary-General for Legal Affairs, opened the meeting by stating that the ILC Statute "offered compromise between the codification of international law through official conventions, as had been tried under the auspices of the League of Nations, and codification through the unofficial scientific restatements of positive law as very well exemplified in the words of the Harvard Research." 199 In this section, it is intended to highlight references made to the Harvard Research by the ILC in the course of its work; a more detailed analysis of the substantive contribution of the Research to the ILC's work is contained in the ensuing chapters. It is clear that the ILC, particularly in its early years, had recourse to the Harvard Research and that the Harvard Research informed both the theoretical debate within the Commission and contributed to its drafting. One of the core documents before the first meeting of the ILC was
the Survey of InternationalLaw in Relation to the Work of Codifica2 tion of the InternationalLaw Commission, 00 purporting to be written 0 by the Secretariat, 2 1 but later acknowledged to be the work of Hersch Lauterpacht, 202 a distinguished British international lawyer and a member of the Commission from 1952 to 1954. In suggesting areas suitable for treatment by the ILC, the Survey described the Harvard Research project on State responsibility as "a notable contribution to 0 further study of the subject;, 2 3 on diplomatic intercourse and
197 Id. 1 8 9
Ibid., 336 RN 5. 199 1949 IL. C. Yb. 1 at 9. 200 U.N. Doc. A/CN.4/1 /Rev.1. 201 Ibid., Title page. 202 1960 I I.L.C. Yb. 52; the Survey also appears in Lauterpacht, Eli (ed.), International Law. Collected Papersof Hersch Lauterpacht(1970), Vol. 1, 445. 203 U.N. Doc.A/CN.4/1/Rev.1., 56.
Harvard Research on International Law immunities as containing "scholarly comment and abundant material;,, 20 4 on the position and functions of consuls as having produced a "detailed" draft Convention; 20 5 on the competence of courts 26 0 in regard to foreign States as containing "a scholarly commentary, and a "comprehensive attempt at codification [and] a detailed discussion against the background of an instructive documentation;' ' 2 0 7 on extradition as "doubtless provid[ing] a most convenient and useful starting point for all future [codification] efforts... ;,,20 on jurisdiction with respect to crime as providing a "Draft Convention of great value;, 20 9 and on treaties as "perhaps the most ambitious and detailed effort in the work of the Harvard Research., 210 In an otherwise comprehensive analysis of codification efforts already undertaken in the areas being suggested to the ILC, the Survey is surprisingly silent on the work done by the Harvard Research on nationality, territorial waters and piracy, while nonetheless suggesting each for possible codification.2 1' In fact, eight of the Harvard Research draft conventions coincided with projects undertaken by the ILC: 212 Harvard's Law of Nationality with the ILC's "Nationality, including Statelessness" (undertaken between 1951 and 1954); Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners with "State Responsibility" (1954-2001); Law of Territorial Waters with "Regime of Territorial Sea" (1950-56); Diplomatic Privileges and Immunities with "Diplomatic Intercourse and Immunities" (19531958); Legal Position and Functions of Consuls with "Consular Intercourse and Immunities" (1955-1961); Competence of Courts in regard to Foreign States with "Jurisdictional Immunities of States and
Ibid., 53. Ibid., 55. 206 Ibid., 30. 207 Ibid., 31. 208 Ibid., 49. 209 Ibid., 37. 210 Ibid., 51. 211 Ibid., 40-43, 43-44 and 40-43 respectively. 212 See U.N., The Work of the InternationalLaw Commission (6th ed.), 30 37;
204 205
Analytical Guide to the Work of the International Law Commission, http:// untreaty.un.org/ilc/guide/gfra.htm; and Periods During which Topics were on the Agenda of the International Law Commission, http://untreaty.un.org/ilc/
guide/annexl.htm.
The Harvard Research: Genesis to Exodus their Property" (1978-1999); Piracy as part of "Rdgime of the High Seas"(1950-1956); and Law of Treaties with "Law of Treaties" (1950-1966). In its consideration of nationality, including statelessness, in the early 1950s, the ILC referred frequently to the Harvard Draft Convention on Nationality. 213 The Special Rapporteur, Robert Cordova, acknowledged that his "Report on the Elimination or Reduction of Statelessness, 2 14 relied substantially on the Harvard Research's work,2 15 and he clearly felt compelled to explain his departure from the Harvard formula on the nationality of foundlings.2 16 The clear impression is that the Harvard Research was one of a number of sources considered in the discussions leading to the conclusion of the Convention on the Reduction of Statelessness of 1961 ;217 the frequency of its citation and the explanation for the deviation from it suggest that it was accepted as authoritative. The ILC project on State Responsibility was extensive and extended, dealing with the entire subject of the responsibility of States and stretching from 1956 until 2001. In all, there were five Special Rapporteurs: F.V. Garcia Amador who composed six reports,2 18 1 Roberto Ago with eight reports, 2 9 Willem Riphagen with seven 22 reports, Gaetano Arangio-Ruiz with eight reports, 221 and James
213 214 215
1952 II I.L. C. Yb. 7,8,9, 10; 1954 IILL.C. Yb. 60, 61, 77, 94, 100, 101, 102,
U.N. Doc. A/CN.4/64. 1953 ILL.C. Yb. 168, 172, 175 176, 179, 183, 187, 188. 216 Ibid., 175 176. 217 989 U.N.T.S. 175. 218 1956 IIL.C. Yb. 173; 1957 II.LLC. Yb. 104; 1958 II.LLC. Yb. 47; 1959 11 ILC. Yb. 1; 1960 JI.LC. Yb. 41; 1961I IlLC. Yb. 1. 219 1969 IILL.C. Yb. 125; 1970 IIiL.C. Yb. 177; 1971 IILLC. Yb. 199; 1972 11 I.LC. Yb. 71; 1976 II LL.C. Yb. 3; 1977 II IL.C. Yb. 3; 1978 II lL.C. Yb. 31; 1979 IIlLC. Yb. 3 and 1980 IIlLC. Yb. 13. 220 1980 11I.L.C. Yb. 167; 1981 IILL.C. Yb. 79; 1982 11I.L.C. Yb. 22; 1983 I1 LL.C. Yb. 3; 1984 II LL.C. Yb. 1; 1985 IILL.C. Yb. 3; 1986 IILL.C. Yb. 1. 221 1988 II I.L.C. Yb. 6; 1989 IILL.C. Yb. 1; 1991 11I.L.C. Yb. 1; 1992 II I.L.C. Yb. 1; U.N. Doc. A/CN.4/453 and Add. 1 3 (1993); U.N. Doc. A/CN.4/461 and Add.1 3 (1994); U.N. Doc. A/CN.4/469 (1995); U.N. Doc. A/CN.4/476 (1996).
106.
Harvard Research on International Law Crawford with four reports, 222 culminating in the final Draft Articles on Responsibility of States for Internationally Wrongful Acts. 223 The Harvard Research project was a more modest endeavour, restricted to the responsibility of States in respect of damage done in their territory to the person or property of foreigners. Almost as a consequence, while the special rapporteurs, particularly the early rapporteurs, were considering basic matters of liability and reparation, or when later special rapporteurs initially revisited these basic matters, they cited the work of the Harvard Research.2 24 Otherwise, the process of drafting the articles on State responsibility, accommodating the early work done in the Commission and the views of States, seemed to push out reference to the Harvard Research, though it has to be admitted that frequent references were made to the League of Nations' Bases of Discussion 225 and the Hague Codification Con226 ference's deliberations on State responsibility. Given the use made by the ILC of the Harvard Research in other relevant ILC projects, it is surprising that the three reports of the Special Rapporteur on the law of territorial waters, J.P. Franqois, do not refer to the Research; 227 nor do the final draft articles and commentary. 8 Instead, Franqois and the Commission rely extensively and frequently on the proceedings before and at the League of Nations Codification Conference of 1930.229 Nonetheless, in its deliberations, members of the Commission made mention of the 0 23 Harvard Research in support of, for example, the three-mile limit, the nature of a bay, 231 and the contiguous zone; 232 and the similarities
222
U.N. Doc. A/CN.4/490 (1998); U.N. Doc. A/CN.4/498 (1999); U.N. Doc.
A/CN.4/507 (2000); U.N. Doc. A/CN.4/517. 223 U.N. Doc. A/56/10, 76 (2001). 224 See 1956 III.L.C. Yb. 173 at 180, 181, 192, 200, 205, 207, 208, 215 216; 1957 IILL.C. Yb. 104 at 106, 110, 111, 118, 123, 124, 126, 128; 1961 ILL.C. Yb. 1 at 38, 51; 1969 IIlLC. Yb 125 at 128, 135; 1972 IIlLC. Yb. 7 at 89, 91, 92, 94, 125, 127, 143, 151; 1988 IILL.C. Yb. 6 at 16, 32. 225 L.N. Doc. C.75.M.69.1929.V. 226 L.N. Doc. 351(c).M.145(c).1930.V. 227 1952 IIt.L.C. Yb. 25; 1953 IILL.C. Yb. 57; 1954 IILL.C. Yb. 1. 228 1956 I.L.C. Yb. 265. 229 Bases of Discussion, L.N. Doc. C.74.M.39.1929.V; deliberations in Committee I of the Hague Conference, L.N. Doc. C.351(b).M.145(b).1930.V. 23o 1952I.L.C. Yb. 156, 161. 231 Ibid., 189-190.
The Harvard Research: Genesis to Exodus between the Harvard Research project on territorial waters and the Geneva Convention on the Territorial Sea and Contiguous Zone 1958233 are striking. In the process that led to the adoption in 1961 of the Vienna Convention on Diplomatic Relations, 234 the ILC had some regard to the Harvard draft Convention and commentary on Diplomatic Privileges and Immunities. However, as was explained by Commissioner Salaanca, "the opinions of writers and research work of the type carried out under the auspices of the Harvard Law School was of little value to the Commission's work since it tended to present the practices of a particular State as general principles of international law. '235 The Secretariat's initial memorandum summarized the Harvard project as one of nine private reform proposals to which it had regard, descriing the Harvard project as "important. ' ,2 36 The Special Rapporteur, A.E.F. Sandstr6m, referred to the Harvard project in his first report and cited its bibliography, 237 though his second report238 and the final report of the ILC on the subject 239 does not mention the Harvard project-or, for that matter, any other private codification proposals. Likewise for consular intercourse and immunities, the ILC had some, but not much, regard to the work on the Harvard Research on the Legal Position and Functions of Consuls. Commissioner Salamanca's strictures apply equally to the consular project; and the Secretary of the Commission agreed that the work undertaken by the Harvard Research on consuls was "no doubt ... the point of view of American scholars. 2 4 In his first report, Special Rapporteur Jaroslav Zourek referred to the "detailed draft codification" of the Harvard Research and commended its "abundantly documented commentaries. '2 41 In calling for a collection of legislative texts on consular
232 Ibid., 162. 233 516 U.N.T.S. 205. 234 500 U.N.T.S. 95. 235 1955 IlL.C. Yb. 272. 236 1956 JI.. C. Yb. 129 at 149. 237 1955 II.L.C. Yb. 9 at 14. 238 1958IILL.C. Yb. 16.
239
Ibid., 89.
240 1955 I I.L.C. Yb. 272. 241 1957 II I.L.C. Yb. 71 at 78.
Harvard Research on International Law representatives, he praised the Collection of Diplomatic and Consular Laws and Regulation of Various Countries, by Feller and Hudson, published through the Harvard Research in 1933.242 The Harvard 2 43 project gets no mention in the Special Rapporteur's second report or in the final draft articles.2 44 The Harvard Draft Convention on Competence of Court in regard to Foreign States was little used by the ILC in its work on the jurisdictional immunities of States and their property. While the first Special Rapporteur, Sompong Sucharitkel, stated in his preliminary report that the Harvard project had "a direct bearing on the topic under review, ' ,245 there was very little subsequent reliance on, or reference to, the Harvard Research. The eventual draft articles246 and Convention 247 owed more to the substantial developments in State practice in the area and to recent international agreements, particularly the European Convention on State Immunity 1976.248 In considering what became the piracy provisions of the Geneva Convention on the High Seas of 1958,249 the ILC Special Rapporteur, J.P.A. Franqois, is reported as making this immense tribute to the Harvard Research draft Convention on Piracy: "the subject of piracy had been studied very thoroughly by the Harvard Research Centre, to which Professor Joseph W. Bingham had submitted an exhaustive report. [Franqois] had felt he could not do better than to take the principal articles in Professor Bingham's report, and the comments thereon, as a basis for the discussion on the subject of piracy ... He had attached no comment to his individual articles, that appended to the Harvard articles, to which he referred members, being exhaustive and entirely satisfactory. 250
242
Ibid., 81.
243 1960 II I.L.C. Yb. 2. 244 1961 IIIL.C. Yb. 92. These articles were the basis of the Vienna Convention on Consular Relations 1963, 596 U.N.TS. 261. 245 1979 1IL.C. Yb. 231. 246 1991 IIlL.C. Yb. 12.
247 U.N. Doc.
A/59/508.
248
E.F.S. No. 74. 249 450 U.N.T.S. 82, arts. 14 21. See, to the same effect, U.N. Convention on the
250 1955 ILL. C. Yb. 39. See also 1956 IILL.C. Yb. 282.
Law ofthe Sea 1982, 1833 U.N.IS. 3, arts. 100 107.
The Harvard Research: Genesis to Exodus The ILC's major project on the law of treaties was quick to acknowledge and use the work of the Harvard Research draft Convention and commentary on Treaties. The first report by the first Special Rapporteur, James L. Brierly, acknowledged that his draft articles were based in part on the Harvard Research draft Convention; 251 and the Harvard Research draft Convention appears as the first of six appendices to the report.252 He described the Harvard commentary and bibliography as "of the highest value. 2 53 References to the Harvard Research project on treaties appear in Brierly's second and third reports,2 54 and in the reports of the subsequent (all British) Special Rapporteurs, Sir Hersch Lauterpacht,2 55 Sir Gerald Fitzmaurice256 and Sir Humphrey Waldock.25 7 In the course of the ILC's extended examination of the law of treaties, the Commission used the Harvard Research as a reliable source during its deliberations on many important aspects of treaty law. For example, the Harvard draft Convention and commentary was considered as part of the discussion of the process of concluding 26 259 treaties; 2 58 the effect of signature; the significance of ratification; entry into force; 261 accession; 262 authentic texts; 2 63 provisions in 2 265 favorem tertiis; 64 the principle pacta sunt servanda; interpreta266 267 268 tion; the definition and effect of reservations; the effect of
1950 1IL. Yb. 222 at 225. C. As Appendix A: ibid., 243. 253 Ibid., 226. 254 1951 II.L.C. Yb. 70 and 1952 III.L.C. Yb. 50. 255 1953 II.L.C. Yb. 90 and 1954 III.L.C. Yb. 123. 256 1956 III.L.C. Yb. 105, 1957 III.L.C. Yb. 16, 1958 IILL.C. Yb. 20, 1959 11
251 252
I.L.C. Yb. 37 and 1960 IL.C. Yb. 69. 257 1962 IL. C. Yb. 27, 1963 IL. C. Yb. 36, 1964 IILL.C. Yb. 5, 1965 11 I.L.C Yb. 3, 196611ILC. Yb. l and 1966 IILL.C. Yb. 51. 258 1951 IlL.C. Yb. 197. 259 1962 IlL.C. Yb. 88; 1962 IIlLC. Yb. 47. 260 1962 IL. C. Yb. 48, 70. 261 1962 IL. C. Yb. 71. 262 19621I.L.C. Yb. 54 55. 263 1966 ILL.C. Yb. 209. 264 1960 1I.L.C. Yb. 102 104; 1964 IILL.C. Yb. 24, 32, 42. 265 1949 IL.C. Yb. 103-104. 266 1964 IL.C.Yb. 275.

27 fraud 269 and duress on treaties; 270 rebus sic stantibus; 1 denunciation of treaties; 272 and the effect of hostilities. 273 It is noticeable that the Harvard references decline as the ILC project moves from the early research and drafting stage to the later consultation and refining stage, when the focus turns to elaborating draft articles on the basis of earlier drafts. Yet, the mark of the Harvard Research is clear in the final draft convention and commentary 274 and in the landmark Vienna Convention on the Law of Treaties.27 5 Significantly, when the ILC turned its attention to the effect of armed conflicts on treaties in 2004, the Harvard Research was referenced in both the memorandum 276 by the Secretariat and the Special Rapporteur's First Report.27 7
The Experts' Views

The Harvard draft Convention on Nationality and commentary are, 2 according to Ruth Donner, 78 to be regarded as a significant contribution to the League of Nations' beleaguered efforts at codification and to subsequent attempts to deal with the problem of statelessness. James Crawford and Tom Grant 279 consider both the 1929 Harvard Research draft Convention on State Responsibility and the 1961 Harvard draft Convention, concluding that the Harvard Research draft and commentary are remembered as an example of a codification project rather than for the practical positions and rules they enunciated. On territorial waters, the Harvard draft Convention merely reiterated other official and unofficial codification projects and had little individual impact on later codifications, yet, according to John
1951 II.L.C. Yb. 14. 1962 I.L.C. Yb. 66, 75; 1965 1I.L.C. Yb. 272. 269 1958 IILL.C. Yb. 37; 1963 III.L.C. Yb. 47. 270 1953 II.L.C. Yb. 151; 1958 II.L.C. Yb. 38. 271 1957 1IL.C. Yb. 43, 47, 52, 53, 54, 63, 67; 1963 IILL.C. Yb. 80, 81,83. 272 1963 IL. C. Yb. 100. 273 1964 IL. C. Yb. 21. 274 1966 IIL.C. Yb. 177. 275 1155 U.N.T.S. 331.
267 268 276
The Effect of Armed Conflict on Treaties: An Examination of Practice and
Doctrine, U.N. Doc. A/CN.4/550, 8, 13, 70, 75,76. 277 UN. Doc. A/CN.4/552, 13, 18. 271Chapter 2, infra. 279 Chapter 3, infra.
The Harvard Research: Genesis to Exodus Grant,280 its provisions came to represent the prevailing law in all major particulars. Eileen Denza 2 81 locates the Harvard Research project on diplomatic privileges and immunities in the attempts to codify modern diplomatic law, beginning in 1815 and culminating in the 1961 Vienna Convention on Diplomatic Relations. She concludes that the Harvard project had its greatest influence in the negotiations leading to the Vienna Convention, not least because of the detail contained in the draft Convention and commentary. Craig Barker 28 2 is more reticent about the contribution of the Harvard Research project on the legal position and functions of consuls to the current law regulating consular relations as stated in the 1963 Vienna Convention on Consular Relations, which was itself highly influenced by the 1961 Vienna Convention on Diplomatic Relations. He argues that the key distinction drawn by the Harvard Research between consular and diplomatic functions is of less significance today and that it is the similarities between consuls and diplomats as state functionaries serving abroad that is at the heart of the modern law on the subject. The Harvard project on the competence of courts in relation to foreign States is evaluated by Hazel FOX. 28 3 She concludes that the Harvard project, while dated as overly State-oriented, gets a favorable grade for its emphasis on national courts as the settlers of commercial disputes between individuals and States and an adverse grade in its lack of emphasis on impartiality and uniformity in accordance with universal standards of justice in such national settlements. In a singu8 lar analysis of the Harvard piracy project, Alf Rubin 2 4 argues against any internationally agreed definition of piracy and, hence, against any international crime of piracy-and, most fundamentally, against piracy as the basis of universal jurisdiction. In this analysis, the Harvard Research is of "minimal interest." 2 85 Analyzing the draft Convention on Extradition, Geoff Gilbert praises the courage of the Harvard Research in essaying a universal
280 281 282 283 284
285
Chapter Chapter Chapter Chapter Chapter Chapter
4, infra. 5, infra. 6, infra. 7, infra. 8, infra. 9, infra.
Harvard Research on International Law extradition convention, something that has still not happened globally. He comments on the radical stance of the Harvard team, especially in the primafacie case requirement and the non-extradition of nationals; and he also comments that many of the Harvard themes are now 2 86 commonplace in modern extradition treaties. Michael Scharf evaluates the Harvard draft Convention on Jurisdiction with respect to Crime principally through its assertion of universal jurisdiction. Taking a restrictive view of universal jurisdiction and its offshoot, the aut dedere autjudicareprinciple, he concludes that recent attempts to formulate rules on universal jurisdiction "unmistakably reflect the continuing influence and vitality of the [Harvard project]." In assessing the Harvard project on treaties, particularly the lessons to be drawn from it in the context of the codification of international law, Tony Aust 287 describes the project as "a mine for scholars interested in how international law developed in the inter-war period" and as an "invaluable account of differing views." He also comments on the lessons learned from the Harvard Research in the elaboration of codifying conventions. The evaluation by Jeremy Thomas28 8 of the Harvard draft Convention on Judicial Assistance questions the wisdom of grouping civil, criminal and international proceedings in the one instrument, yet nonetheless concludes that the Harvard project was significant in drawing attention to an important, but often neglected, area of international cooperation. After a thorough review of how the Harvard Research project on neutrality came to adopt the rules that it did, and 2 the merit or otherwise in these rules, Stephen Neff 89 concludes that the draft Convention on Neutrality had "very slight" impact on later developments, largely because it contained so much de legeferenda. Elina Steinerte and Rebecca Wallace290 identify the Harvard draft Convention on Aggression as very much a product of its time and the prevailing international situation. However, they praise the brave attempt of the Harvard project team, not least for tackling the issue of aggression, a term that still eludes an internationally accepted definition.
286
Chapter 10, infra.
287 Chapter 11, infra. 28 Chapter 12, infra.

289
Chapter 13, infra.
290 Chapter 14, infra.
The Harvard Research: Genesis to Exodus
Conclusions
It is impossible to imagine any contemporary law school, however well endowed with intellectual and financial capital, imagination and energy, being able to match what Harvard Law School sustained for the twelve years of the Research in International Law. By any reckoning, the Research operated on a huge scale. The Advisory Committee, originally with forty-four scholars and jurists, 29 had sixty-three members during the fourth phase of the Research; 292 and met on twenty-eight separate days between January of 1928 and February of 1939.293 In all, a total of 102 individuals participated in the thirteen codification projects, as reporters, assistant reporters, research assistants or advisers; 294 and they met on at least a total of 136 separate occasions. 29' The outcome of the Research, the draft conventions, accompanying commentaries and appendices, fill 2,398 pages in the American Journalof InternationalLaw's supplements. 296 The scale of this Research becomes even more remarkable when one considers that all the participants were important and busy people and that communications, to attend meetings and to exchange drafts and comments, were much more difficult than they are today. It is clear that the thirteen Harvard projects had an influence on the development of international law and thinking, some more than General Introduction, 23 Am. J. Int'lL. (Spec. Supp) 1 at 7 (1929). General Introduction, 33 Am. J. Int'l L. (Supp.) 1 at 2 (1939). 293 Id. at 6. 294 See the General Introductions, 23 Am. J. Int'l L. (Spec. Supp.) I at 7 8 (1929), 26 Am. J. Int'l L. (Supp.) I at 11 -12 (1932), 29Am. J. Int'l L. (Supp.) I at 5 7(1935) and 33 Am. J. Int'lL. (Supp.) I at6 9 (1939).
291 292
General Introduction, 23 Am. J. Int'l L. (Spec. Supp) I at 8 (1929), 26 Am. J. Int'lL. (Supp.) 1 at 11-12 (1932), 29Am. J. Int'IL. (Supp.) 1 at 7-8 (1935) and 33
295
Am. J. Int'l L. (Supp.) 1 at 7-8 (1939). There is no indication of the number of meetings of the Harvard team on aggression: Am. J. Int'l L. (Supp.) 1 at 9 (1939). 296 23 Am. J. Int'7 L. (Spec. Supp.) 1-380 (1929), 26 Am. J. Int'l L. (Supp.) 1-885 (1932), 29 Am. J. Int'l L. (Supp.) 1-1225 (1935) and 33 Am. J. Int'l L. (Supp.) 1909 (1939). That figure does not take into account the Collection of PiracyLaws of Various Countries published in 26 Am. J. Int'l L. (Supp.) 887 1013, nor Flournoy and Hudson, A Collection of the Nationality Laws of Various Countries (1930) and Feller and Hudson, A Collection of the Diplomatic Laws and Regulations of Various Countries (1933), both of which were published by the Research in conjunction with the Carnegie Endowment for International Peace.
Harvard Research on International Law others. The three projects in the first phase (nationality, State responsibility and territorial waters) had a direct impact on the (less than stunningly successful) Hague Codification Conference of 1930. All the Harvard projects found their way into the subsequent periodical and monograph literature. All the Harvard projects were utilized, to a greater or lesser extent, by the International Law Commission in its work in areas covered by the Harvard Research. None of the experts who have contributed to this book doubted the value of the Harvard Research in the projects on which they commented. If there is a single lesson to be drawn from the Harvard Research, it is that such endeavors require the commitment of a number of singularly gifted individuals. In that respect, there would have been no Harvard Research, or it would have ended after the first phase and the collapse of codification in the League of Nations in 1930, but for Manley 0. Hudson, ably abetted by George W. Wickersham, Phillip Jessup and all the international law talent of the period. The final words should be left to Hersch Lauterpacht, who, like Manley Hudson, had a glittering career as a professor of international law, law reformer and World Court judge,29 7 and who wrote in 1955: "The work of the Harvard Research, the most important and successful in the sphere of private codification, has shown the wide possibilities of such effort in which the devotion and competence of individuals, unhampered by claims of geographical representation, can achieve results with an economy of expense and time which cannot be expected from official bodies of international composition., 298 That said, it must be questioned whether, with a permanent International Law Commission charged with the codification and progressive development of international law in existence since 1948, there is as much scope for private codification projects as there was in the 1920s and 1930s.
297
They both died in the same year, 1960. For an appreciation of Lauterpacht,
see Jenks, Hersch Lauterpacht-Scholar as Prophet, 36 B. Y.I.L. 1 (1960) and of Manley Hudson, see Jessup, Editorial Comment, 54 Am. J.Int'l L. 603 (1960), and the appreciations by Griswold, Katz and Stone in 74 Harv. L. Rev. 209, 212 and 215 respectively.
298
Codification and Development of International Law, 49 Am. J.Int'l L. 16 at 43 (1955); reprinted in Lauterpacht, Eli (Ed.), International Law. Collected PapersofHersch Lauterpacht(1970), Vol. 2, 264.
Chapter 2
NATIONALITY
Ruth Donner
The Harvard draft Convention on Nationality' was one of the first three draft conventions prepared by the research and drafting team organized at the Harvard Law School and known simply as the Harvard Research in International Law.2 It was specifically intended as preparatory work for the first League of Nations Codification Conference held in 1930, as were the other two drafts, on Territorial Waters and Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners, these three questions having been selected by the Eighth Assembly of the League of Nations in its resolution of 27 September 1927. 3 In this way, the Harvard Research made up for the lack of a research agency for the League-sponsored Codification Conference. It followed that this Harvard draft Convention on Nationality was in the mainstream of the then international movement to what the Fifth Assembly of the League of Nations in its resolution of 22 September 1924 referred as "meeting the legislative needs of international relations" and to "increasing the contribution of the League of Nations to the progressive codification of international law." 4 This was following on what was achieved at the first two Hague Conferences of 1899 and 1907. 1The draft Convention together with Comments to the text, a French translation and ten appendices appear at 23 Am. J. Int'lL. (Spec. Supp.) 11 (1929). See also HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft Convention appears below as Appendix 1. 2 J.T. Kenny, "Manley 0. Hudson and the Harvard Research in International Law 1927-1940," 11 Int. Lawyer 319 (1977). Kenny also recounts the vital part Hudson played both for the League and for the Harvard Research that Hudson himself modestly omitted from his General Introduction. 3 L.N.O.J., Spec. Supp., No. 53, 9. See the General Introduction on "Prospects for an International Conference on Codification of International Law," supra n.
1, 1 9, by the Director of the Harvard Research, Manley 0. Hudson, dated I April 1929. In April 1925, eleven subjects were selected for investigation; of these, seven were selected in March-April, 1927 by the Committee of Experts.
4 Hudson, General Introduction, supra n. 1, 1.
Harvard Research on International Law More specifically, Manley Hudson pointed out in the concluding paragraphs to his General Introduction to the draft that "[t]he work of the Research has been conducted with reference to the 'Schedule of Points' drawn up by the Preparatory Committee on 15 February 1928, but without reference to the replies of various governments to the 'Schedule of Points,' which were not available to the Reporters." This was the framework within which the Harvard Research carried out its work. At the same time, it must be emphasized that, although named the "Harvard Research," these draft conventions represented a joint undertaking as "the result of the work of American 5 jurists and scholars after thorough consultation., In November 1927, the Faculty of the Harvard Law School undertook to organize a Research in International Law for the purpose of preparing a draft of an international convention on each of the three subjects selected by the Eighth Assembly of the League, as noted above, and "forty-four scholars and jurists were invited to become members of an Advisory Committee under the direction of which the Research was to be conducted." Among the members of the Advisory Committee were included distinguished international lawyers at universities from the east to the west coasts of the United States, members of the New York Bar, with one member each from the Pennsylvania and District of Columbia Bars, State Department lawyers and a former Secretary of State, Elihu Root, with experience, inter alia, of the Second Hague Peace Conference and the drafting of the Statute of the Permanent Court of International Justice. There were also a number of distinguished international arbitrators, such as Jackson H. Ralston, formerly Umpire of the Italy-Venezuela Claims Commission. The Advisory Committee held its first meeting on 7 January 1928, at Cambridge, Massachusetts, and its last on 22-24 February 1929, again at Cambridge. Seven distinguished lawyers served as the Executive Committee of the Research, four of whom were professors at Harvard University, and one, Charles Cheney Hyde, at Columbia University, together with James Brown Scott, President of the Institut de Droit International, and George W. Wickersham, President of the American Law Institute. Wickersham was, also, appointed American delegate to the League Committee of Experts for the Progressive Codification of Interna5 Ibid., 9.
Nationality tional Law set up pursuant to a decision taken on 11 December 1924. In spite of this overlapping with the codification work of the League, the Harvard Draft, the Director pointed out, was "wholly unofficial. '6 Further, in its first stage, the Research was organized into three work groups, each headed by a Reporter. Richard W. Flournoy, Jr., Assistant to the Solicitor, Department of State, and Professor of International Law at the National University, was named Reporter for the subject of nationality. He was assisted by ten advisors, nine of whom also served on the Advisory Committee or the Executive Committee or both. The draft Convention on Nationality prepared by Flournoy and his advisors included twenty-two articles of the draft together with an introductory comment and full comments to each article.7 To this were added ten Appendices. Simultaneously with the publication of this draft, in 1929, though not a part of it, the Reporter, R. W. Flournoy Jr., together with Professor Manley 0. Hudson, compiled and edited A Collection of Nationality Laws of Various Countries as Contained in Constitutions, Statutes and Treaties, published by the Carnegie Endowment. An unpublished draft of the Nationality Convention prepared under the direction of Flournoy had been ready for members of the Advisory Committee in February 1929, and, in April 1929, was completed, published in the American Journal of International Law as a Special Supplement and a copy sent to the SecretaryGeneral of the League of Nations, who then provided copies for the states participating in the Committee of Experts. In this assessment of the contribution made by the Harvard draft convention on nationality, first the draft (and commentaries) will be considered, taking into account how it built on previous practice. For this, the ten appendices are of importance. Secondly, the draft will be compared with the contemporaneous League codification of international law and the resulting Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, with Protocols. Then the draft will be considered in the light of later developments and its relevance at the present time.
id.
'7Draft Convention, supra n. 1, 13-79.
Harvard Research: Draft Convention and Comments on the Law of Nationality The Draft and comments
The "Introductory Comment" to the articles and comments sets out the purpose for preparing this draft convention and the spirit in which it was carried out. The purpose is explained as follows: "The accompanying draft convention is based upon the assumption that states, while retaining the power to shape their own nationality laws to fit their peculiar situations and needs, will be willing to make certain changes and concessions, with a view to removing some of the existing conflicts and to preventing so far as possible, cases of double nationality and of no nationality." 8 It was pointed out that treaties concluded in recent times were designed to prevent conflicting claims of the contracting states where more than one nationality was possessed by an individual, from birth or due to emigration and naturalization elsewhere. In seeking to prevent conflicts between states arising from disparities in national laws, this draft code, "while in some of its provisions it declares what is believed to be existing international law, is not limited to a statement of existing law, and attempts to formulate certain provisions which, if adopted, would make new law." 9 The draft is thus in the nature of de legeferenda, even though it is based on the compilation of nationality laws of the various states and treaties concerning nationality. Appendix No. I to the draft is headed "An analysis of the laws of the various states" and covers 33 pages, the other nine appendices taking up 15 pages.10 Perhaps the codification of nationality laws lends itself especially to progressive development because "[in fact there seem to be no laws which are more fluid and subject to change... "11 Lastly, it is stated that the draft "is confined to the subject of nationality itself, without any attempt to deal with the consequences which may follow, such as diplomatic protec'Ibid., 21. 9 Ibid. Note D.P. O'Connell's caution concerning codification of international law: "It is important ... to understand what a codifying body thinks it is doing when it undertakes its task:" D.P. O'Connell, InternationalLaw (1965), Vol. 1,27. ' 0 Ibid.,80-113 and 114 129. " Ibid., 22.
Nationality tion." 12 This might appear to assume no conflict in the application of these rules, and hence no problem in their consequences. Introductory articles Article I provides definitions of terms used in this convention. There are three: (a) nationality is defined as "the status of a natural person who is attached to a state by the tie of allegiance;" (b) a national of a state is defined in the same manner as "a natural person attached to that state by the tie of allegiance;" then (c), naturalization is the "process by which a state confers its nationality upon a natural person after birth." Whereas the definition of "naturalization" contains nothing controversial in it, recognizing that it refers to every method of conferring nationality after birth, the definitions of "nationality" and a "national" do. The Comment to art. 1 offers an explanation for the use of these terms. First, the definitions of these three terms are stated to be for the purpose of their use in this convention only. And "nationality" in this convention is always used to indicate the relation between a state and a natural person. No attempt is made to formulate rules governing what may properly be called the nationality of corporations, as business organizations. Two terms used in paragraphs (a) and (b) of art. 1 are further commented upon. The "tie of allegiance," it is pointed out, does not include the "temporary allegiance" owed by aliens to a state within whose territory they may be residing or sojourning. But it does denote the sum of obligations owed by a natural person to the state to which he belongs, these obligations varying in different societies, and so not spelt out here. No mention is made of the classical, at least common law, tradition of a subject's relationship with his king or sovereign: allegiance owed by the subject, protection granted by the king. Further, an explanation is given in the Comment for why the term "national" is used, instead of the synonymous "subject" or "citizen." Here the draft makes a distinction between international law in that "[t]he term 'nationality' has reference to the position of a natural person from the standpoint of international law." 1 3 "Nationality" has a
12id.
' Ibid., 23.
Harvard Research on International Law broader meaning than "citizen," for citizenship denotes the right or privilege of exercising civil or political functions. Citizenship refers to the status of an individual within the state. Authority is given for this distinction. Then the Comment quotes J. B. Moore's International Law Digest, to the effect that use of the term "nationality" "has become common in the United States since the acquisition of the Philippine Islands and other insular possessions having inhabitants who, though they have American nationality and are entitled to full protection abroad by the Government of the United States, have not the status of "citizens of the United States," within the meaning of the 14th Amendment to the Constitution."14 Examples are given where the term "national" is used in a number of recent treaties, including the Treaty of Versailles of June 28, 1919, and bilateral treaties to which the United States is a party. The other introductory article, art. 2, states three basic propositions. These are: that each state may determine by its law who are its nationals; this is true except as otherwise provided in this Convention and subject to the provisions of any special treaty to which the state may be a party; "but under international law the power of a state to confer its nationality is not unlimited." The first part is selfexplanatory. That each state has a discretion to determine who are its nationals was the cause of just those conflicts, leading to double nationality or statelessness, that the draft convention was designed to solve. The Permanent Court of International Justice, however, had recently had occasion to deal with this discretion. In its advisory opinion of 7 February 1923, on the Nationality Decrees in Tunis and 1 Morocco, 5 quoted in the Comment to art. 2, the Permanent Court had stated, putting some limit on it: "The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus in the present state of international law, questions of nationality are, in the opinion of this Court, in principle within this reserved domain." In its Minorities Treaties Opinion, the Permanent Court stated that "though, generally speaking, it is true that a sovereign state has the right to decide what persons shall be regarded as its nationals, it is no less true that this principle is
14J.B. Moore, International Law Digest (1906), Vol. 3, 372
379.
15P.C.I.j., Ser. B, No. 4, 24 (1923).
Nationality applicable only subject to the treaty obligations of the state. 16 How international law limited the power of a state to confer its nationality "was difficult to precise." The Harvard Comment contented itself with the proposition "that some limitations do exist." We are left with the limits set by treaty obligations. Nationality acquired at birth Arts. 3 to 9 deal with the first way in which states may confer nationality by birth. Arts. 10 to 12 cover those cases where two or more nationalities are acquired at birth. Art. 3 states quite clearly that there are two, and only two, ways in which a state may confer nationality at birth: "A state may not confer its nationality at birth upon a person except upon the basis of (a) the birth of such person within its territory or a place assimilated thereto (jus soli), or (b) the descent of such person from one of its nationals (jus sanguinis)." To back this up, the Comment states that it "is believed that no basis other thanjus soli orjus sanguinis can be found upon which nationality at birth can properly be conferred." This rules out states in their nationality legislation making any far-reaching claims on the allegiance of individuals who have no connection with that state and its population. A careful analysis is made of the nationality laws of the various states, whether based on jus sanguinis or jus soli, and reference given to past practice and doctrine. This enabled the Comment to conclude that "international law has not adopted either system to the exclusion of the other. Nor does there seem to be in the existing international law any provision for preferring one to the other
16 Acquisition of Polish Nationality, P.C.LJ, Ser. B, No. 7, 16 (1923). The Comment also referred here to the naturalization treaties between the United
States and the German states, known as the "Bancroft treaties," so-called after George Bancroft, the American Minister who negotiated the treaties with Prussia and the North German Confederation from 1868 onwards, and other similar naturalization conventions which served to modify the nationality laws of the states which were parties to them. These treaties were concluded to solve the problem of naturalized U.S. citizens who then returned to their country of origin with intent to stay. This constituted a special problem for the United
States as a country of immigration. See R. Donner, The Regulation of Na-
tionality in InternationalLaw (2nd ed., 1994), 42-43 (printing errors in notes 39

and 40, Flournoy and now not "not") and 142 144.
Harvard Research on International Law as the basis of nationality. 1 7 This is so even though it is acknowledged that the application of these two principles can lead to cases of dual nationality at birth. It is interesting to note that at the International Law Association's Thirty-third Conference held in Stockholm in September 1924, the Committee on Nationality and Naturalization suggested in a Model Statute, to be recommended for incorporation into municipal legislation, an article, "1(a) Every child born within the territory of a conforming State shall become a national of that State." This Report is contained in Appendix No. 5 to the Harvard Draft.18 The Draft Rules prepared by the Japanese Branch of the International Law Association in 1926, on the other hand, state in art. 4 the basic rule that "[a] legitimate child acquires the nationality of the State to which its father belongs at the date of its birth." It continues in art. 5 to rule that birth in the territory of a particular state shall be recognized by all states as grounds for the conferment of nationality at birth. 9 The formulation of the Harvard Draft is more in accordance with the practice of states; it also makes clear that neither thejus soli nor the jus sanguinis is dominant. The addition of the words "or a place assimilated thereto" in art. 3(a) is explained as defining what is meant by the "territory" of a state and is, thus, a necessary addition. Arts. 4, 5 and 6 add limits on the application of these two basic principles. Thus, art. 4 limits to the end of the second generation of persons born abroad the conferment of nationality at birth, jure sanguinis. However, in limiting application of thejus sanguinisprinciple, not only must such person be born in the territory of another state, he must also continuously maintain an habitual residence therein, and have the nationality of such other state. That is to say, two generations following the original emigrant may receive nationality jure sanguinis, but no more. Whereas the Comment quotes legislation and doctrine, it is admitted that this article "does not purport to state the existing law," but the rule "is suggested as a reasonable limitation." The interests of the state to which people may have migrated must be taken into account.
1 8
Supra n. 1,27 29.
Ibid., 119. '9 Ibid., Appendix No. 7, 123.
Nationality Here the interests of countries of emigration and immigration are clearly differentiated. And the term "habitual residence" makes its entry, as referred to above. 20 The Comment refers to its use in postWorld War I treaties, of 1919, 1920 and 1924: "Perhaps the content of that term cannot be stated very exactly, but it seems a more satisfactory term than any other which might be employed in this connection. Generally speaking it refers to the place where a person has his principal place of abode, or if that cannot be ascertained the place which is the center of his principle activities and interests. 2 1 Reference is given to special definitions in treaties. Art. 5 excludes from the application of nationality at birth, the jus soli principle, those persons born within its territory "if such person is the child of an alien having diplomatic immunity therein or otherwise not subject to its jurisdiction." The Comment stresses the importance of this wording, emphasis not being on whether, or not, the parents are diplomatic officers and "[n]o attempt has been made ... define to and state the limitations of diplomatic immunity." But it is suggested that it does apply to the child of a consul of a foreign state "if such consul is entitled to diplomatic immunity under the law of the state of birth or a treaty to which such state is a party." The wording of art. 5 would thus exempt children of foreign sovereigns and children born on public ships of foreign states. It would, therefore, "also exempt children born in territory of a state temporarily occupied by the armed forces of another state, at least if the parents of the child have the nationality of the occupying state. 22 Art. 6 deals further with a state's application of the jus soli principle in the conferment of its nationality "upon a person born
20
22
21 Ibid., 32.
Ibid., 30 34. Ibid., 33. See Donner, supra n. 16, 283-287; and Ko Swan Sik, ed., Na-
tionality and International Law in Asian Perspective (1990), articles by Sornarajah and Ko Swan Sik. Here the nationality laws of Singapore and Bangla
Desh exempted from nationality at birth on the territory where the person is born of an enemy alien father and the birth has occurred when Singapore was under
occupation by the State of the enemy alien, and, for Bangla Desh, where the
persons collaborated with the Pakistan Government and army against the Provisional Government of Bangladesh in exile in India and its liberation forces during the Bangladesh War of Independence.
Harvard Research on International Law within its territory who is the child of an alien then present therein as an officer of another state but not having diplomatic immunity therein ... " This is to recognize that there are representatives of various categories who are sent to other states and, one may add, do not intend to settle in the country where the child is born. And, though it is admitted that the adoption of art. 6 "will add a new rule to existing international law," the article continues, with reference to the state of birth, "such state shall provide procedure by which the child may be divested of that nationality during its minority." There is thus no need for the fiction that the children are born in the country from which their parents come.23 And children cannot be claimed as nationals for purposes of military service. Art. 7 provides that a "state shall confer its nationality, as of the time of birth, upon a child born within its territory of unknown parents or of parents whose nationality cannot be ascertained ... " This provision is intended to prevent statelessness for such persons born in countries whose nationality laws are based on thejus sanguinis. After a careful analysis of provisions similar to this in the laws of twentythree countries, the Comment concludes: "It may be proper to regard this article as making a new rule of international law, and it might require some countries to change their laws." The conclusion of art. 7 is: "it shall be presumed that a foundling was born in the territory of the state in which it is first found." This is another special provision, of undoubtedly ancient origin, put in a separate article from the general rule contained in art. 9. Art. 8, however, comes between the articles on conferment of nationality to avoid cases of statelessness. Art. 8 deals with the case of a child "born of parents who are of different nationalities and not married to each other ... " This is of special importance for those countries applying the jus sanguinis, and so the rule is that, as the article continues, "the state of which the mother is a national shall regard the mother as standing in the place of the father for the purpose of determining the descent upon the basis of which its nationality (jure sanguinis)may be conferred ... " It then goes on that, if the child is legitimated by the father before the age of 21, it shall be regarded as a national of the father's country. A proviso is added that, if the child is residing in the territory of the state of which the mother only
23
Ibid., 34.
Nationality is a national at the time of legitimation, then the father' s nationality is not acquired. The term "habitual residence" is not used, only "residing." The nationality laws of 28 states are analysed. The clear and straightforward wording of the German Nationality Law of 1913, embodying this rule, is quoted. The subsequent legitimation must be in accordance with German law. The law of the United States provided no such rule, and the Comment points out that "the law of nations" has no rule, although proposed by Van Dyne, because "the question whether a person is a national of the United States depends upon the municipal law of the United States or a treaty to which it is a party. 24 As with a number of earlier articles, the Comment concludes: "While Article 8 seems to coincide in principle with the laws of many countries, its adoption will have the effect of making a new rule of international law."25 Art. 9 is put in as a general rule: "A state shall confer its nationality at birth upon a person born within its territory if such person does not acquire another nationality at birth." Again, it is specifically designed to prevent the existence of statelessness in cases of persons born under certain conditions in countries applying thejus sanguinis. Similar provisions were included, the Comment states, in some of the Peace Treaties of 1919, and the Minority Treaties signed by the Allied and Associated Powers and Poland, Czecho-Slovakia, Roumania, the Serb-Croat-Slovene State and Greece.26 Arts. 10 to 12 deal with the consequences of a person acquiring more than one nationality at birth. Here it must be remembered that one of the avowed reasons for proposing this draft Convention was to avoid cases of dual nationality. Art. 10 states the fact that it is possible for a person at birth to have the nationality of two or more states, of one or more states jure soli and of one or more states jure sanguinis. An example given in the Comment for a person having dual nationality by jure soli is that of a person born in a territory under a condominium, and so no longer relevant. Another example given is that of a person born on a British vessel within the territorial waters of the U.S. No attempt is made to
24
Ibid., 36. Ibid., 37. Ibid., 37-38.
25
26
Harvard Research on International Law deal with the problem of the nationality of ships. As for nationality acquired at birth in more than one state jure sanguinis,the interesting example is given of the Turkish nationality law effective 1 January 1929, art. I of which provides that "children born in Turkey or abroad of a Turkish father or Turkish mother are Turkish citizens. ,,27 However, the basic point made in art. 10 is that, given that the two accepted modes of conferring nationality at birth are of equal validity, there being no agreement on a single rule for acquiring nationality at birth, examples of persons with dual nationality acquired at birth will occur. Art. 11 pinpoints one of the major problems faced by dual nationals, bearing in mind that this draft Convention does not deal with questions of diplomatic protection, which is based on the rule of the nationality of claims. This problem is the obligation that may be owed by a dual national to perform his military service in both countries whose nationality he possesses. The draft provides that such person "shall not be subject to the obligation of military or other national service in one of those states while he has his habitual residence in the territory of another of these states." The criterion of habitual residence is again referred to. And, again, the Comment points out that this rule would involve a change because "no such distinction is recognized in existing international law, according to which the claims of the two states are equal.,, 28 The problem had so far been addressed by means of bilateral treaty arrangements. Art. 12 generalises the rule while making it at the same time more precise. Art. 11 refers to no age of majority at which time a dual, or multiple, national must opt for one of his nationalities. Art. 12 puts "attaining the age of twenty-three years" as the time at which a person who has the nationality of two or more states from birth must retain only that nationality "in the territory of which he then has his habitual residence." The age of twenty-three is explained in the Comment as given with the purpose of allowing the individual two years after attaining his majority in which to decide wherein he would reside. The second part of the article extends this use of the criterion of "habitual residence." Where such a person, with more than one nationality, has his habitual residence in a state of which he is not a na27 Ibid., 38. 21 Ibid., 40-41.
Nationality tional, he shall retain the nationality only in that state, whose nationality he acquired at birth, in the territory of which he last had his habitual residence. This is to cover any problems that may arise in connection with dual national status. Nationality acquired by naturalizationafter birth Arts. 13 to 17 then cover the other way in which nationality may be acquired, after birth by naturalization (art. I (c)). Art. 13 is perhaps the most controversial article of the draft Convention. The first paragraph states: "Except as otherwise provided in this convention, a state may naturalize a person who is a national of another state, and such person shall thereupon lose his prior nationality." The opening proviso indicates that conditions follow limiting the general propositions contained in this first paragraph. The right to naturalize, rather than be naturalized, is clearly given to the state. As the Comment notes: "During the past half century there has been an enormous increase in emigration, especially from European countries to American countries. Such emigration is ordinarily accompanied by naturalization in the countries of immigration. It seems necessary therefore to regard the question of the status of naturalized citizens as an international problem of considerable magnitude ..." While the rule is phrased "a state may naturalize," the third paragraph of the Comment states: "This article accords with the principle commonly known as the 'right of expatriation,' that is, the right of the individual to divest himself when of age of a nationality conferred at birth." It is pointed out that this "right" is by no means generally recognized, many states claiming permanent allegiance from their nationals. This is a very real problem in practice, as has been shown in the Iran-United States Claims Tribunal where Iran continued to follow the Iranian rule of permanent allegiance.29 To rule that a state may naturalize a person who is a national of another state is thus not without complications. Nor is the following proposition, that "such person shall thereupon lose his prior nationality." The Comment contains an analysis of a wide range of na29
See CaseA/18, 5 Iran-U.S.C.T.R (1984), below n. 58. The Comment to art. 13
also points out that a century ago all, or nearly all, countries of the world held to the doctrine of indissoluble allegiance: ibid., 46-47.
Harvard Research on International Law tionality laws, contained in Appendix 1, from which it is clear that this rule as to consequent loss of nationality of origin is by no means generally accepted. It continues: "However, most modern writers on the subject of international law seem to agree that the 'right of expatriation' proclaimed by the Government of the United States in the Act of Congress of July 27, 1868, ... is entitled to general recognition." It is interesting to note that, although the draft Convention expressly excludes questions of diplomatic protection, Section 2000 of the Revised Statutes of the United States is quoted, as follows: "All naturalized citizens of the United States, while in foreign countries are entitled to and shall receive from this Government the same protection of persons and property which is accorded to native-born citizens. 3 Already, the second paragraph of art. 13 contains limitations on the stated rule. Naturalization does not wipe out liability for a person "for an offence committed by him against his former state while a national thereof ..." The Comment refers to some authors who support the "right of expatriation in a broad sense, yet insist that it must be subject to regulation by the state of origin, to enable that state to protect its safety and welfare., 31 The article concludes that this liability for an offence committed by him, the naturalized person, does not include failure to perform military service, "the liability for which arose after his acquisition of an habitual residence in the territory of the naturalizing state." This is to say that the claims of the country of origin cease at the time when a permanent residence is acquired in the naturalizing state. This rule is modelled closely upon art. II of the Naturalization Treaty of 1923 between the United States and Bulgaria.3 2 Art. ii of that Treaty refers to the point at which bona fide residence is acquired.33 Notification of naturalization to the state of origin is not required for the reason that it would impose too great an administrative burden on some states. Art. 14, further, limits the right of a state to naturalize a person: "Except as otherwise provided in this convention, a state may not
30
31
Ibid., 47. Ibid., 49. 3225 L.N.T.S. 257. 33 Ibid., 50-51.
Nationality naturalize an alien who has his habitual residence within the territory of another state." It is on purpose that the word "alien" does not only refer to aliens of full age. And it is intended to restrict a state's right to confer its nationality. Art. 3 of the Resolution of the Institute of International Law of 1928, to the same effect, reprinted in Appendix 34 No. 9, is referred to. Art. 15 further limits a state's right to naturalize a person of full age who is a national of another state by not allowing it without the consent of such person. However, such consent is not required from a person not of full age "in connection with its naturalization of his parents." The Comment to art. 14 had already referred to the requirements of maintaining unity of the family, and the Comment to art. 15 repeats it. The necessity for the article arose following nationality legislation in certain South American countries in accordance with which their nationality was imposed automatically on aliens, without their express consent, subsequent to certain acts, such as the purchase 35 of real property Art. 16 applies, as explained in the Comment, "to a naturalized person who (1) returns to the territory of the state of which he was formerly a national, and (2) establishes therein a residence of a permanent character." The rule proposed in art. 16 is then that "the latter state may re-impose its nationality upon such person without his consent, whereupon he shall lose the nationality acquired by naturalization." The problem faced here, and dealt with so strictly, is that of naturalized persons who are not intending fully to take on the obligations as well as the privileges of the state of their new nationality, but want to escape obligations to the countries from which they come. This was a problem already addressed by the United States in the Bancroft Treaties. Of interest here is the term "residence of a permanent character" which has a different connotation from the term "habitual residence." The former relates to the intent of an individual
Ibid., 52. Note that this was in fact the outcome of the decision in the Nottebohm case. Nottebohm's naturalization in Liechtenstein was contrary to this clearly stated rule: Liechtenstein v. Guatemala, Second Phase, 1955 IC.J.
34
Rep. 4. " Ibid., 53-55. See Donner, supra n. 16, 123-124 and 160-165.
Harvard Research on International Law at a particular moment and the latter to the place where he is physically present for the most part over a period of time.36 Art. 17 refers expressly to the question of fraud. It states that, where an alleged naturalization is in question between two states, "such naturalization may ordinarily be established by a certificate issued by the competent authority of the naturalizing state; but the validity of such a certificate may be impeached upon the ground that it was procured fraudulently or issued in violation of the provisions of a convention to which the naturalizing state is a party." The Comment here has a wealth of material to draw on, even just from United States' practice in 37 J.B. Moore's History and Digest of the InternaArbitrations. tional Two points merit special attention. First, this does not refer to interstate relations, for "no state can properly assume authority to render a final decision ex parte upon the question of the validity of a naturalization certificate issued by another state ... " But, it continues, "this does not mean that the first state cannot question the right of the second state to espouse a claim against it when the first state has positive proof that the certificate of naturalization through which the individual claims the support was fraudulently procured. 8 There must be proof of actual, wilful fraud in the procurement of the certificate. However, fraudulent intent will be presumed "where the requirements in the naturalization laws concerning residence have been clearly and flagrantly violated." This has been the jurisprudence of arbitral tribunals. So, secondly, the draft convention clearly refers to questions of nationality for the espousal of claims in spite of the statement in the Introductory Comment that the draft is confined to the subject of nationality itself.
36
Ibid., 55-56.
37 J.B. Moore, History and Digest of the International Arbitrations to which the
Ibid., 59. The Comment refers to how the subject was thoroughly thrashed out before the United States-Spanish Commission created under the agreement of 1871. H.W. Briggs quotes from the Dominguez and Buzzi case, 1882, that fraud in the obtaining of a naturalization certificate consists of "intentional and dishonest misrepresentation or suppression of material facts," The Law of Nations. Cases,Documents and Notes, (2nd ed., 1952), 472.
38
United States has been a Party (1898, 6 volumes).
Nationality
Concluding articles
So far, the draft convention has been concerned with the acquisition of nationality at birth or by naturalization after birth, and the problems arising from conflicting nationality laws. Arts. 18 to 22 deal with miscellaneous topics. Art. 18 deals with nationality where a state succession has taken place. That is to say, "[w]hen the entire territory of a state is acquired by another State," as dealt with in the first paragraph, or "[w]hen a part of the territory of a State is acquired by another State or becomes the territory of a new State," as in the second paragraph. The Comment to this article is very full, learned and thorough.3 9 Two points may be made here. First, statelessness is to be avoided, so in the first paragraph the nationality of the successor state is acquired regardless of residence, whereas the second paragraph stipulates habitual residence as a requirement for acquiring the nationality of the successor state. Secondly, both paragraphs clearly provide for the individual's choice of nationality. This consideration for the wishes of the individual runs through this draft convention, although not referred to in the Introductory Comment. In the same spirit of painstaking research, the Comment to art. 19 deals with the difficult question of the nationality of married women. 40 The problem is that, when a woman marries a man of different nationality, it frequently leads to her becoming stateless or having dual nationality, as a result of conflicting national legislation. Art. 19 provides that a woman who marries an alien retains the nationality she had before marriage, subject to "a contrary election on her part." If she becomes a national of the state of which her husband is a national, it is required that she establish or maintain "a residence of a permanent character in the territory of that state." Here two basic principles conflict: on the one hand, that of family unity; on the other, that of the equality of the sexes. In addition, a state, here that of the husband's nationality, has a right to require of the wife some further indication of intent to acquire her new nationality, with all that that entails. The Comment suggests that, although not a generally accepted rule, art. 19 could provide a solution, preventing stateless39
40
Ibid., 60-69. Ibid., 69-76.
Harvard Research on International Law ness, allowing choice to the wife, and accepting the wife's change of nationality where she takes up "residence of a permanent character in her husband's state." Art. 20 squarely faces the problem of a state's refusal to receive a national, or a former national, into its territory when such a person has not acquired the nationality of any other state. 41 At the time of the Harvard draft, the Comment could refer to the "not wholly obsolete practice of states to banish nationals." This may date from the time before prisons as places of detention were introduced as punishment. At the present time, the problem reappears, for example, in relation to would-be migrants to Europe from Africa. Art. 20 gives a right to a person to live in the country of his nationality or of his former nationality if he lost that nationality without acquiring another. Art. 21 runs as follows: "States parties to this Convention may conclude special agreements to govern cases in which those states only are especially interested." The Comment explains that the provisions of the draft code contain much that is new legislation and "some freedom must be left to states which have special problems inter se." This was referring especially to "Recent territorial changes, involving important questions of nationality. '4 2 Art. 22 is a clearly drafted compromissory clause, providing that "[a]ny dispute between states parties to this convention, with respect to the interpretation or application of the provisions of the convention" may be brought before the Permanent Court of International Justice "by either party to the dispute." It is a true example of compulsory jurisdiction in that no further agreement is needed between the parties to go to the Court. The only condition is that the dispute must be one "not settled by negotiation and which is not referred to arbitration under a general or special arbitration treaty. 43
41
42
Ibid., 78. After 1918, for example, the Austro-Hungarian Monarchy was succeeded by seven independent States. 43 See, especially, L.B. Sohn, Settlement of Disputes Relating to the Interpretation of Application of Treaties, in (1976) 150 Recueil des Cours, 195 at 213; R.
Donner, InternationalAdjudication: Using the International Court of Justice (1988), 72 74. A recent example of such a model compromissory clause is
Ibid., 77-78. Donner, supra n. 16, 180.
contained in art. 27(2) of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004, U.N. Doc. A/RES/59/38, reprinted in 44 LL.M. 803 (2005).
Nationality This is the Harvard draft convention. In assessing its contribution and relevance the following is, first, an attempt at a critical compareson with the contemporaneous work of the League of Nations codification of international law.
The League of Nations: Committee for the Progressive Codification of International Law and the Convention and Protocols on Nationality
The manner in which the Harvard Research in International Law organized and carried out its work has been described at some length above, including its close connection to the League codification process. In spite of this, there is no public recognition in the work of the League to show that the Harvard draft was of importance in drafting the League Convention of 1930. There can be reasons for this. For the first, the early work of the League Committee of Experts was concluded even before the Harvard Research began its work. On 8 April 1925, a subcommittee, composed of de Magalhaes, Rundstein and Schficking, was nominated by the Committee of Experts for the purpose of drawing up a report in answer to two questions: what problems arising from the conflict of nationality laws may be solved by way of conventions "without encounering political obstacles" and, secondly, what are the problems and how should they be solved? 44 The Rapporteur, Dr. Rundstein, prepared detailed reports together with a Preliminary Draft of a Convention for the Settlement of Certain Conflicts of Laws Regaring Nationality, plus amended Draft, dated Warsaw 8 October 1925 and 3 January 1926. 45 These reports were drafted prior to the participation of governments and hence differed from the final text of the Convention. Another, more substantial, reason for the fact that the League Committee worked quite independently of the Harvard Research is that the former was an official body while the latter was "wholly unofficial." The meaning of "international codification" and the ways
44 League of Nations. Committee of Experts for the Progressive Codification of
International Law [1925 1928] (1972), edited with an Introduction by S. Rosenne, Vol. 1, 42 and 44. 45 Ibid., Vol. II, Documents, 35-54.
Harvard Research on International Law in which it differed from "internal codification" was discussed at length at the First Session of the Committee of Experts. The Chairman at the Fifth Meeting, held on 4 April 1925, M. Hammarskj~ld, put quite clearly what was also pointed out elsewhere: "What then was the task of the Committee? The Committee must aim at encouraging the conclusion of new conventions between States. To attain this object it did not seem either necessary or useful to determine in the abstract what belonged to the domain of strict codification or to the domain of legislation. The essential object was to discover, in a concrete and practical form, what was acceptable to Governments. 46 However, at the Conference for the Codification of International Law, which met at The Hague from 13 March to 12 April 1930, the preparatory work carried out by Professor Manley 0. Hudson and his associates at Harvard University and the volume of drafts and reasoned conclusions resulting from it were particularly appreciated by the delegates. Hunter Miller attested to how the volume "was in constant use by the delegations at The Hague ... and expressions of appreciation of the learning and public spirit which made such a work possible were very frequent. Before turning to a comparison of the articles of the Harvard draft on nationality with the articles of the League Convention, two aspects of the working procedure of the League Committee must be noted, because they affect the substance of the Convention on Certain Ques49 48 tions Relating to the Conflict of Nationality Laws, with Protocols, signed at The Hague, 12 April 1930.
46
Ibid., Vol. 1, Minutes, 24. At the Third Meeting, 2 April 1925, M. Fromageot
pointed out that "in regard to international law the only existing basis was that of consent:" ibid., 16. So, too, Elihu Root pointed out that the work of international codification "must ultimately be accomplished by official representatives of the nations acting under instruction of their several governments:" The Codification of International Law, 19 Am. J. Int'lL. 675 at 682 (1925). 47 H. Miller, The Hague Codification Conference, 24 Am. J. Int'l L. 674 at 674 (1930). 48 179 L.N.T.S. 89. 49 178 L.N.T.S. 227, 179 L.N.TS. 179 and L.N. Doc. C.27.M.16.1931.V.
Reprinted in 24 Am. J. Int'l L. (Spec. Supp.) 215 (1930).
Nationality
Working procedure
First must be noted the way in which the Committee of Experts was appointed, as differing from the equivalent procedure at the Harvard Research. The resolution adopted by the League Assembly on 22 September 1924 requested the Council to convene a Committee of Experts with the task of reporting to the League Council on those questions of international law they considered to be sufficiently ripe for codification, "with a view to preparing eventually for conferences for their solution." This initiated and served as the basis for the League's work on the Progressive Codification of International Law. The resolution stipulated that the members of this committee of experts should not merely possess individually the required qualification, but also as a body represent the main forms of civilization and the principal legal systems of the world.5 The wording of art. 9 of the Statute of the International Court of Justice (ICJ) is identical. Further, no two members of the Committee of Experts were nationals of the same country, in keeping with art. 3 of the Statute of the ICJ. In his Introduction to the volume on the League of Nations. Committee of Experts for the Progressive Codification of International Law, Rosenne refers to the "imposed composition of the Committee, set up in effect by secret diplomatic negotiations." " That they were not, as he also observed, subjected to any form of international election, as compared with the U.N. International Law Commission, was, of course, also true of the Harvard Research.52 Secondly, whereas the Preliminary Report and Amended Preliminary Report, 1925 and 1926, presented by Dr. Rundstein as Rapporteur, represented the work of the subcommittee, the final Convention plus Protocols takes into account the replies of Governments, many of them, such as the German, quite extensive, to the Schedule of Points in the form of a questionnaire drawn up on 15 February
50
Rosenne, supra n. 44, Vol. I, vii.
51 Professor
Schacking, of Kiel University, Germany, thanked at the First Meeting of the Committee of Experts for "the invitation which had been addressed to him to take part in the work of the Committee of Experts, all the more so as he
was a national of a country not yet a Member of the League." Rosenne, ibid.,
Vol. I., Minutes, 10. 51 Ibid., cii.
Harvard Research on International Law 1928, by the Preparatory Committee of five members who were appointed once the topics were decided on. This can explain the discrepancies between Dr. Rundstein's preliminary reports and the final negotiated text. The Harvard Research, on the other hand, was more of a scholarly text, including as it did often lengthy comments, and, although American in outlook, not subject to the political considerations of governments. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930 This Convention was signed at The Hague at the end of the Codification Conference on 12 April 1930. Of the forty-eight countries represented at The Hague, the representatives of thirty-seven signed it, and it entered into force on 1 July 1937.53 In the Report of the First Committee, the Rapporteur, Dr. Guerrero, presented the text of the Convention on nationality together with the "Bases" proposed by them.5 4 Hunter Miller explains, as follows: "Those Bases were, in fact, the bases of discussion of the respective subjects at the Conference itself. They were printed, together with the questionnaire and the replies of the various governments, in Brown Books, as they were generally called at the Conference." 55 The interested governments did not reply to these Bases. They are quite brief, as compared to the Harvard draft Comments, but they do include the views of delegates before the Conference. As explained in Dr. Guerrero's Report,56 two Protocols, concerning military service and statelessness, were adopted by a two-thirds majority of the votes cast and a Special Protocol by a simple majority. These three Protocols are independent of the Convention, to be opened separately for the signature or accession of states. They
53 By 1946, twelve states were parties to the Convention. On 15 May 1996
Canada denounced it. Since the U.N. Secretary-General became the depositary, nine more states have become parties, either by adherence or succession, the latest being Zimbabwe by succession on 1 December 1998. Status of Multilateral Conventions Deposited with the Secretary-General. (September 2006). 54 League of Nations, Conference for the Codification of International Law. Bases of Discussion, I, Nationality, 1929. VI. Reprinted in 24 Am. J. Int'l .L.
(Spec. Supp.) 215 233 (1930). 55 Supra n. 47, 675.
56
Supra n. 54, 232.
Nationality indicate which of the general and formal clauses of the Convention are applicable to each of them. To this were added eight Recommendations or Voeux which were adopted by the Conference and embodied in its Final Act. In discussing the content of the League Convention, it will be understood in this complete sense. The content of The Hague Convention 1930 The Preamble to the 1930 Nationality Convention shows that its purpose was identical to that of the Harvard draft: "the abolition of all cases both of statelessness and double nationality." In other respects, the Convention differs on many points, apart from its length, thirtyone articles as compared with the draft's twenty-two. Chapter 1, "General Principles," consists of six articles. No definitions are given, as in art. 1 of the draft. Art. 1 of the Convention echoes art. 2 of the draft. Then, whereas the Harvard draft already in its art. 3 introduces thejus soli and thejus sanguinis as the two bases for the acquisition of nationality at birth, the Convention makes no reference to them, except indirectly, to nationality of country of birth in Chapter IV on Nationality of Children. The Harvard draft deals first with the conferment of nationality at birth, then by naturalization, with a view to analysing where nationality legislation may be the cause of double nationality or statelessness, and suggesting solutions. The Convention reflects its origin as the result of negotiations between governmental delegates at the Conference. Thus, art. 3 of the Convention, adopted by 40 votes to 1, provides, "subject to the provisions of the present Convention, a person having two or more nationalities may be regarded as its national by each of the states whose nationality he possesses." Art. 2 of the Harvard draft, in similar wording to art. I of the Convention, contents itself with stating the basic rule that it is for each state to determine who are its nationals. No limit to this "law" is spelt out in the Convention's art. 1, only that it should be consistent "with international conventions, international custom, and the general principles of law generally recognized with regard to nationality." Chapter II of the Convention is entitled "Expatriation Permits," Chapter III "Nationality of Married Women," Chapter IV "Nationality of Children," Chapter V, art. 17 alone, "Adoption" and Chapter
Harvard Research on International Law VI, covering arts. 18 to 3 1, is entitled "General and Final Provisions." This is in contrast to the format of the Harvard draft. Other articles of the Convention may be taken to illustrate how they differ from the Harvard draft. Art. 4 of the Convention: "A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses," a subject of concern already in Dr. Rundstein's Report, is not, strictly, an example of a difference; it simply does not exist in the Harvard draft. In the Basis No. 4, published in Dr. Guerrero's Report, it is clear that there was opposition to the inclusion of this article among the delegates as being, inter alia, beyond the scope of a nationality convention. Nevertheless, the text was adopted by 29 votes to 5. In the Harvard Research, this subject is dealt with in the draft on Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners, arts. 15 and 16. 7 It was undoubtedly wise of the Harvard Research not to include such an article. In Case A118, decided on 6 April 1984 by the Full Tribunal of the Iran-United States Claims Tribunal, the Tribunal rejected Iran's argument based on art. 4 of the Hague Convention of 1930, in that the Convention was 50 years old and much had changed since then, but also the rule was "found in a treaty to which only twenty states are parties. 5 8 The Convention does not deal systematically with naturalization. Art. 6(2) of the Convention was an example, as recorded in Basis No. 6, of a difference of opinion between countries of emigration and immigration, with the result that the principle in art. 13 of the Harvard draft is contained in a Recommendation stating: "V. It is desirable that states should apply the principle that the acquisition of a foreign nationality through naturalization involves the loss of the previous nationality., 59 Art. 7 of the Convention on expatriation permits expressly requires, in paragraph 3, that: "The State whose nationality is acquired by a person to whom an expatriation permit has been issued, shall notify such acquisition to the state which has issued the permit."
57
23 Am. J.Int'IL. (Spec. Supp.) 133 at 135 and 198-202 (1929). Art. 15 of the
Responsibility draft deals with the rule of continuous nationality when a state espouses the claim of a national. Art. 16 states the rule of non-responsibility: "(a) A state is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national." See Chapter 3, infra. 5S5 Iran U.S.C..R. (1984) 251 at 260 261.
59 Guerrero Report, supra n. 54, 222.
Nationality This stipulation was deliberately omitted from art. 13 of the Harvard draft as unpractical and burdensome for many poorer or smaller states. The vast increase in the number of independent states in the last 60 years shows the good sense of this. Many of the provisions in the Harvard draft are missing in the 1930 Convention, such as arts. 17, 18 and 20 of the draft. The General and Final Provisions of the Convention are lengthier, providing as they do for entry into force. Art. 28 provides for denunciation, a type of clause found even in human rights treaties, as art. 31 of the 1984 Torture Convention, 6 0 but not in the Harvard draft. The dispute settlement clause in the Convention, art. 21, compares unfavourably with art. 22 of the draft, because the Convention article, which is lengthy, is not a true compromissory clause, but provides that referral to the Permanent Court of International Justice is only permitted if all (italics added) the parties to the dispute are parties to the Protocol of Signature, to which the Statute of the Permanent Court was 6 annexed. 1 Criticism of the Hague Convention That The Hague Nationality Convention was an incomplete work was recognized by the Recommendations and Voeux adopted by the Conference and embodied in its Final Act. Art. 17 of the Harvard draft provides that the validity of a naturalization certificate may be impeached as between two states, where it was procured fraudulently or in violation of the provisions of a convention to which the naturalizing state is a party. The Comment provides strong support for this from the experience of international claims commissions. This was left to a Recommendation in the Convention, submitted by five
60
1465 U.N.T.S. 85.
61 It
constituted an optional clause for recognition of the compulsory jurisdiction of the Permanent Court and, while the Protocol no longer exists, the term "optional clause" is still used now for art. 36 (2) of the Statute of the International Court of Justice. R. Donner, supra n. 43, 28-30. M.O. Hudson, The Permanent
Court of InternationalJustice, 1920-1942 (1943), 452. Sohn, supra n. 43, 270:
"the nature of arbitration requires that a compromissory clause employing it has to be relatively complex in order to be most effective." He continues that, by contrast when a dispute is submitted to the ICJ or its predecessor the PCIJ or to
another pre-existing tribunal, "the best clauses are the simplest."
Harvard Research on International Law delegations and adopted by 21 votes to 3: "The Conference draws the attention of States to the advisability of examining at a future Conference questions connected with proof of nationality." It would be "highly desirable to determine the legal value of certificates of nationality ... to lay down the conditions for their recognition by and other States. 62 A voeu of the Conference "recommends states to examine whether it would be desirable that, in cases where a person loses his nationality without acquiring another nationality, the State whose nationality he last possessed should be bound to admit him to its territory..." Further, Recommendations VI and VII deal with the nationality of married women. For example, in VI, the Conference recommends to the States the study of the question whether it would not be possible to introduce into their law the principle of the equality 63 of the sexes in matters of nationality. The United States' delegation expressed dissatisfaction with the Convention already during the Conference, and they voted against it in the Plenary Session of 10 April. They did so for a number of reasons. There was on their part strong adherence to the right of expatriation, as expressed by the Chairman of the United States' delegation on 24 March: "For a century past it has been the policy of my country that the right of expatriation is an inherent and natural right of all persons... It is a principle of the rights of man and of the liberty of the human race." This right was not fully endorsed in the Convention or recommendation V, loss of previous nationality on naturalization being subject to conditions required by the law of the first state. Further, recognition of the power of a state to confer nationality by 64 naturalization on non-residents was considered highly unwise. The question of complete equality in the matter of the nationality of married women was also favoured by some and contested by others. The United States' delegation stressed the importance they placed on the interests of children, here the nationality of children, over the principle of the equality of the sexes.65 Manley 0. Hudson calls the Convention "very limited." He refers to the failure to deal adequately with the conflicts arising from the application of the jus
Guerrero Report, supra n. 54, 232. Ibid., 219 and 229 230. 64 Compare art. 14 of the Harvard draft. 65 Miller, supra n. 47, 675-691.
62
63
Nationality soli or thejus sanguinis principles as well as with the conflicts arising in the application of naturalization laws. He is critical also of the articles on expatriation and the treatment of the nationality of married women. He does, however, give praise to the Protocol Relating to Military Obligations in Certain Cases of Double Nationality, adopted by the Conference by 33 votes against 7. This gives predominance to the state of habitual residence as regards dual nationals. He refers to the two Protocols on Statelessness as dealing with relatively inferquent problems. In particular the Special Protocol concerning statelessness, although comparable to art. 20 of the Harvard draft, contains in addition conditions too restrictive to make its provisions very serviceable.6 6 Criticism of the Convention and characterization of it as a failure was widespread. Hudson considered it could be of value if the work was continued.67 Flournoy gave two causes for the failure of the Conference: the strong political bias of the delegates and their unwillingness to make any concessions and, secondly, the lack of time in which to cover such a wide field. 68 Rosenne points, too, to the way in which the members of the Committee of Experts were appointed and the fact that individual experts would be "independent" of their governments was a little understood concept. 69 The shortcomings or failure of The Hague Convention on Nationality, 1930, do not apply to the work of the Harvard Research. The Harvard draft together with Comments are in the nature of preparatory work for the League Codification Conference, and its contents differ considerably. It remains to consider the relevance of the Harvard draft at the present time.
66
M.O. Hudson, The First Conference for the Codification of International Law,
24 Am. J. Int'l L. 447 at 453 (1930). Shortly after this, Hudson criticized the
position taken by the United States Government and in particular the opposition to arts. 8-11, an opposition, he argued, that "tends to ignore the problems with
which they deal." Editorial Comment, The Hague Convention of 1930 and the Nationality of Women, 27 Am. J. Int'l L. 117 at 121-122 (1933). 67 Ibid., 466. 68 R.W. Flournoy, Nationality Convention, Protocols and Recommendations Adopted by the First Conference on the Codification of International Law, 24 Am. J. Int'l L. 467 at 483 (1930). 69 Rosenne, supra n. 44, Vol. 1, ciii.
The Harvard Draft Today

In considering whether the Harvard draft is of value at the present time, nearly eighty years after its preparation, certain topics may illustrate where it is obsolete and where not. But, before this, some general remarks on the situation today in comparison to 1930. Preliminaryobservations The pattern of migration, both at the time the Research was undertaken and for roughly the century prior to it, for the Research relied heavily on the previous practice of states, differs from that of today. At that time, migration took the pattern of emigration from Europe to North, and South, America especially. The move once made was for life, as noted in the Comment to art. 13 of the draft. Now the migrants may be "work migrants," not intending to settle permanently or political migrants hoping to return on a change of government. As for the Harvard draft Convention itself, nothing like it on the subject of nationality, of universal application, has been attempted since it and the League Convention were concluded. There is the European Convention on Nationality, opened for signature on 6 November 1997. 70 This is a regional treaty, referring to earlier Council of Europe conventions on nationality. As stated in the preambular paragraph one: "... the aim of the Council of Europe is to
achieve greater unity between its members." It differs from the Harvard draft in many ways. For example, the definition of nationality in art. 2(a) gives no indication of reference to the standpoint of international law. Art. 4(b) provides that statelessness should be avoided. Not so dual nationality. The provision on multiple nationality takes into account the degree of integration of the Member States, but in the Preamble leaves each State free to decide on the consequences in its internal law. It is admitted that multiple nationality is not fully dealt with. 71 The right of expatriation is recognized in art. 8(1), on two conditions, one mandatory, not to cause statelessness, the other permissive, that expatriation may be conditional on habitual residence abroad. "Habitual residence" is not further defined, although used as a criterion, for example in art. 21 for
70 E.T.S. No. 166. It is accompanied by an Explanatory Report. 71Ibid., para. 13 of the Explanatory Report.
Nationality fulfilment of military obligations by a dual national. It replaced the word "ordinary residence" in the Council of Europe 1963 Convention72 and 1977 Protocol.7 3 The concept is not changed, but it is brought more in line with the French usage.74 Unlike the Harvard draft, art. 4(d) provides for no automatic change of nationality of either spouse on marriage, dissolution of marriage or change of nationality by one of the spouses during marriage. Adherence to the European Convention on Human Rights is now a precondition for membership of the Council of Europe. The International Law Commission's Draft Articles on Nationality of Natural Persons in relation to the Succession of States, with commentaries, 1999,75 is a scholarly work, each article followed by a commentary, as in the Harvard draft. Further, the Harvard draft is expressly quoted in the commentaries on a number of occasions with approval.7 6 But this work of codification is limited to nationality in relation to the subject of succession of states, and, like the Harvard draft, it remains "Draft Articles." No instruments have been concluded under the auspices of the United Nations on the basis of this draft. Nor is there anything comparable to Flournoy and Hudson's Collection of Nationality Laws Contained in Constitutions, Statutes and Treaties. The United Nations Legislative Series, "Laws Concerning Nationality" and its Supplement in the same series, date from 1954. 7 The United States Department of State, Office of Consular Affairs, has compiled a directory providing synopses of the citizenship laws for most of the countries of the world entitled Citizenship Laws of the World ("the Directory") produced prior to 2001. They point out that the accuracy and depth of these country listings varies significantly. But, whereas Flournoy and Hudson dealt with 62 countries, though the British Empire included eleven countries and France ten, that may be compared with the 192 member countries of the United Nations today. The Directory has useful entries under
72 73
74
E.T.S. No. 43. E.T.S. No. 95.

Ibid., para. 125 of the Explanatory Report. Ibid., 24, 25, 41 and 42. U.N. Doc. ST/LEG/SER!B/4 and 9.
71 1999 II I.L.C. Yb., Part Two, 21.

76
77
Harvard Research on International Law headings on the acquisition of citizenship, dual citizenship and loss of citizenship, in the main. It makes clear the lack of uniformity, while certain trends appear.
Dual nationality
One clear trend is that, since 1930, and at the present time, dual nationality is no longer regarded in national and international legal enactments as an "evil" comparable to statelessness. This is to say that States do not now necessarily require renunciation of a nationality on naturalization after birth, or by dual nationals at birth upon their reaching the age of majority. The Directory lists a number of states as now recognizing dual nationality, although the majority still do not. The Irish Nationality and Citizenship Act, 2001, provides for a special case of dual nationality. Section 6(1) provides: "Every person born in the island of Ireland is entitled to be an Irish citizen." Similarly art. 2 of the Irish Constitution. Since the British-Irish Good Friday Agreement, art.I(vi), approved on 22 May 1998, both Governments confirm the right of all the people of Northern Ireland to be Irish or British or both. 78 Nationals of Spain and the Latin American countries have long enjoyed dual national status under internal legislation and agreements. Their number have recently been augmented by the grant of nationality in Spanish law to "people who would be Spaniards had their parents or grandparents not been forced to seek a future elsewhere. 79 Since 1998, Mexicans naturalized in the United States have been able to retain Mexican nationality. 0
78
Information effective as of 30 November 2002. Irish Government Information
Leaflet No. 1. As a result of the Irish Nationality and Citizenship Act 2004, for children born on the island of Ireland on or after 1 January 2005 to qualify for Irish citizenship the parent or parents must fulfil specified requirements of
citizenship or reckonable residence in the island of Ireland. Irish Passport Office, 2004. 79 See M.T. Echazarreta Ferrer, Recent Modifications in the Regulation of Spanish Nationality in VIII Spanish Yearbook of InternationalLaw, 1 at 3ff
(2001-2002).
80
Note, contra, the Latvian Citizenship Law of 22 June 1994, as amended 16 March 1995, 6 February 1997 and 22 June 1998, Section 9(2): "If a Latvian citizen may, in accordance with the laws of a foreign state, be simultaneously considered also a citizen (national) of that state, in legal relations with the Republic of Latvia they shall be considered solely as a Latvian citizen." Text
Nationality However, the Directory states the United States position at page 9: "While recognizing the existence of dual citizenship, the United States Government does not endorse dual citizenship as a matter of policy because of the problems it may cause." Problems caused by dual national status in the law of diplomatic protection and the nationality of claims and, for example, the jurisprudence of the Iran-United States Claims Tribunal on the caveat in Case A11881 are outside the scope of this chapter. But two points may be noted. First, the use and detailed treatment of the criterion of habitual residence, and similar wording, throughout the Harvard draft, as evidence of a genuine link between an individual and a state, serves as a basis for later developments in the definition of the dominant and effective nationality of a dual national. For this, again, the Iran-United States Claims Tribunal has greatly contributed.82 Secondly, the Harvard draft dealt in its art. 17 with the problem of fraud in connection with an individual's procurement of a naturalization certificate. The Comment to this article, as discussed above, states the limits to this rule, of relevance also today for an understanding of the part played by good faith. The "Directory" indicates those countries that provide in their legislation for involuntary loss of nationality for persons who give false information to a naturalization office. Statelessness and human rights The necessity of dealing with the problem of statelessness, unlike that of dual nationality, remains a matter of concern in international relations and public international law. Consequently, the provisions of the Harvard draft could remain relevant, even though the draft deals with the problem as one resulting from the conflict of nationality laws, not of following international conventions and instruments on consolidated by the Translation and Terminology Centre of Latvia. Courtesy of the Latvian Embassy, Helsinki. 81 Most recently, Aryeh (M) v. Iran, 33 Iran-USCTR 368 at 395, paras. 85 and 86. 82 In the Malek case, 19 Iran USCTR 48, the Tribunal found that "the entire life of the claimant, from birth, and all the factors which, during this span of time, evidence the reality and the sincerity of the choice of national allegiance he claims to have made, are relevant."
Harvard Research on International Law human rights. Art. 1(1) of the United Nations Convention on the Reduction of Statelessness 1961,83 that "[a] Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless" echoes Article 9 of the draft, but then continues in greater detail. Art. 8(1) provides that deprivation of nationality must not result in statelessness. This goes further than the Harvard draft. The draft of this Convention, 1954, adds to 8 4 "deprivation" the words "by way of penalty or on any other grounds. Art. 15(1) of the Universal Declaration of Human Rights 1948 introduced a new formula: "Everyone has the right to a nationality." This is repeated in subsequent human rights conventions.8 5 Art. 15(2) then provides: "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality." The first part is new, the second is another way of referring to the right of expatriation, strongly recommended to states in the Harvard draft. Art. 15(1), however, does not provide for an enforceable right against any particular state. H. Weis suggests, in conclusion, "the establishment of an international judicial machinery for the adjudication of conflicts in questions of nationality which could be set in motion by an individual whose nationality is in doubt...,,68 No such body exists. In the United Nations Claims Commission, it is the U.N. Relief and Works Agency for Palestine Refugees (UNWRA) which took responsibility for
83 84
85
U.N. Doc. A/Conf. 9/15. It entered into force in 1975.

U.N. Doc. A/2693, 3-7. Art. 24(3) of the U.N. Covenant on Civil and Political Rights 1966; art. 20 of
the American Convention on Human Rights 1969; art. 7(9) of the U.N. Convention on the Rights of the Child 1989; and art. 5(d)(iii) of the International Convention on the Elimination of Racial Discrimination 1966, with the omission of the word "a." For a critical analysis of this provision, see H.F. van Panhuys,
The Role of Nationality in InternationalLaw (1959), 210 226. Note, too, that
art. 20 of the American Convention on Human Rights has been interpreted by the Inter-American Court of Human Rights as a right not to be rendered stateless for an unlimited period of time in the future. Advisory Opinion of 19 January
1984. No. OC-4/84, reported in 5 H.R.L.J. 161, paras. 46-48, (1984) on Proposed Amendments to the NaturalizationProvisionsof the Constitution of Coast Rica. That statelessness for a period of up to 4 years for foreign wives of Costa Rican nationals may under certain circumstances be the result of Costa Rica's amended legislation and would be brought about by the laws of their country of origin, not by the laws of Costa Rica. See also Donner, supra n. 16, 221 226. 86 Nationalityand Statelessness in International Law (2nd ed. 1979), 155-156.
Nationality submitting consolidated claims on behalf of Palestinians resident in several countries in the Middle East but not possessing their nationality.87 The Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession, of 19 May 2006,88 grants a right to nationality in art. 2 as follows: "Everyone who, at the time of the state succession, had the nationality of the predecessor state and who has or would become stateless as a result of the state succession has the right to the nationality of a state concerned, in accordance with the following articles." In art. 1(b) "State concerned" is defined as "the predecessor state or the successor state, as the case may be." Art. 5(a) places an obligation on the successor state to grant its nationality to those persons, otherwise stateless, who "were habitually resident in the territory which has become the territory of the successor state." Art. 6 places an obligation on the predecessor state not to withdraw its nationality from its nationals who have not acquired the nationality of a successor state and who would otherwise be stateless as a result of the state succession. Art. 17, on dispute settlement, provides: "Any dispute concerning the interpretation or application of this Convention shall primarily be settled by negotiations." State succession is defined as "the replacement of one state by another in the responsibility for the international relations of a territory." The problems dealt with in this Convention are the highly complex and varied ones that have arisen with the division of the Czechoslovak state, the dissolution of Yugoslavia, and the reemergence of the Baltic States as independent states after the demographic changes, especially in Latvia and Estonia, that took place during the half century of annexation by the Soviet Union. They go beyond the Harvard draft, but it, together with Comment in art. 18, could be taken as a starting point. Before leaving this topic of human rights, it may be recorded that United States lawyers, here in the Harvard Research team, are well
87
Decision of the Governing Council of the Commission of 28 November 1991,
revised on 16 March 1992. Reprinted in 31 L.M. 1025 (1992). 8' E.T.S. No. 200. Reprinted in 45 L.M. 793 (2006).
Harvard Research on International Law acquainted with the rights of man, the ten Articles of the Federal Bill of Rights having been proclaimed already on 15 December 1791 .9 Other subjects Other subjects of particular concern when the Harvard draft was drawn up include that of the military obligations owed by a person with dual national status. As proposed in the draft, there is now general agreement that a dual national at birth may choose to carry out his military or other national service in the one country of his nationality where he habitually resides, or, if he resides in a third country, did last reside. The question of the nationality of married women is now not so influenced by the need to avoid dual national status, rather on the contrary the acceptance of dual nationality is particularly relevant for spouses of different nationality. This is reflected in recent legislative enactments of a number of states. 90 The U.N. Convention on the Nationality of Married Women 195791 shows that the principle of equality between spouses has taken precedence over that of the unity of the family, a question that was so hotly contested in 1929-1930, and later. Arts. I and 2 provide for no automatic change of nationality on change of marital status, similar to art. 4(d) of the European Convention of 1997. On the other hand, these also clearly leave room for choice on the part of the wife. So, too, in the U.N. Convention on the Elimination of all Forms of Discrimination against Women 1979,92 art. 9 (1) stresses that marriage shall not "automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.9 3 This, together with the cases that have been based on human rights provisions prohibiting discrimination, is a development beyond the Harvard draft.
'9 Documentary
History of the Constitution II, 321-324 in R.A. Rutland, The
Birth of the Bill ofRights 1776-1791 (revised ed. Boston 1983).

90
In 2004 amended legislation permitting Egyptian women to retain their nationality on marriage was pending in the Egyptian parliament. Personal communication to the writer. 9' U.N.T.S. Vol. 65. Seventy-three states are now parties to the Convention. 309
Status of MultilateralConventions Deposited with the Secretary-General(October 2006).
9'1249 U.N.T.S. 13.

93 of 15 July 2000, 165 states were parties. As
Nationality
Conclusions
When assessing the contribution made by the draft convention on nationality of the Harvard Research certain matters must be kept in mind. That is, the draft from 1929 is clearly out of date in many ways, as too is the League Convention, from which it otherwise differs so much. Migration patterns have changed, there has been some acceptance of the fact that dual national status does and will continue to exist, and the human rights treaties and other instruments have had some effect on the position of individuals regardless of their nationality. In mitigation of this, however, one must remember the limitations the drafters themselves placed upon their work. The Harvard draft excluded consideration of the consequences of nationality, thus excluding not only diplomatic protection, but also such matters as national or fair and equitable treatment in investment disputes, areas where there have been great changes in international law. The Harvard draft was not concerned, either, with the meaning of citizenship in internal law, a subject now of great interest also for political scientists and sociologists. It was a draft convention on the conflict of nationality laws, aiming at a coordination of national enactments. As such, and as the product of leading jurists working independently and wholly unofficially, the draft and comments are undoubtedly still worthy of our close attention at the present day.
Chapter 3
RESPONSIBILITY OF STATES FOR
INJURIES TO FOREIGNERS
James Crawford and Tom Grant Historical Development
Two of the Harvard Drafts, completed in 1929 and 1961, are concerned with the responsibility of States for internationally wrongful acts. In this contribution we seek to place these two texts in their historical context and to assess their influence. Any system of law must address the responsibility of its subjects for breaches of their obligations. For a long time, however, State responsibility was ignored or touched on only incidentally in the doctrine. Writers concerned themselves with substantive fields, such as the law of the sea, the laws of war, diplomatic relations or the law relative to treatment of foreigners. Their main interest was in identifying specific rules associated with each field and, sometimes, in identifying the mechanisms by which States might seek to vindicate their rights against other States. When they treated responsibility at all, writers treated it as an incident of the substantive law, lacking any systematic order or basis. State responsibility was not a discrete subject for study until the late 19th century.
State responsibility in 19th century texts

The major treatises of the first half of the 19th century did not contain any separate treatment of State responsibility. Wheaton's Elements of InternationalLaw (1836) did examine certain problems in terms that are consistent with modern understandings of responsibility, but it did so in connection with specific areas of law-in particular the law of prize. Wheaton had professional experience in that area. As United States representative in Copenhagen, he had negotiated the Treaty of Indemnity by which Denmark made reparation for the capture and condemnation of certain American vessels at
Harvard Research on International Law Kiel during the Napoleonic Wars.' In the first edition of his Elements Wheaton discussed the case in some detail. American vessels had been convoyed with British vessels in the Baltic, a practice a Danish edict of 1810 declared to be a justification for capture. Wheaton set out the rule that the lawfulness of conduct in the light of internal law, such as the Danish edict, did not cure it of unlawfulness under inter2 national law-a central tenet of State responsibility. The distinction between breach of a substantive rule and responsibility for its breach can also be seen from his consideration of another prize case. This had arisen in the High Court of Admiralty in 1675 after a French privateer had come into English territorial waters in possession of a Hamburg merchant vessel. As a neutral State, England was obliged to make restitution of vessels coming within its jurisdiction after being seized by a belligerent. The parties contested whether the privateer and its prize really had been in English waters, i.e., whether there had been a violation of the substantive rule. The judge, Sir Leoline Jenkins, found that the vessels had been "in his Majesty's chambers" and that restitution was required. Wheaton recognized the distinction between the primary rule and the principle of reparation: Whatever doubts there may be as to the extent of the territorial jurisdiction thus asserted as entitled to the neutral immunity, there can be none as to the sense entertained by this eminent civilian as to the right and the duty of the neutral sovereign to make restitution where his territory is violated.3 Yet it was not until the 1850s that a writer would begin to use recognizably modern language of responsibility. It has been said that while Heffier "collected and organized" relevant material, he did not "contribut[e] much to the analysis of the subject" as a distinct field.4 Certainly Heffier did not lay out a comprehensive system of State 1 Claims Convention (USA-Denmark), Copenhagen, 28 March 1830, 80 CTS 463. This became a model for other US indemnity treaties: see Editor's Preface, Elements of InternationalLaw (RH Dana, ed, London, S Low and Son, 1866) viii.
2
Elements of InternationalLaw: with a sketch of the history of the science (London: B Fellowes, 1836) vol II, 260 78 (29). 3 Elements (1836), 141-43 (9: Restitution by the neutral state of property captured within its jurisdiction, or otherwise in violation of its neutrality). 4 Eagleton, Responsibility of States, 19.
Responsibility of States responsibility. But his Le Droit International Public de L'Europe (1857) is notable for its section on "Faits illicites," which not only used terminology which was to become familiar in the context of State responsibility but also foreshadowed some central debates. For example he asked whether certain acts could incur criminal responsibility of the State under international law: his answer was negative but he recognized the importance of the problem. He went on to assert that ... Mais [le droit international] regarde comme fait illicites ou comme l6sions les atteintes port~es sans motifs lgitimes aux droits fondamentaux des personnes par lui sauvegarddes, notamment Aleur libert6, d leur honneur et d leur proprit6. Toute lesion semblable oblige l'auteura la reparer: car les lois de la justice prescrivent que 1'6quilibre social soit rdtablie chaque fois qu'il a 6t6 derange par une iniquit6 quelconque.5 He also discussed obligations owed to the international community as a whole-that is to say, obligations the breach of which might be invoked by any State. He included among these a putative obligation not to attempt world domination ("...une tentative s~rieuse d'6tablir un empire universel sur les mines des Etats particuliers..."), but also the inviolability of diplomats and obligations to suppress piracy and the slave trade.6 Heffter was concerned with the rights of foreigners too: these were extensively treated in Le DroitInternationalPublic de L'Europe, but they did not, so to speak, constitute the field of responsibility. Thus earlier writers had developed the concepts of injurious breach, of attribution to the State and of the duty to make reparation. Nonetheless, before the late 19th century the textbooks hardly treated State responsibility as a topic in its own right.
5 A-G
Heffter, Le DroitInternationalPublic de L 'Europe (Paris, Cotillon, 1857) 203-4 (101) ("Faits illicites") (emphasis added). 6 Heffter, 207 8 ( 104) ("Violations du droit international r~prim~es partout"). 7 The latter, at least, had biblical support. Eagleton cites 24 Leviticus 20, 1
Judges 6-7, and 2 Kings 18, 14: C Eagleton, The Responsibility of States in
InternationalLaw (New York, New York University Press, 1928) 17 n33.
The development of State responsibility as an institution

Treatment of State responsibility as a discrete topic is usually credited to Triepel and Anzilotti, writers active around the turn of the century.8 In Triepel's case, the responsibility of a federal State for the acts of its subordinate territorial units was an influential consideration. The position of the federal State under international law was the subject of his major work, V5lkerrecht und Landesrecht (1899); 9 he also wrote about German federalism in some detail elsewhere.10 V6lkerrecht und Landesrecht presented elements of the modern organization of the topic of responsibility, addressing imputation to the State of the conduct of various entities, including individuals,11 State organs, 12 self-administering public bodies (i.e., public law organizations not part of the State apparatus) 13 and the component units of a federal State.1 4 Triepel's focus on imputability was a marked advance. For a federal State, questions of imputation of the acts of the constituent units to the State invite formulations of principle, independent of the character of the conduct in question: these units are general governments with fiscal and police powers. A constituent unit may engage in conduct with implications at the international level; to hold that the central government was not responsible for its conduct would have produced a marked inequality between federal and unitary States. Elsewhere Triepel was concerned with the distinction between national law and international law. For example, he stressed that certain rules, though significant for the position of the
8
See e.g. EM Borchard, The Diplomatic Protection of Citizens Abroad (1916),
177 n 1; C Eagleton, Responsibility of States, 20; K Strupp, Elkments du Droit International Public (2nd edn, Paris, Editions Internationales, 1930), vol 1, 25; R Ago, "Le ddlit international" (1939/11) 68 Hague Receuil 419. 9 V5lkerrecht und Landesrecht (Leipzig, Hirschfeld Verlag, 1899) 359 ff, 366 ff. Triepel's examination of the application of international law in federal States,
including the United States, was identified by his contemporaries as a distinctive

contribution, e.g., Carl Bilfinger, "Im Memoriam: Heinrich Triepel 1868-1946," (1950151) 13 Za,5RV 1, 6. 10 Triepel, Unitarismus und f5deralismus im Deutschen Reiche (Tflbingen, Mohr, 1907). I Triepel, V6lkerrecht und Landesrecht (Leipzig, Hirschfeld Verlag, 1899),
324-48.
12 Triepel,
13Triepel, 14Triepel,
348 55.
355 59. 359-71.
Responsibility of States State as an international legal person (vilkerrechtbedeutsam), are not themselves rules of international law. 15 He was interested in the distinction between national and international rules but also with the implications one might have for the other. Thus federalism encouraged thinking about responsibility in a more systematic way. Anzilotti, writing in the same period, also saw responsibility as a distinct field. Responsibility for injuries to foreigners was his main concern, but within those limits he identified the principal elements of a modern law of State responsibility. Like Triepel, he stressed the importance of the rules of attribution: La notion de la responsabilit6 internationale implique l'id6e d'un rapport unissant d un tat la violation du droit international. En d'autres termes, il qu'un acte illicite puisse 6tre rapport6 d un ttat, qu'on puisse le faut considdrer comme son acte a lui, le lui imputer.16 The existence of an unlawful act Anzilotti treated as prior to attribution. But that element was not enough. The prevailing idea that attribution of an act to the State is in all or most cases self-evident, plain from the facts, was an error. Attribution was presented as a process of law with its own rules: C'est une caract~ristique de l'imputation juridique que d'etre un pur effet de la r~gle; une volunt6, un acte, sont imputables un sujet donne seulement parce que la r~gle I'Ntablit ainsi. L'imputation juridique se distingue nettement par lIdu rapport de causalit6; un fait est juridiquement propre d un sujet, non parce qu'il a 6t6 produit ou volu par ce demier, dans le sens que ces mots auraient en physiologic ou en psychologie, mais parce qu la rbgle le lui attribue. 7 Anzilotti also addressed rules of exception-especially concerning state of necessity-under which otherwise wrongful acts attributed to One example was the law of imperial succession in the Austro-Hungarian Empire-a rule with international implications but strictly municipal in its basis:
5
Triepel, 273.
16 D
Anzilotti, "La responsabilit6 internationale des ttats d raison des dommages
soufferts par des 6trangers," (1906) 13 RGDIP 285, 285-86 (emphasis in original). 17D Anzilotti, Corso di diritto internazionale, t 1, Parte generale (3rd edn, Rome, Athenaeum, 1928) 228, as quoted by Ago, (1939) 68(11) Hague Rec 491,
450 n 1.
Harvard Research on International Law a State might not attract responsibility;1 8 and he outlined the conesquences of responsibility, in particular, the obligation to make reparation.1 9 Thus Anzilotti and Triepel had come to appreciate State responsibility as a distinct topic, not just an incident of specific substantive areas of law. But it was during the period from 1914-1930 that Anzilotti's and Triepel's appreciation was generalized and more intensive research directed toward State responsibility. Two of the most significant systematisers were Americans, Edwin Borchard of Harvard and Clyde Eagleton of New York University. Both would be involved in the Harvard Research project, Borchard as rapporteur for the work leading to the 1929 Draft. Borchard's 1916 work, The Diplomatic Protection of Citizens Abroad, was the outgrowth of his 1914 PhD thesis of the same title. In the work, Borchard included five chapters on State responsibility. The organization seems to have owed something to Triepel, though the impetus evidently was Borchard's concern with diplomatic protection, which may be distinguished from Triepel's, to relate the internal law of a federal system to the international obligations of the State. Borchard started by addressing State responsibility in general outine, 20 and then examined the topic with reference to each of four categories of conduct that might give rise to responsibility: acts of individuals; 2 1 acts in wartime; 22 breaches of contract, 23 and denial of justice.24 Notable in Borchard's treatment was his alertness to the problem of a one-sided portrayal of responsibility: a law of State responsibility deriving its main incidents from investment protection could all too easily be presented as a law for the investor without regard for other interests. Borchard denies that the State is "a guarantor of the safety of aliens. It is simply bound to provide
8 (1906) 13 RGDIP 285, 303-07.

1 9
20
Ibid, 308-09. EM Borchard, The Diplomatic Protection of Citizens Abroad or the Law of
InternationalClaims (New York, The Banks Law Publishing Co, 1916), 177212. 21 Borchard, 213-45. 22 Ibid, 246 80. 23 Ibid, 281 329. 24 Ibid, 330-43.
Responsibility of States administrative and judicial machinery which would normally protect the alien in his rights. '2 5 Eagleton added to the development of the topic with his treatise, The Responsibility of States in InternationalLaw (1928). He characterized the topic at the same time as central to international law and as only newly formed: States, like individuals, have ever been concerned with their rights rather than their duties. It is nevertheless surprising that so little attention has been given to the subject of the responsibility of states in international law. Only in this century have efforts been made to give it a detached treatment.2 6 Eagleton was clear that State responsibility was not to be explained simply by analogy to municipal law concepts of the liability of individuals. Rather it was a distinct topic of international law, centrally concerned with attribution: The duties, as well as the rights, attendant upon territorial jurisdiction, are stated by international law. As a matter of practical operation, then, the responsibility of the state is to be ascertained from the duties of control within its territorial limits and over its agents laid down for it by positive international law. But while the responsibility of a state is... based upon the control which it exercises within its borders, it does not follow that the state may be held responsible for any injury occurring therein. The law of nations does not make the state a guarantor of life and property. It is answerable, under international law, only for those injuries 27 which can be fastened upon the state itself. The structure of his treatise reflects this focus. Chapter ii defines different classes of responsible persons. Chapter III addresses attribution to the State through its agents; Chapter IV, the acts of individuals, Chapter VI, mobs and insurgents. Chapter V discusses the local remedies rule, relating this in particular to diplomatic protection. Chapter VIII deals with reparation. Only Chapter VII, on contractual claims, including denial of justice, strays into what would later be termed the "primary" or substantive rules of responsibility. Despite the absence of distinct discussion of invocation, countermeasures, or circumstances precluding wrongfulness, Eagleton's
25
26
Ibid, 179.
27
Eagleton, Responsibility of States, vii. Ibid, Responsibility of States, 8.
Harvard Research on International Law work involves a recognizable plan of the topic as it would come to be understood. In doing so it drew on the jurisprudence of the late 19th and early 20th century claims tribunals, whose varying decisions both created a practical need for a developed law of State responsibility and furnished materials for its distillation. At a deeper level the law of responsibility was a reaction against theories of auto-limitation and the emphasis on unfettered notions of State sovereignty. The treatise writers of the 1920s saw State responsibility as against a notion of sovereign supremacy which was the effective negation of external responsibility-the nation-State ultimately responsible only to itself. Rather the emphasis was on State equality as involving subjection to law and respect for the rights of other States. According to Eagleton: This exclusive territorial control, which is a legal possession of the state, logically results in the acceptance by that state of responsibility for illegal acts occurring within the range of its control. If one nation allows to another a monopoly of jurisdiction within the boundaries of the latter, and thereby excludes itself from the possibility of protecting its own
rights therein, this can only be upon the assumption that the latter state
makes itself responsible for all internationally illegal acts committed
within its control against the former state... The exclusive territorial jurisdiction of the state, which is a concomitant of its independence, is the chief source of its responsibility.2 8 The matter was here presented as an implicit bargain: the State's "exclusive territorial control" entailed that the State give something back-namely, responsibility "for all internationally illegal acts committed within its control." In his 1939 Hague lectures, Ago saw the whole field of State responsibility as a system of imputation, derived from the claim of the State to hold a special if not exclusive position as legal actor at the international level: "un fait illicite peut tre imput6 meme i un subjet-personne juridique... But if State responsibility was the result of a bargain between States, it was an unspoken bargain, a jural construction: there is little evidence of undertakings between States seen as giving rise to any generalrelation of responsibility. Moreover the question remains why writers came to consider State responsibility as a discrete topic when
28
Ibid, Responsibility of States, 7, citing to similar effect Hall, International
Law, 11; Hyde, InternationalLaw (vol 1), 266. 29 Ago, "Le ddlit international," 419, 462.
Responsibility of States they did. Eagleton had spent the last years of World War I in Britain (as a Rhodes Scholar at Oxford); he saw first hand the impact of the war on one of the societies severely affected by it. Continental writers would have felt its impact even more strongly. The logic of responsibility as described by Eagleton, Ago and their contemporaries was not just an internal one-States trading exclusive jurisdiction for a tacit promise to accept responsibility for breaches. It may be seen as a response to the ruinous world of the Great War, and a recall of the practice of responsibility as applied in the last decades of the 19th century, from the Alabama arbitration to the Venezuela claims and the two Hague Peace Conferences. Although already immanent in the discipline, the term "responsibility" was given wider circulation by the post-war settlement. 30 The Treaty of Versailles of 28 June 1919 fixed on Germany "responsibility... for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war., 31 Article 231 was a political act of the victors; its legal status was questioned, and not only by German revisionists. No one could doubt the vast "loss and damage" arising from the War, but it was a further step to say that the injuries and costs flowed from Germany's breaches of international obligation, still less that they all did. War had been a feature of European politics for In 1919 the word "responsibility" was not, of course, new. As a legal term it can be traced to the late 18th century. The first use of the word "responsibility" in French dates from around 1783 attributed to the French Finance Minister Necker. Hamilton and Madison used it later in the same decade in the Federalist Papers, referring for example to the "due responsibility in the government to the people" and its relation to the frequency of elections: see J Henriot, "Note sur la date et le sens de l'apparition du mot 'responsabilit6'" (1977) 22 Archives de Philosophie du Droit 59, 60-61. The term derived from the verb repondre, to answer to, and it only acquired a distinct legal connotation-the requirement to answer for a breach of an obligation-in the 19th century. The Versailles Treaty of 1919 nevertheless was a conspicuous use of the word in a context of general political interest. 31 225 CTS 189, 286. Article 231 read as follows: "The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies."
30
Harvard Research on International Law centuries and large financial exactions by the victor after a successful war were not unprecedented: thus Germany had exacted 5 billion gold francs from France in 1871.32 The First Hague Peace Conference proposed a regime to prevent spoliation by occupying armies but contained no bar on indemnities after war. 3 There were calls from various quarters for a moratorium on war indemnity at the end of 34 World War i, but Article 231 was a war indemnity disguised in legal language, one which caused endless trouble in the 1920s until it was effectively abandoned in 1932. 3 ' At the same time it placed issues of responsibility for the major events of international war and peace irrevocably within the domain of the "legal", such that virtually no textbook after 1919 lacked a separate chapter on the subject. The Harvard Research Drafts of 1929 and 1961 and the Codification of State Responsibility The 1929 HarvardResearch Draft in its inter-war context It was in this climate of development and uncertainty that the Harvard Research produced one of the first proposed codifications of State responsibility. The drafters approached the topic with a sense that to codify any field of international law is a difficult exercise in finding common ground among often disparate approaches. The introductory comment to the 1929 Harvard Research Draft pointed out that not in all cases had "existing practice... been accepted by all States." Their text sought to "combine a restatement of the existing law with proposals for moderate changes which seem necessary to secure the 36 acceptance of the convention by all countries., The 1929 drafters also set limits to the project in terms of its substance. In particular, eschewing the Versailles precedent, they Art 2, Treaty of Versailles, 26 February 1871, 143 CTS 38, 40. This was confirmed, and the schedule for payment elaborated, in art 7 of the Treaty of
32
Frankfurt, 10 May 1871: 143 CTS 164, 166. 33Second Hague Convention, arts 49-51, 29 July 1899: 187 CTS 429, 441. 34 E.g., the Social Democratic Party in Germany, which adopted the phrase "no annexations, no indemnities": FL Paxon et al, eds, War Cyclopedia,
(Washington, DC, Government Printing Office, 1918) 196. 35See B Kent, The Spoils of War (Oxford, Clarendon Press, 1989) for a detailed
account of the diplomatic history. 36 EM Borchard, (1929) 23 AJSpec Supp 140.
Responsibility of States made "[n]o attempt ... to deal with the responsibility of a state for injuries to other states" arising out of armed conflict. 37 In this respect the 1929 Draft, like its 1961 successor, was a narrower document than the eventual ILC Articles of 2001. But in other respects it was wider: like the 1961 Draft, it addressed substantive standards of investor protection-an engagement with primary rules which would likewise trouble the ILC in its initial work on State responsibility in the 1950s and early 1960s. 38 Despite its aspirations, the 1929 Draft was modest in scope, with only 18 articles. It had no organizational subheadings. It contained enough to suggest an outline of the topic but not enough to indicate precisely how a fuller codification might proceed. In particular, the text did not answer the question how to relate substantive terms respecting investor protection to the general background rules such as those of attribution. There are hints that the 1929 drafters intended a fuller treatment of substantive rules. For example, article 4 set out a rule requiring that a State maintain a certain level of "governmental organization" (measured by its ability to meet international obligetions). Article 9 specified denial of justice as a wrongful act and set out elements of a definition. The 1929 Draft, by comparison with later texts, is a rather limited document: it could have provided a platform for the investors' rights approach but just as well a platform for the statement of general rules of responsibility in a range of fields. The 1929 Draft was produced with a view to wider international efforts. The League of Nations convened a Conference for the Codification of International Law in The Hague in 1930. Prominent on its ambitious agenda was an examination of State responsibility. Borchard and his colleagues saw the Harvard Research as support for the Conference and as a chance to introduce an American perspective into the League codification project. In its preparation for the Hague Conference, the Secretariat sent questionnaires to governments, some of which responded. Bases of Discussion were adopted on various points and draft texts discussed. Disagreements over content as well as form were, however, unbridgeable; in the end only ten draft articles were put forward and even then
37
3'
Ibid. For the text see (1929) 23 AJSpec Supp 132.
Harvard Research on International Law only in a tentative form. 39 For example, article 2, defining "international obligations," was accompanied by alternate language, without indication of preference; article 5, setting out the rule that municipal law does not insulate a State from international responsibility, contained a proposed deletion-again without a clear indication of the preferred outcome. The ten draft articles were adopted by the Third Committee (the drafting committee) but not by the Conference as a whole. The received view is that the Conference was not a success either in its work on responsibility or more generally. 40 Frangois called it a "failure" because it invited the codification of the substantive rules "as to what constituted fundamental human rights.,, 4 1 Ago stressed that the Conference had "ventur[ed] into the quicksand of aliens' rights. 42 It was even said that the Hague Conference cast doubt on codification generally. 43 It would be more than twenty years before 44 codifiers would return to State responsibility. A new Harvard Research Draft and an early codification attempt by the ILC In the Survey of International Law (1949), which sought to define the subjects suited to codification, the ILC included State responsibility. The 1929 Harvard Research Draft and the Hague Conference draft of 1930 were identified as making a "notable contribution," though still "inconclusive., 45 A further attempt was called for.
39 Text of Articles Adopted in First Reading by the Third Committee of the
Conference for the Codification of International Law: League of Nations publication, V Legal, 1930.V.17 (document C.351(c) M.145(c).1930.V), reprinted in Garcia-Amador, First Report, 20 January 1956, ILC Ybk 1956/11, 173, 225 (A/CN.4/96). 40 See e.g. ILC Ybk 1963/I, 84 (para 55) (Liang). 41ILC Ybk 1957, 162-63 (para 5) (Frangois). 42 ILC Ybk 1969/I, 106 (para 14) (Ago). 43ILC Ybk 1980/I, 268 (para 30) (Torres-Bernrdez). 44 For a balanced assessment of the 1930 Conference see S Rosenne (ed), League of Nations. Committee of Experts for the Progressive Codification of InternationalLaw (Dobbs Ferry, NY, Oceana, 1972) vol 1, ci cii. 45 ILC Programme of work (1949) (Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the ILC Memorandum
Responsibility of States But there was a problem, visible in the 1949 Survey, which was to become clearer and less tractable the more the work proceeded. If codification of State responsibility required a statement of the substantive obligations of States (apart from treaty), it would amount to attempting an international version of the Code Napoleon but in the absence of any emperor. A narrower definition of the material to be covered was required. According to the 1949 Survey the focus should be on injury to the person and property of aliens. Two reasons were given: first, "treatment of aliens and injuries to aliens have constituted in practice the most conspicuous application of the law of responsibility of States"; second, the general principles of State responsibility could be elucidated through a close study of its main arena for application.46 But the decade of decolonization could hardly have been a worse time to attempt a statement of what many governments (Latin American but increasingly Asian and African governments also) perceived as the law of economic domination by capitalexporting countries. As will be seen, the question of a code of investor protection would remain open much longer than the mid-20th century codifiers could have imagined. In 1953 the General Assembly requested the ILC to begin work on State responsibility "as soon as it considers it advisable," implying already a certain reserve. 47 The ILC responded both to the request and the reserve, deciding by majority not yet to appoint a special rapporteur. 48 The ILC's workload was blamed, 49 but there were also doubts as to how far State responsibility was a tractable topic. 50 It was not until its 7th session in 1955 that the ILC decided to begin work.5' FV Garcia Amador, who had already presented a memorandum on the topic, 52 was appointed Special Rapporteur. 53 From 1956-1961, he submitted by the Secretary-General), A/CN.4/1/Rev.1, p 56 (para 97). The Survey was not included in the 1949 ILC Yearbook: ILC Ybk 1949 p v. 46 ILC Programme of work (1949), A/CN.4/1/Rev. 1, 56 (para 97). 47 GA res 799(VIII), 7 December 1953. 48 ILC Ybk 1954/I, 147 (para 15). The vote was 7-3, with 4 abstentions. 49 ILC Ybk 1954/II, 162 (para 74).
50
Cf the exchange between Lauterpacht and Scelle: ILC Ybk 1954/1, 147 (paras
51ILC Ybk 1955/11, 42 (paras 31, 33). 52 A/CN.4/80, noted at ILC Ybk 1954/11162
13 14).
(para 74).
Harvard Research on International Law submitted six reports and produced 27 draft articles.5 4 Other commitments weighed on the Commission at the time, and Garcia Amador and Roberto Ago disagreed sharply as to the outlines of the topic. The former favoured limitation to "civil" responsibility; the latter argued that the topic should include "penal" issues. 55 Stalemate resulted and the first Special Rapporteur's work was discussed only superficially by the ILC. The second Harvard Research drafting project was contemporaneous with Garcia Amador's time as Special Rapporteur. This was not coincidental. In preparing his first report on State responsibility, Garcia Amador visited Harvard to confer with the project directors.5 6 Earlier drafts of the eventual 1961 Harvard Research Draft were noted in the 1959 and 1960 meetings of the ILC.5 7 The Harvard Research rapporteur addressed the Commission, describing progress on the new draft. 58 The possibility was presented for cross-fertilization; the Garcia-Amador draft was influenced by external work more, perhaps, than any other output by an ILC special rapporteur on any topic. In fact, the second Harvard drafting project was instigated by Dr Yuen-li Liang, Secretary to the ILC and Director of the Codification Division. He had had an extensive career as international law advisor to the Government of China, including in connection with China's representation at the Dumbarton Oakes and San Francisco conferences; he had represented China at the 1930 Codification Conference and the Extraordinary Assembly of the League on the Manchurian Question. He had studied at Harvard Law School and
53
ILC Ybk 1955/1 190 (para 2). See First Report, ILC Ybk 1956/11, 173; Second Report, ILC Ybk 1957/11, 104; Third Report, ILC Ybk 1958/11, 47; Fourth Report, ILC Ybk 1959/11, 1; Fifth Report, ILC Ybk 1960/11, 41; Sixth Report , ILC Ybk 1961/11, 1. The 27 draft articles are reprinted at ILC Ybk 1961/II, 46-54, and in FV Garcia-Amador, LB
54
Sohn & RR Baxter, Recent Codification of the Law of State Responsibility for
Injuries to Aliens (Dobbs Ferry, Oceana Publications, 1974) 129. 55 ILC Ybk 1957/1 169-70 (paras 18-22) (Garcia Amador), 170 (paras 23-4) (Ago). 56 Garcia Amador Second Report, ILC Ybk 1956/11 176 (para 14). 57 ILC Ybk 1959/1 147 54; ibid 1960/1 266 70, 276 83, as noted, Sohn and
58 ILC Ybk 1959/1 147-48 (paras 5 13) (Sohn). 59
Baxter, 55 AJ545, 546 n 7.
ILC Ybk 1959/ 147 (paras 2-3) (Liang).
Responsibility of States been a Carnegie teaching fellow there. 60 According to Baxter and Sohn, it was Liang's suggestion that the Harvard Research group revisit State responsibility, with a view to revising the 1929 Draft;6 1 a suggestion apparently made in March 1954.62 Subsequently Liang, as Secretary to the ILC, encouraged the new Harvard Research Draft, referring to the "great assistance" rendered by the Harvard Research to the Hague Codification Conference in 1930.63 The Harvard Research project was "carried on as an autonomous responsibility of the Harvard Law School and at its own expense. 6 4 Since Hudson's retirement from the ILC, Harvard apparently had been seeking ways to continue its link to the Commission.6 5 Under the general direction of Milton Katz, Louis Sohn and Richard Baxter started work on the topic not long after the ILC did. It was decided that the "far-reaching developments" in the field since 1929 required "more than a mere revision" of the earlier Draft.6 6 The new project drew on the advice of key figures in the American international law community, including Herbert Briggs, Quincy Wright, and Philip Jessup. 6 7 But Jessup left for the International Court; Wright was already emeritus, and others such as Clyde Eagleton do not seem to have had an active role.68 The rapporteurs, Sohn and Baxter, did most of the work. The project was undertaken in the spirit of codification in its classic sense. Sohn and Baxter expressed the purpose of the new Draft as "to obviate, as far as possible, the necessity of looking to
60 (1948) 73/II Hague Receui 407.

61 (1961) 62
55 AJ545. Yuen-Li Liang, "Contribution to the Codification by the International Law
Commission of the Law of State Responsibility," (1956) 50 AJ 427. See also (1955) 4 ICLQ 552, "Harvard Programme of Codification in International Law." 63 ILC Ybk 1956/I 228 (para 16) (Liang). 64 (1956) 50 AJ427, 428. See also ILC Ybk 1956/ 1249 (para 27) (Katz). 65 ILC Ybk 1959/ 1147 (para 5) (Sohn). 66 (1961) 55 AJ 545. Katz used the same words, addressing the ILC: ILC Ybk 1956/I 248 (para 26) (Katz). 55 AJ 545, 546 n 6. 68 Eagleton died early in 1958, well before completion of the second Harvard
67 The full list is at (1961)
Research Draft: RR Wilson, "Clyde Eagleton: May 13, 1891 -January 29, 1958," (1958) 52 AJ298.
Harvard Research on International Law customary international law.",69 They were clear as to the matters not covered-State-to-State claims, the violation of treaties, the use of force. They were also clear that the purpose of the project was to codify a particular area of the substantive law: State responsibility, in Sohn and Baxter's view, was a matter of protecting alien investors against wrongful acts by host States. This, in practice, meant protecting aliens who are nationals of the dominant, capital-exporting States, from decisions taken and acts done in the poorer, capital-importing States. As Sohn and Baxter expressed it in their introduction to the 1961 Harvard Research Draft: It is the purpose of the law of State responsibility to extend the protection of international law to those who travel or live abroad and to facilitate social and economic ties between States. No State, regardless of its political or economic philosophy, can remain indifferent to mistreatment of its nationals abroad. In an interdependent world the well-being of many countries rests upon an influx of foreign and managerial skills, the owners of which must be given effective protection against unjust prosecution or discrimination.'y It is true that they aimed to do more than produce a catalogue of the substantive rules of investor protection. As they pointed out, State responsibility arises when several conditions are met: (1) a wrongful act has been done; (2) that act is attributable to a State; and (3) the act has caused an injury to an alien (or another State). But the motivating force behind the project was, avowedly, to establish a comprehensive code of investor protection. The 1961 Harvard Research Draft, 7 a more ambitious undertaking than its predecessor, contained significantly more material than the text of 1929. It began with an introductory section stating general principles. But beyond these general provisions, State responsibility was seen as a system of protection for investors abroad. Section B contained a catalogue of investors' rights, arranged under 11 articles, concerning arrest and detention, access to adjudication, due process rights before courts and tribunals, protection of property from damage or destruction, protection from expropriation, respect for contracts, and preservation of the means of livelihood. The concept of denial of
69 (1961) 55 AJ545, 547.
70
7' LB
(1961) 55 AJ 545. Sohn & RR Baxter, (1961) 55 AJ548.
Responsibility of States justice was set out in considerable detail. These substantive obligations are mirrored by articles on reparation. Eschewing general rules, the 1961 Draft dealt with damages in terms of each wrong it defined-article 5 on arrest and detention corresponding to article 28 on damages for personal injury or deprivation of liberty; articles 6 and 7 on denial of access and denial of due process in courts and tribunals corresponding to article 30 on damages for wrongful acts of tribunals and administrative authorities, and so on. Such an approach is workable only if it is accepted that the substantive rules of investor protection are ripe for codification. This proved to be a major problem in gaining wider support for the 1961 Harvard Draft.
The Influence of the Harvard Research Drafts

As has been seen, the two Harvard Drafts are quite different products, and their influence on the later development of State responsibility is not so much joint as several. They may even be seen as competing for influence-a view that the practice of claims tribunals, in which investor and host State interests have been in particular tension, supports. The Harvard Draft of 1961 was a bold project of progressive legal development. The document is in ex cathedra style; the relation to existing international law of its many formulations of the substantive law of investor protection far from clear. Given the tasknothing less than to codify the law of investor protection-consensus was bound to be elusive. The 1929 Draft, by contrast, was formulated in less specific terms, and was more modest in its aims. Divergence from existing international law, of course, is not fatal to a treaty drafting exercise. By definition progressive development involves departures from what already exists-though the term "progressive" suggests a gradualism that smoothes out the rougher edges of transition. But to propose definite standards on matters already subject to developed and distinctive national approaches, and then to present these in the form of a potential treaty of general application, was a difficult task. A careful distillation of standards with reference to national practice in a representative cross-section of States would attract support from some States. It could be referred to article 38(1)(c) of the Court's Statute, "the general principles of law recognized by civilized nations." The Harvard Drafters of 1961 might have been said to have been aiming in this direction. However, most
Harvard Research on International Law of their attempts to define particular, substantive standards hit a distinctly American mark. The development of the topic after 1961 took place largely in the ILC, so it is to the influence of the Harvard Drafts in that context that we will first turn. Influence on the ILC The ILC's work on State responsibility, started in the 1950s, took half a century to complete. The initial work was to no small extent influenced by the work of the Second Harvard Research project. In form it reflected the prevailing view of how the topic should be approached-a view very much promoted by the 1961 Harvard Draft. The 1959 and 1960 sessions of the ILC saw fairly extensive discussions on the work of the Harvard Research project. Opinions began to solidify as to the content of the project Drafts, and indeed as to the wisdom of the approach adopted. The 1961 text and its precursors (several drafts were circulated by the Harvard researchers before completion of the project in 1961) were correctly described as a mechanism to apply United States standards in the field of investment law to the international setting. It did so not only by setting out substantive standards relative to various aspects of economic law but also by providing a rather detailed dispute settlement mechanism. The view came to be expressed in the ILC that the substantive standards were standards developed in a particular legal tradition, the Draft being a vehicle to import these to the international level. But an instrument for the enforcement of municipal law standards and even of contractual rights through a prescribed dispute settlement apparatus was unlikely to attract widespread support. The Harvard Research rapporteurs recognized the difficulty of reconciling the differing positions manifested in practice. Sohn admitted that "the practice differed so widely that it could only be harmonized by means of a compromise which was virtually a new rule."7 2 But at the height of decolonization, and of the Cold War, enunciating new rules was not likely to attract widespread support. One ILC member rather unkindly called the Draft "a codification of
72
ILC Ybk 1959/ 1147 (para 8) (Sohn).
Responsibility of States United States case law, which in effect extended the right of interven73 tion but failed to take into account the interests of other States.,, The second Harvard Research project was at its most influential at the time when Garcia Amador was preparing his draft articles. At the 512th and 513th meetings of the ILC, on 10- 11 June 1959, the linkage between Garcia Amador's proposals and the Harvard Research was identified, and the problem of transposing substantive rules into a field where different States adhered to very different rules was highlighted by several members. Grigory Tunkin, from the Soviet Union, associated the Harvard Draft and Garcia Amador's proposals and said that problems arising in these texts "were closely connected with the existence in the world of two different economic systems." The Harvard Draft, according to Tunkin, "proceeded... from the principles of the capitalist system of private property expressing practically the point of view of the United States. '74 Ahmed Matine-Daftary (Iran) attributed the ILC's reluctance to engage with Garcia Amador's proposals on the grounds that they were "based on purely European standards of justice. 7 5 Milan Bartog (Yugoslavia) associated the Harvard project and Garcia Amador's draft with colonialism: The Harvard draft and the Special Rapporteur's draft were based on an inequality between the States which had become prosperous through imperialism and those which had recently won their independence and enjoyment of the right to self-determination. It was obvious that upon liberation from colonialism the economic basis of that system had not disappeared all at once. 76 Faris Bey El-Khouri (United Arab Republic) said that the drafting work to date was "reminiscent of the capitulations system applied in the territories of the Ottoman Empire in the nineteenth century, where aliens were almost a privileged class as compared with nationals. 7 7
7, ILC YbkI 1960 282 (para 54) (Barto). 74 ILC Ybk 1959/ 1149 (para 24) (Tunkin). 75 ILC Ybk 1959/ 1149 (para 26) (Erim). 76 ILC Ybk 1959/ 1150 (para 27) (Barto). 77 ILC Ybk 1959/1 151 (para 47) (El-Khouri). It was not always lost on United States courts that non-U.S. publicists objected to "imperialist" overtones in traditional formulations of State responsibility in the context of investor protection: see e.g. Banco Nacional de Cuba v Chase Manhattan Bank (Kearse CJ, 2nd Cir 1981) 658 F.2d 875, 888-89.
Harvard Research on International Law Objection was raised to inclusion of the term "international standards" (in draft articles 3(2) and 1 1(2)(b)); Jaroslav Zourek (Czechoslovakia) asserted that "the notion ... not exist in international did law.",78 As Judge Ammoun would note in his separate opinion in Barcelona Traction, the Harvard drafters at least removed the more offensive expression "civilized," 79 but for some the taint remained. Unsurprisingly, the substantive provisions of the Garcia Amador draft, which were similar in their ambition and, in part, in their content to those of the 1961 Harvard Draft, occasioned the most controversy. Chapter IV of Garcia Amador's draft addressed the breach of acquired rights-expropriation, non-performance of contracts, and default on public debts8 0-in parallel to articles 10-13 of the 1961 Harvard Draft. Both were criticized for their attempt to define the substantive rights of aliens. Alfred Verdross thought that rights of aliens did not fit into the topic at hand. 81 Matine-Daftary said that the entire field of substantive protection for individual aliens belonged, not to State responsibility, but to codification under the rubric of human rights, which was the focus of a long-standing effort in the Commission on Human Rights.8 2 Gilberto Amado (Brazil) "appeal[ed] to the Special Rapporteur to leave aside ... question of human rights. 83 Nihat Erim the (Turkey) thought that the two drafting efforts were intruding into areas beyond their proper province, with unfortunate results: the Rome Convention of 4 November 1950 already had established, amongst fifteen European countries, the right of individual recourse to an international instance for human rights violations, even against the State of nationality, a progressive position that the State responsibility drafters at Harvard had not matched.8 4 On these views the Harvard
78
79 Barcelona Traction, Sep
Op Judge Ammoun, ICJ Rep 1970 p 3, 309 n 47 (para 17). This is one of the few, if not the only, reference to the Harvard Drafts in the opinions of the Court. 80
ILC Ybk 1959/ 1148 (para 17) (Garcia Amador). 1959/ 1150 (para 32) (Verdross). 82 ILC Ybk 1959/1 149 (para 25) (Matine-Daftary). 83 ILC Ybk 1959/1 151 (para 51) (Amado). 84 ILC Ybk 1959/1 149 (para 26) (Erim). Compare Barto , ILC Ybk 1960/1 282
81ILC Ybk
ILC Ybk 1 1960 281 (para 48).
(para 53), who said the Harvard Research Draft was flawed for ignoring limita-
tions in the Universal Declaration of Human Rights.
Responsibility of States Research project, like Garcia Amador, had adopted a fundamentally misconceived approach.8 5 In the following year, Sohn again addressed the ILC, to report on revisions made in the Harvard text in response to comments of the members. The changes were not thorough-going, and the main grounds for objection remained.8 6 It is tempting to dismiss criticisms such as Tunkin's and Zourek's as the product of international political rivalry. Yet critics within the ILC came from a broader constituency, and their criticisms were substantial. There are grounds for doubting the practicality or desirability of a substantive approach to State responsibility, independent of contemporary assessments within the ILC. Successive drafting projects failed to reach a uniform view as to the content of the substantive rules-or even as to which specific points required the formulation of substantive rules in the first place. For example, takings of property under article 10 of the 1961 Harvard Draft were subject to an extensive set of substantive standards, including a definition of indirect takings, rules of valuation, and national treatment standards. While some of this can be seen in the contemporaneous Garcia Amador draft (article 9), the Harvard Draft contains far more by way of specific provisions. Contrasting provisions defining denial of justice provide another example. Article 9 of the 1929 Harvard Draft provided: A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guaranties which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice.
8 Liang-concerned now, it seems, to contain the damage-at the 512th meeting said that he "wished to make it clear that the Harvard draft had been prepared entirely on the responsibility of its authors under the general auspices of the Harvard Law School and that there had been no responsibility on the part of the United Nations Secretariat so far as the financing and the substance of the
draft were concerned": ILC Ybk 1959/1 151 (para 42) (Liang). 86 ILC Ybk 1960/1 266 68 (paras 26 38) (Sohn). Among those reiterating their
critical remarks were Erim, ibid 278-79 (paras 24-25); Tunkin, 281 (40-43); Zourek, 281 (para 47); Bartog, 282 (paras 53-54).
Harvard Research on International Law The 1930 Hague Codification Conference text (also article 9) provided as follows:
International responsibility is incurred by a State if damage is sustained by a foreigner as a result of the fact: (1) That a judicial decision, which is not subject to appeal, is clearly incompatible with the international obligations of the State; (2) That, in a manner incompatible with the said obligations, the foreignner has been hindered by the judicial authorities in the exercise of his right to pursue judicial remedies or has encountered in the proceedings unjustifiable obstacles or delays implying a refusal to do justice. The claim against the State must be lodged not later than two years after the judicial decision has been given, unless it is proved that special reasons exist which justify extension of this period. Apart from the time limit set down in article 9(2) of the 1930 Draft, these provisions were arguably broad and flexible enough to form a basis for discussion. They may be compared with article 3 of Garcia Amador's 1961 draft, which provides as follows: (1) The State is responsible for the injuries caused to an alien by acts or omissions which involve a denial of justice. (2) For the purposes of the foregoing paragraph, a "denial of justice" shall be deemed to occur if the courts deprive the alien of any one of the rights or safeguards in article 1, paragraph 2(c), (d) and (e) of this draft. The cross-referenced paragraphs read as follows: (c) The right to apply to the courts of justice or to the competent organs of the State, by means of remedies and proceedings which offer adequate and effective redress for violations of the aforesaid rights and freedoms; (d) The right to a public hearing, with proper safeguards, by the competent organs of the State, in the substantiation of any criminal charge or in the determination of rights and obligations under civil law; (e) In criminal matters, the right of the accused to be presumed innocent until proved guilty; the right to be informed of the charge made against him in a language which he understands; the right to present his defence personally or to be defended by a counsel of his choice; the right not to be convicted of any punishable offence on account of any act or omission which did not constitute an offence, under national or international law, at the time when it was committed; the right to be tried without delay or to be released.
Responsibility of States In 1966 the International Covenant on Civil and Political Rights would incorporate an array of human rights, including as to trial process. 87 This showed it was possible to specify such rights at the international level. Whether a drafting body, seized of a different topic, could agree on specific rules of due process was another matter: denial of justice was not co-extensive with the whole range of human rights in civil and criminal trials, and it was, of course, confined to trials concerning aliens. In that context, the greater the specificity of the rules, the more one could ask whether they were really rules of general application. And, if the rules as formulated were to accord special protection only to foreign investors, it was most unlikely that broad consensus could be achieved. The denial of justice provisions of the 1961 Harvard Draft-under articles 6 and 7-are even more extensive. Article 6, respecting denial of access to the tribunal, introduces the unhelpful formulation that a denial has occurred when conduct "unreasonably departs from those rules of access to tribunals or administrative authorities which are recognized by the principal legal systems of the world. "Article 7 lists no fewer than eleven elements of a fair hearing. A comparison of texts, from 1929 to 1961, shows that successive drafters were unable to reach anything like a consistent formulation of the substantive rules they were seeking to codify. Agreement was unattainable even on the precise questions to be addressed by the drafts. For example, Garcia Amador's 1961 draft included provisions to define as wrongful acts default on public debts (article 11) and expulsion of aliens (article 5). These were putative substantive rules having no analogues at all in the other drafts. For example the 1961 Harvard Draft article 11 prohibited wrongful "deprivation of [an alien's] means of livelihood," leaving aside the much more pervasive problem of the means of livelihood of the population at large. Such provisions were seen as an attempt, redundant at best, to codify under the rubric of State responsibility for injury to aliens the law of human rights. Thus JPA Franqois criticized Garcia Amador's articles as dealing with matters that "lay outside the scope of the
17
E.g. article 14(3) of the International Covenant on Civil and Political Rights, 16 December 1966: 999 UNTS 172, 176 77.
Harvard Research on International Law draft." The 1930 Hague Codification Conference had been a "failure" for the reason that it had attempted to do the very same thing and, at any rate, "the work that was still continuing on the [UN human rights] covenants" was covering the same ground. 88 The Harvard Research drafters in the 1950s had not "been content merely to lay down the rule that the State was responsible for its wrongful acts under international law; they had, in addition, specified the most important categories of such acts,"8 9 an effort which prevented wider acceptance of the 1961 Draft. The 1961 HarvardResearch Draft as a basis
for development
Yet certain elements of the 1961 Draft were well-considered. The treatment of exhaustion of local remedies may be taken as an example. The 1929 Draft, while including a general provision on exhaustion (article 6),90 also seemed to posit special application of the exhaustion rule varying with the type of breach alleged. A wrongful act by a "higher authority" of the State (article 7(a)), a breach of a contractual obligation by the State (article 8(a)), failure to exercise due diligence to protect an alien (article 10), and acts of individuals, mobs or insurgents (articles 11 and 12) were each said to attract responsibility if local remedies had been exhausted. The 1929 Draft repeated this in each of those five articles. By contrast, the requirement was not articulated in connection with wrongful acts by subordinate officers (article 7(a)), denial of justice (article 9) or wrongful acts by successful revolutionists (article 13(b)). A general freestanding provision would have avoided the confusing possibility that the exhaustion rule applies differentially depending on the characterisation of State conduct under scrutiny. The 1961 Draft was more straightforward: Article 1(2)(a) provided that: "An alien is entitled to present an international claim under this Convention only after he has exhausted the local remedies provided by the State against which the claim is made." This left no doubt as to the unity of the rule-albeit
88
89
ILC Ybk 1957/1 162 63 (paras 4 5) (Franqois). ILC Ybk 1959/1 147 (para 11) (Sohn).
"A state is not ordinarily responsible (under a duty to make reparation to another state) until the local remedies available to the injured alien have been
90
exhausted."
Responsibility of States that it appeared to assume that an international claim belongs to the alien rather than the State of nationality. The 1961 Draft went on to specify the circumstances where remedies are to be considered exhausted and where a claimant is relieved from attempting to exhaust remedies (article 19). The 1929 Draft had included no such specification. The ILC in 2006 took an approach similar to that of the 1961 Harvard Draft, articles 14 and 15 of the Draft Articles on Diplomatic Protection paralleling articles 1(2)(a) and 19 of the 1961 Draft. Both Harvard Research Drafts were cited, in the commentary to the ILC First Reading draft article 22 as evidence of acceptance of the exhaustion rule as one of general international law. 91 The 1929 Draft made no provision for claims to be brought by individuals, but the 1961 Draft did. Section F of the 1961 Draft ("Presentation of Claims by Aliens") proved controversial: Fitzmaurice called it a "major stumbling block" and said that it ignored the treaty basis of international claims.9 2 Verdross criticized it as going beyond existing law and overturning a valid presumption: "[T]he oldestablished principle that international responsibility operated as between States and not as between a State and an individual was not based on an obsolete doctrine; it formed part of the general international law as recognized by ... the International Court of Justice. 9 3 The right of individual recourse to international instances was exceptional and likely to remain so. 94 Ago thought inclusion of the matter in the Harvard Draft "bold. 9 5 It was not, however, without influence. Garcia Amador, if somewhat more modestly, included a provision on individual claims (article 21) under the rubric of Submission of International Claims. But neither the State responsibility draft on First Reading (1996) nor the ILC Articles as finally adopted in 2001 contain individual claims provisions. The 1961 Harvard Draft provisions on individual claims, though a dead end as far as State responsibility drafting was concerned, did hint at developments yet to
Ybk 1977/11(2) 33-34 n 133 (comment 12). ILC Ybk 1960/I 269-70 (paras 52, 54) (Fitzmaurice). 93 ILC Ybk 1960/ 1276 (para 3) (Verdross). 94 See also Ago's remark, ILC Ybk 1960/1 278 (para 21) (Ago), with which Pal agreed: ibid, 280 (para 39). 9 ILC Ybk 1969/ 1105 (para 10) (Ago).
91ILC 92
Harvard Research on International Law come. Direct claims against States by private persons and entities have assumed great significance since the 1960s, in the field of human rights, where they already had gained a foothold, and also in connection with investment protection, where developments such as those under the ICSID Convention were difficult to foresee.96 The 1961 Draft attracted interest from those attempting to set down the substantive rules of investor protection. In 1963 Jim6nez de Ar6chaga, preparing a memorandum concerning the Duty to Compensate for the Nationalization of Foreign Property, examined the 1961 Draft, including its provisions on compensation for damage to property and for expropriation.9 7 The influence of the 1961 Draft in the judicial and arbitral setting would be primarily in that field. The HarvardResearch Drafts and the reconceptualisation of State responsibility If in certain particular provisions the 1961 Harvard Draft broke new ground, the fact remained that its conceptual framework was that of the Harvard drafters and reflected their objectives. The ILC, however, was not setting about to write a comprehensive investment protection treaty. Its immediate task was to define the framework of State responsibility in a way that avoided quicksands and allowed progress toward a broadly acceptable text. In adopting the same approach as the Harvard Draft, Garcia Amador sidelined his work and himself. The new direction to the topic was worked out by Roberto Ago, appointed Special Rapporteur in 1963;98 he would continue in that capacity until 1979, even after his election to the International Court. The period was crucial to the development of the topic. It was in that period that the General Assembly elevated the topic to one of urgency on the ILC's agenda, resolution 2400(XXIII) of 11 December 1968 urging the ILC to "make every effort to begin substantive work" on
Cf ARSIWA art 33(2) (reserving the matter of rights of entities or persons other than States).
96
97 ILC Ybk 1963/11238 (para 3) (Jimenez de Ar6chaga). 98 ILC Ybk 1963/I 86 (para 76).
Responsibility of States State responsibility.9 9 This gave an impetus previously lacking. Even so, it would take another 27 years (and two further special rapporteurs) to produce a complete draft on first reading. New disagreements would emerge (e.g., over the category of criminal responsibility) which accounted in part for the delay. But that is another story. 100 The influence of the approach taken in the 1961 Harvard Research Draft continued to be felt, but now by way of reaction rather than endorsement: it was Ago's task to extract the ILC from the impasse to which that approach had led. In 1963-the session at which he was appointed Special Rapporteur-Ago presented a Working Paper, summarizing how the topic had been approached to date. The main problems with the early focus on the substantive rules of investor protection were set out, and a path for future development defined:
Many of the best known and most penetrating individual or collective studies carried out in the field of international responsibility, and, in general, several of the tentative and draft codifications so far produced on the subject, have dealt with State responsibility only in the limited sector where this responsibility arises out of injury caused in the territory of the State to the person or property of aliens and in the related field of the diplomatic protection of injured aliens by their national State.... 0' Ago then described the various drafting efforts, including the 1929 Harvard Research project and Garcia Amador's reports. A character-
istic fault was the presentation "side by side" of disparate provisions,

99 GA res 2272(XXII) of 1 December 1967 had called on the Commission to
expedite its work; rsns 1686(XVI) of 18 December 1961 and 1902(XVIII) of 18 November 1963 merely to "continue." 100 Ago himself recognized, as soon as he had won the battle to limit the project to a codification of the secondary rules, that even within these new, more rational, limits, it would not be easy: "[T]he Commission would have to study the forms of international responsibility, the relationships between reparation and sanctions and between individual sanctions and collective sanctions, with all the consequences that followed. That was a complicated and difficult task...": ILC Ybk 1969/1 106 (para 18). On the criminal responsibility point, note the concession by Bosnian counsel and the position of the Court: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 170. 0 ILC Ybk 1963/11252.
Harvard Research on International Law such as a provision for national treatment and provisions defining the substantive elements of particular violations. To correct it, a clear understanding was needed of how the fault came to lodge itself in thinking on the subject. According to Ago:
For such a juxtaposition of questions belonging to intrinsically separate categories we should certainly not blame the learned jurists or the institutions... It was the more or less inevitable consequence of the fact that, when the subject matter assigned for study or placed on the agenda was defined, a division was not made 'horizontally' between the rules of substance laying down the international rights and duties of States in the various fields and the aspects and consequences of the violation, by States, of the obligations deriving from these rules; instead, the division was made 'vertically,' the subjects being classified according to sector. This explains why even in a study which was to deal merely with the question of responsibility in relation to a particular sector it became almost inevitable to determine, in addition, the content of the rules of substance whose violation one meant to discuss; this happened particularly in the case of ill-defined and often controversial rules such as those relating precisely to the duties of States regarding the treatment of aliens. As a result, however, the border between two distinct fields of law tended inevitably to become somewhat blurred. A more precise definition of the duties imposed by international law on States regarding the treatment of aliens is no doubt a most important objective; but whoever wishes to attain this objective ought to proceed by a direct route, not by a circuitous one, in connexion with the determination of rules relating to international responsibility for wrongful acts. Also, a partial study, undertaken by sectors, of problems of responsibility cannot provide a true view of the whole of the subject. The international responsibility of the State is a situation resulting not only from the violation of particular international obligations, but from the infringement of any international obligation, whether established by rules covering a specific matter or by other rules. To achieve such a general view, complete and at the same time free of all extraneous matter, appears to be the 0 2 indispensable condition for any effort to codification in this field. useful It was natural enough to conceive of the relevant material as a series of "sectors" in international law, each corresponding to a particular,
established substantive field-investor protection simply being the one drawing the most attention at the time. But such a "substantive" approach was effective neither as a way to produce a codification of
102 ILC Ybk 1963/11252-53.
Responsibility of States State responsibility at meaningful breadth, nor as a way to agree the rules of investor protection. The existing approach risked a double failure. Subsequent discussions in the ILC show opinion taking hold in favour of the shift that Ago advocated. Opinion crystallized in favour of the shift in the 1967 session. According to Arnold Tammes (Netherlands): the Sub-Committee on State responsibility had taken an important step in deciding unanimously on a new approach to the topic-that of separating the elements of the illegal act and its consequences from the substantive rules, violation of which made an act illegal. It was true that much might be learned about the existence of a rule from international reactions to the violation of an alleged rule, and a study of the mass of existing material on disputes concerning such rules would undoubtedly be useful. Nevertheless, it would be a considerable advantage for the Commission not to be hampered in its future work on State responsibility by being obliged first to formulate substantive rules on such matters as nationalization and Charter principles, or, in its practical work of codifycation, by having to await the completion of work on state responsibility in the widest 103 sense, which might be regarded as the keystone of international law.
At the next meeting, the "new approach" was ratified, the Commission endorsing the general outline of Ago's 1963 working paper.10 4 The 'vertical' division, which had resulted in preoccupation with the one sector of investor protection, was replaced with a sweeping "horizontal" approach. The primary rules of international law whose breach gave rise to responsibility were to be separated from the secondary rules. The latter, it was hoped, could be expressed as a single system of State responsibility, applicable to any sector of international law. 10 5 In Ago's words, the path was open to codifying 1 6 0
"the whole of responsibility and nothing but responsibility.'
This was at the 934th meeting, 6 July 1967: ILC Ybk 1967/I 225 (para 77) (Tammes). 104 935th meeting, 6 July 1967: ILC Ybk 1967/ 1228 (para 14). 105 The notion of 'vertical' and 'horizontal' divisions, and the sectors into which these might divide international law, Ago described in more detail later: ILC Ybk 1969/1240-A1 (paras 16 17). 106 ILC Ybk 1969/ 1106 (para 18) (Ago).
103
Harvard Research on International Law As far as drafting strategy was concerned, this meant removing from consideration questions of the substance of the rules of investor 17 0 protection, a point immediately grasped by Gros, among others. Most of the 1961 Harvard Research Draft would thereby be rendered irrelevant to the purposes of the ILC's work. Also superseded would be those provisions (articles 28-35) setting out standards of reparation for breaches in connection with each substantive rule. Instead a single general standard would be formulated. Ago's reformulation of the question of State responsibility as one of secondary rules did not appear only in the aftermath of the false start of Garcia Amador. The framework Ago introduced to the ILC may be perceived in outline in his own earlier writings, including before 1939. From the mid-1950s if not earlier, the so-called "secondary" rules were recognized by others too as the core of State responsibility. Ago's Hague lectures of 1939 had foreshadowed this approach. Ago argued that substantive rules depend on the applicable standards which in the interstate system are contingent and variable-thus the content of the category "delict" is relative. An act is lawful or not only by reference to "a given juridical order" ("un ordre juridique donn").10 8 "La notion pr~liminaire que nos venons d'6tablir par rapport d la nature juridique du tort n'exige que peu de pr6cisions 0 ult6rieures." 1 9 Responsibility involved a combination of unlawful0 ness and attribution, 11 referred to as "objective" and "subjective" elements: Une analyse de la notion de ddlit international plus approfondie que celle qu'on a pu accomplir jusqu'ici permet aisdment de ddcouvrir dans cette notion, tout comme d'ailleurs dans celle du fait illicite du droit 6tatique, la presence de deux elements: un 616ment objectif, normalement repr6sent par une action ou une omission, en un mot par une certaine conduite ; et un 616ment subjectif, r~sultant de l'imputabilit6 de cette conduite d un sujet de droit. L'616ment objectif du fait illicite est donc en
107 ILC Ybk

108
1963/11 230.
(1939) 68(11) HagRec 419, 423 24. 109 (1939) 68(11) Hag Rec 419, 427. 110He referred to this as a "unity" between illicitness and attribution: (1939)
68(II)HagRec 419, 532 33.
Responsibility of States tout premier lieu une conduite, une action ou une omission, qui se v~rifie dans le monde ext~rieur.' The "objective" element-the breach of some substantive rule-was distinct from imputation-a "subjective" element. Other members of the ILC shared Ago's view. Franqois, for example, said in 1957 that State responsibility could not be defined as the substantive rules of investor protection: The substance of such obligations, however, was... a matter that lay outside the scope of the draft, which was concerned rather with the question: given certain obligations, in what cases was the State responsible in
the event of their breach or non-observance?" 12
Uncertainty as to the scope of State responsibility as an ILC topic nevertheless persisted into the early 1960s. In the 1963 discussions of the Commission, Jimenez de Arechaga insisted that "in the codification of such a topic as State responsibility priority should be given to the field in which most of State practice had arisen, namely that of the responsibility of the State towards aliens."'1 13 Briggs was in broad agreement, saying that Ago's tentative reformulation "somewhat artificially stressed the distinction between the international law 1of State responsibility and the law relating to the treatment of aliens." 14 These views did not prevail. Paradoxically it was by excluding the codification of an extensive array of substantive rules that the ILC finally could produce a text that reflected the broadest scope of the topic. What some saw as a contraction was both a re-definition allowing extension of the topic to its proper limits and a way out of the impasse over the content of the rules of investment protection. The two Harvard Drafts have to be taken separately if their influence on the shift in approach is to be assessed. The influence of the 1961 Draft was largely negative, as we have seen. That of the 1929 Draft is more difficult to evaluate. It is by no means clear that Ago thought the earlier Harvard Draft significantly closer to the right approach than the later. He said that Borchard had "mixed together" different problems relative to the substantive rules of investor protec... (1939) 68(11) HagRec 419, 440. 112 ILC Ybk 1957/1 162 (para 4) (Franqois).
1 ILC Ybk 1963/II 231 (Jimenez de Arechaga). " l1 ILC Ybk 1963/II 231, 232 (Briggs).
Harvard Research on International Law tion. 1 5 The idea, set out in article 6 of the 1929 Draft, that responsibility would apply differently as between superior and subordinate organs of a State was rejected. It was pointed out in the commentary to ILC draft article 6 that the distinction, as espoused in articles 7 and 8 of the 1929 Harvard Draft, was not supported in 16 claims practice--or 1 mirrored in any of the other early drafting efforts. But if the concept behind the 1961 Draft-State responsibility as investor protection-had to be put aside, the 1929 Draft, with its more open texture, might be said to have pointed the way to the approach eventually taken by the ILC. Containing a less definitive framework than the 1961 Draft, it avoided category mistakes. Perhaps the virtues of the 1929 Draft lay, then, more in what it did not do than in what it did. In particular it did not attempt to set down the terms of a global investors' rights treaty. Above all, and alongside the preparatory work for the 1930 Conference, it was the beginning of serious work on State responsibility. The HarvardResearch Drafts and the 2001 Articles As the influence of the Harvard projects was traceable through the ILC process, so too is that influence visible in the eventual product, the ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (hereafter ARSIWA). 117 It is beyond the scope of a single chapter to relate the two Harvard Drafts to ARSIWA, but some observations may be made. A number of formulations in the Harvard Drafts were narrower and more specific than those finally adopted by the ILC in 2001. Those relating to nationality of claims and interest calculations are two examples. Article 38 of the 1961 Harvard Draft was specific as to the dates from and to which interest is to be calculated. The award itself, in the 1961 formulation, is to include interest, calculated on the sum of damages from the date of injury to the date of award; interest is also
115 ILC Ybk 1969/ 1105 (para 10) (Ago).
116
ILC Ybk 1973/11197.
117 The Articles on Responsibility of States for Internationally Wrongful Acts
were adopted by the ILC on 14 August 2001 and annexed to GA Resolution 56/83, 12 December 2001. They are reprinted in J Crawford (ed), The ILC's Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, CUP, 2002).
Responsibility of States due on the amount of the award itself from the date it is adopted to the date it is paid. The interest rate is that applicable at the time of the award "in the place in which the injured alien was habitually resident at the time of the injury." Article 38 of ARSIWA, by contrast, provides as follows: (1) Interest on any principal sum due under this Chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result. (2) Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled. Instead of requiring that interest be added to the award for a certain period (date of injury to date of award), article 38(1) requires that interest be added "when necessary in order to ensure full reparation." It is also more open in its definition of the interest rate: rather than pegging the rate to that in the claimant's place of residence, it refers back to the same standard as that governing whether the principal sum should include interest in the first place, i.e. the standard of "full reparation." It follows the 1961 Harvard provision more closely on the second question, that of post-award interest. But it leaves more room for the application of particular rules, since interest runs from the date "when the principal sum should have been paid...,,1 18 The 1961 Harvard Draft contains extensive provisions relative to nationality of claims. Grouped under Sections F and G ("Presentation of Claims by Aliens" and "Espousal and Presentation of Claims by States"), these include a detailed definition of nationality (article 21(3)), limitations on claims by corporations controlled by nationals of the respondent State (article 22(7)), a rule on succession of rights upon death of a claimant (article 23(5)), and stipulations respecting the timing of acquisition or loss or nationality (e.g., articles 22(8), 23(7)). Article 23(3) of the 1961 Draft sets down as a requirement for espousal of a person's claim by a State that the person have a "genuine connection of sentiment, residence, or other interests" with the State. The 1929 Harvard Draft, though less detailed in its nationality provisions than the 1961 Draft, nonetheless includes paragraphs on nationality of claims (see article 15(b) (loss of nationality), 16(a) (na118 The 1929 Draft said nothing about interest payments. Borchard noted the "absence of any settled rule on the question": DiplomaticProtection, 428.
Harvard Research on International Law tionality requirement generally), 19 16(b) (nationality of corporations), and 16(c) (unilateral conferral of nationality)). The problem with such provisions is not that they might get the rules wrong but that the formulation of rules at such a level of specificity is bound to give rise to disagreement over their status as applicable rules. The approach to nationality of claims in ARSIWA illustrates the contrast. ARSIWA article 44 (admissibility of claims) provides that: [t]he responsibility of a State may not be invoked if: (a) The claim is not brought in accordance with any applicable rule relating to the nationality of claims. The formulation "any applicable rule relating to the nationality of claims" avoids suggesting that a single international rule of general application exists on a matter which so far has been subject to diverse positions. An evolution also may be observed on the important matter of attribution to the State of conduct done by its officials outside the scope of their authority. The 1929 Draft did not deal with the issue, at least expressly. 120 Article 15 of the 1961 Draft included as attributable to the State acts of officials under "apparent authority," a use of the common law terminology of agency which the ILC always avoided. The position finally adopted by the ILC was broader still: ARSIWA article 7 provides expressly for attribution, even where an official person or organ "exceeds ... authority or contravenes instructions. '121
119
A prudent precaution by the 1929 Harvard drafters here was that they did not
specify a critical timeframe for nationality. By contrast, Garcia Amador and the 1961 drafters did. 120 ILC commentary to draft article 10 (Attribution to the State of conduct of See organs acting outside their competence or contrary to instructions concerning
their activity) ILC Ybk 1975/11 66 (item 16), calling the position under the 1929
Draft "not entirely clear." 121 This was to skip the halfway house proposed in the Garcia Amador draft, article 12(3) of which excluded from attribution an act which was "by its nature totally outside the scope of [officials'] functions and powers" and article 12(4)
of which excluded an act which was "so manifestly outside the competence of the organ or official concerned that the alien should have been aware [that it was
ultra vires]." The eventual ILC position has been relied on by tribunals: see e.g.
Metalclad Corp. v United Mexican States, Case No. ARB(AF)/97/1, Award of 30 August 2000 (Lauterpacht, President; Civiletti and Siqueiros, Members) 5 ICSID Rep 212, 226 (para 73).
Responsibility of States ARSIWA also develops attribution in other directions-providing, for example, that conduct of persons or entities under the "direction or control" of a State is attributable to that State. 1 22 The word "employees," in article 7 of the 1929 Harvard Research Draft and "employee" in article 16(2) of the 1961 Draft was infelicitous, linking attribution with questions of municipal law and allowing for evasion: the 1 23 terminology of "direction and control" is clearly preferable. The 1929 Harvard Research Draft, article 14, provided that responsibility is not presumed to be attracted to a State for acts done on its territory which are attributable to another State. This is of course correct, as Ago noted; 124 indeed in the first reading text of the ILC Articles there were a number of such "negative attribution" clauses. All of these were swept away on second reading, on the ground that it is only were conduct is attributable to a State that any issue of responsibility arises. The two Harvard Research Drafts were among the first to introduce a distinction between failed and successful revolutions. This was noted in the commentary to ILC Articles 10-15 as adopted on first reading.1 25 Article 13 of the 1929 Draft provided as follows: (a) In the event of an unsuccessful revolution, a state is not responsible when an injury to an alien results from an act of the revolutionists committed after their recognition as belligerents either by itself or by the state of which the alien is a national. (b) In the event of a successful revolution, the state whose government is established thereby is responsible under Article 7, if an injury to an alien has resulted from a wrongful act or omission of the revolutionists committed at any time after the inception of the revolution. Article 18(2) of the 1961 Draft similarly provided for non-attribution in the situation of a failed revolt; article 18(1) for attribution in cases where the revolution results in a new government. Ago thought the article 18 formulation particularly apt. 126 The ILC text of 1996 was ARSIWA articles 8. assumed that "employee" meant either an organ of a State or an entity formally authorized to act for the State: ILC Ybk 1975/1 15 (para 49) (ElErian). 124 ILC Ybk 1975/1 42-43 (para 5). 125ILC Ybk 1975/II 98 (comment 27). 121 ILC Ybk 1975/I 63 (para 8) (Ago).
122 123 El-Erian
Harvard Research on International Law not so explicit but nevertheless preserved the distinction. Draft article 15 provided for attribution to the State of conduct by an insurrectional movement which becomes the government of the State (or establishes a new State on the former's territory). Draft article 14 in contrast provided that the conduct of an "organ" of an insurrectional movement which "is established in the territory of a State or in any other territory under its administration" will not be attributed to the State. This provides for the case in which an insurrection has, as yet, neither failed nor succeeded. ARSIWA omitted the negative attribution clause, but article 10 adopts the well-established position that the conduct of organs of a successful insurrection is to be attributed to the State in question. ARSIWA modifies the earlier position as concerns de facto authorities (traceable from the 1929 Harvard Research Draft through ILC first reading draft articles 14 and 15). Under ARSIWA article 9: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for
the exercise of those elements of authority.
This may be compared with Ago's draft article 12, presented in 1975 but eventually modified: it would have provided that "the conduct of an insurrectional movement directed against the State and possessing separate international personality shall not be considered as an act of the State under international law."'127 This wording made a tacit distinction between conduct "directed against the State"-i.e., conduct inseparable from the revolutionary effort-and other conduct. The latter category would involve conduct by opposition organs aimed not at undermining the State but at supplying the incidents of government necessary to sustain public order in default of government authority. But in fact recognition of "separate international personality" of insurrectional movements is extremely rare; a distinction between the two kinds of conduct cannot be based on considerations relating to legal personality. 128 ARSIWA article 9 addresses the
ILC Ybk 1975/1 42 (para 1).
127
121 Similar considerations apply to the expression "recognition as belligerents,"
used in article 13(a) of the 1929 Harvard Research Draft. For the desuetude of
Responsibility of States problem by referring to the question whether the conduct iscarried out by a person or group "in fact exercising elements of the governmental authority." 129 This ignores questions of formal status, calling instead for examination of the actual conduct and capacities of the person or group in question. ARSIWA presents a series of articles containing exceptions to responsibility under a single chapter (Chapter V), entitled "Circumstances Precluding Wrongfulness." The exceptions are set out sequentially: consent (article 20), self-defense (article 21), countermeasures (article 22), and so on. This is in contrast to the somewhat awkward structure given in the 1961 Harvard Research Draft to "Sufficiency of Justification," which is placed at the beginning of Section B, otherwise concerned with definitions of wrongful acts and omissions. Article 3 of the 1961 Draft describes categories of wrongful acts and omissions; under which in paragraph 1, the operative provision on exceptions is included as a subordinate clause: 1.An act or omission which is attributable to a State and causes an injury to an alien is 'wrongful,' as the term is used in this Convention: (a) if, without sufficient justification, it is intended to cause, or to
facilitate the causing of, injury;
(b) if, without sufficient justification, it creates an unreasonable risk of injury through a failure to exercise due care... Then, by way of cross-reference, the clause "without sufficient justification" is explained in article 4. The specific instances include imposition of a criminal sentence fairly arrived at (article 4(1)), measures taken under "actual necessity of maintaining public order, health or morality" (article 4(2)), exercise of belligerent or neutral rights (article 4(3)), and contributory fault (article 4(4)). The final paragraph of article 4 sets out a residual category: "circumstances ... recognized by the principal legal systems of the world as constituting such justification," a category which presents an issue but offers no assistance in recognition of belligerency see J Crawford, The Creation of States in InternationalLaw (2nd edn, OUP, 2006) 380-2.
129
Cf art 8(a) of the 1996 ILC Draft, which would have provided for attribution to the State of conduct done by a person or entity "in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority."
Harvard Research on International Law resolving it. The problems in the ensuing comparative law exercise were duly noted by members of the ILC, when presented earlier drafts of the 1961 Harvard project. The structure adopted in ARSIWA-a separate exceptions chapter-arguably has better organizational logic, and the specific provisions adopted under that title as precluding wrongfulness comprehend cases-such as force majeure and distress-surprisingly not found in the 1961 Draft. A number of developments ultimately reflected in the ILC's work either came after the 1961 Harvard Draft, or were at the time of its drafting still insufficiently formed for the Harvard Draft to take account of them. This was the case in particular, with respect to rules articulated under the Vienna Convention on the Law of Treaties of 1969.130 Two concepts in the Vienna Convention with special bearing on State responsibility were multilateral obligations and peremptory norms-matters on which the Harvard Research was silent but which 13 1 are expressly addressed in 2001 Articles. These differences largely reflect subsequent developments, and their absence from the 1961 Draft therefore should not necessarily be seen as a defect. Yet it would miss a wider point about the 1961 Draft, to ignore that the conceptual framework adopted by the Harvard project was an investors' rights framework, not readily adaptable to matters arising mainly in State-to-State relations. It was by contrast to that framework that the International Court in Barcelona Traction acknowledged the existence of obligations to the international 1 community. 32
130
1155 UNTS 331, 341: signed 23 May 1969, entered into force 27 January
1980. "' See ARSIWA Arts 40, 41, 48 and the discussion in J Crawford, "Multilateral Rights and Obligations in International Law," (2007) 318 Hague Receuil 9. 132 ICJ Reports 1970 p 3, 31 (para 33), and see Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 149:
The jurisdiction of the Court is founded on Article IX of the Convention, and the disputes subject to that jurisdiction are those 'relating to the interpretation, application or fulfilment' of the Convention, but it does not follow that the Convention stands alone. In order to determine whether the Respondent breached its obligation under the Convention, as claimed by the Applicant, and, if a breach was committed, to determine its legal consequences, the Court will have recourse not only to the
Responsibility of States Influence of the HarvardResearch Drafts in courts and tribunals As has been seen, the path to completing the draft articles on State responsibility was opened by the decision to exclude from the topic the substantive rules of investor protection. In many, probably most, of the instances in which courts and tribunals have referred to the Harvard Drafts, they have done so in search of support for one or another position concerning investor protection. What prevented their acceptance as a possible approach to-still less a definitive statement of-the law of State responsibility gave the Harvard Drafts an afterlife in the case-law. There is no paradox here, for a great body of claims practice has concerned investor protection and parties and decision-makers have inevitably have sought evidence to support (or refute) various positions by reference to earlier work in that field. The Harvard Drafts, especially the 1961 Draft, are a repository of formulations of rules of investor protection and, as such, a natural point of reference. Article 10 of the 1961 Harvard Research Draft-dealing with expropriation-is the most frequently cited in international claims practice. This is not surprising, given the frequency with which expropriation claims arise in the investment context. Thus a NAFTA tribunal in Pope & Talbot v Canada referred to article 10(3) of the 1961 Draft: While it may sometimes be uncertain whether a particular interference with business activities amounts to an expropriation, the test is whether that interference is sufficiently restrictive to support a conclusion that the property has been "taken" from the owner. Thus, the Harvard Draft defines the standard as requiring interference that would 'justify an inference that the owner... will not be able to use, enjoy, or dispose of
the property..."' 33
In Wena Hotels v Arab Republic of Egypt, article 10(3)(a) was cited for the proposition that the State interference in question is a
Convention itself, but also to the rules of general international law on treaty interpretation and on responsibility of States for internationally wrongful acts. 133 Pope & Talbot v Canada, Interim Award, June 26, 2000 (Lord Dervaid, President; Greenberg and Belman, Members), 7 ICSID Reps 43, 86-87 (para 102).
Harvard Research on International Law taking if it may be inferred that it would have deprived the claimant of his property "within a reasonable period of time after the inception of such interference. 134 The tribunal in its Partial Award in Saluka Investments BV v The Czech Republic undertook a fairly detailed examination of article 10, referring to paragraph 5 of the article for its 135 statement of grounds on which a taking is non-compensable. On other questions of the substance of investor protection the Harvard Drafts have been referred to. The arbitrators in Loewen Group, Inc v United States referred to the 1929 Draft on the matter of discriminatory violations of municipal law.1 36 The tribunal in UPS v Canada rejected the claimant's position that there exists an international law rule requiring regulation of anti-competitive practices, noting that no such rule was provided in the 1961 Harvard Research Draft-which the tribunal said was "still to be seen as something of a high water mark in the statement of the law for the protection of aliens, particularly their property and other economic rights and interests."137 United States courts have occasionally referred to the 1961 Draft, again especially to support particular positions relative to expropriation. For example a US district court, in the case leading to the well134 Wena Hotels v Arab Republic of Egypt, Award of 8 December 2000 (Leigh, President; Fadlallah and Wallace, Members), 6 ICSID Reps 89, 119 n 242 (para 99). See also Tokios Tokels v Ukraine, Decision on Jurisdiction (Weil, President; Bernardini and Price, Members) 11 ICSID Rep 313, 336 (para 92), citing same provision of the 1961 Draft. 135 Saluka Investments BV v The Czech Republic, Partial Award (Watts, Chairman; Fortier and Behrens, Members), paras 256 258. 136 Loewen Group, Inc. v United States, ICSID ARB(AF)198/3, 26 June 2003 (Mason, President; Mikva and Lord Mustill, Members)), 7 ICSID Rep 442, 467 (para 135). Article 9 of the 1929 Harvard Research Draft read as follows:
137
A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guaranties which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice. United Parcel Service of America v Canada, 22 November 2002 (Keith,
President; Cass and Fortier, Members), Award on Jurisdiction, 7 ICSID Rep

285, 308 09 (paras 88 91).
Responsibility of States known Supreme Court decision in Banco Nacionale de Cuba v Sabbatino, cited the freshly-drafted Harvard Research articles when reaching the decision that "the nationalization measure in the present action violates international law because it does not provide adequate compensation for the taking of the properties.,, 138 The Second Circuit, in the appeal from the district court, also mentioned the Harvard Research Draft of 1961-though for the rather general proposition that State sovereignty is not an absolute protection against external scrutiny of a State's conduct.1 39 The Supreme Court, which on certiorari reversed on grounds of act of State, made no mention of the Draft.140 Discriminatory breach of contract was an issue in a Second Circuit case in 1987.141 The 1961 Harvard Draft was referred to by a US district court in 1997 for guidance as142 the point in time when to State conduct ripens into an expropriation. More surprisingly, perhaps, the European Court of Human Rights in James v United Kingdom (1984) referred to article 10 of the 1961 Harvard Draft in connection with the question of what constitutes a permissible public purpose for purposes of a taking. The Court said: The concept of a public purpose in this area of international law thus appears broader than the applicants suggest. This is conveniently illustrated by the Explanatory Note to Art. 10 of the 1961 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens..., which includes the following passage: "...Within municipal legal systems the significance of a public purpose varies greatly, and in many countries the term has never been defined with any precision. Even in the economically and politically most conservative countries of the world, recognition is given to the public purpose served by compulsory acquisition of property by the State for transfer to another private person
138 Banco Nacionale de Cuba v Sabbatino (Dimock DJ 1961) 193 F.Supp. 375,
385 n 26. 139 Banco Nacional de Cuba v Sabbatino (Waterman, CJ, 2nd Cir 1962) 307
F.2d 845, 859-60. 140 376 U.S. 398, 428-30 (Harlan J, 1964).
141Banco Nacional de Cuba v ChemicalBank New York Trust Co. et al (Kearse, CJ, 2nd Cir 1987) 822 F.2d 230, 238. 142 McKesson Corp v Islamic Republic of Iran, 23 June 1997, 12 (DC DC, Flannery DJ, Memorandum Opinion, unreported, No. CIV.A. 82-220 TAF).

who is regarded as being able to make a socially more productive use of the property than its former owner... "'143 Reliance on the 1961 Harvard Draft as protective of the State's right might have surprised members of the ILC, for whom the Draft was overly protective of the western investor. Consistent with the view that the 1961 Harvard Research Draft favoured the foreign investor, the American members of the IranUnited States Claims Tribunal have referred to the Draft with some frequency. It was relied upon in particular in reference to its provisions defining the wrongful act of expropriation. In Starrett Housing Corp v Islamic Republic of Iran, Judge Holtzmann referred to article 10(3)(a) for the (uncontroversial) proposition that: [it] is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the State does not purport to have expropriated them and the legal title to the property formally remains with the original owner. 144 A similar point arose in ITT Industries where Judge Aldrich (concurring) noted that an expropriation does not depend on the exact form of measure taken by the State, provided "the owner was deprived of fundamental rights of ownership and it appears that this deprivation is not merely ephemeral," 145 relying on article 10(3) of the 1961 Harvard Draft. A number of American dissents have also 1 46 referred to the 1961 Draft, in particular article 10 on expropriation. James v United Kingdom, App. No. 8793/79, (1984) 6 EHRR CD 475, 490
143
(para 131). 144Starrett Housing Corp v Islamic Republic of Iran, 19 December 1983, concurring op Holtzmann J: 4 Iran-USCTR 122, 162-63. 145ITT Industries Inc v Islamic Republic of Iran, 26 May 1983, concurring opinion Aldrich J: 2 Iran-USCTR 348, 352. 146 E.g. Foremost Tehran, Inc, v Islamic Republic of Iran, 10 April 1986, dissenting opinion Holtzmann J (on expropriation): 10 Iran-USCTR 228, 259 n 6; Hood Corp v Islamic Republic ofIran, 13 July 1984, dissenting opinion Mosk J: 7 Iran-USCTR 36, 51. See also Sedco, Inc v NIOC, 24 October 1985, Interlocutory Award, 9 Iran-USCTR 248, 277 78, referring to commentary on article 10(3)(1) (1961 Draft) relative to the following proposition: "The appointment of conservators, managers or inspectors, often has been regarded as a highly significant indication of expropriation because of the attendant denial of the owner's right to manage the enterprise."
Responsibility of States Iran-United States Claims Tribunal judges have referred to the Harvard Drafts on other points, such as responsibility of a State arising out of breach of contract. It was in connection with contract 147 breach that Judge Mosk turned to article 12 of the 1961 Draft. Judge Holtzmann cited articles 14(1), 14(2), and 20(2)(b)(1) in 148 reference to the definition of an injured alien. There were also instances as well in which members of the Tribunal referred to the 1961 Harvard Draft in connection with the secondary rules of responsibility. Judge Brower, for example, in a dissenting opinion in Alfred L. W. Short v Islamic Republic of Iran, sought the proper rule of attribution for acts of insurgents, referring to article 18 of the 1961 Draft and its commentary to support the position that "liability 'should attach as early as possible, even before a group of insurgents has achieved the status of a full-fledged revolution.' ' '149 Judge Mosk, in a concurring opinion in American International Group v Islamic Republic of Iran, said that the Iran-U.S. Treaty of Amity of 1955150 provided for presentation of claims directly by nationals, which was consistent with the general position that not only States may invoke responsibility under international law. Judge Mosk referred to article 22(2) of the 1961 Harvard Draft, providing that "[al claimant is entitled to present his claim directly to a competent international tribunal if the State alleged to be responsible has 151 conferred on that tribunal jurisdiction over such claim."' If the American judges have preferred the 1961 Draft, their Iranian counterparts preferred the 1929 Draft. In Nasser Esphahanian v Bank Tejarat, Judge Shafeiei, dissenting, set out the case against an effecttive nationality rule. A dual national, in Judge Shafeiei's view, is a national of both States, with adverse consequences for the nationality
147 Pomeroy v Islamic Republic of Iran, 8 June 1983, concurring op Mosk J: 2
Iran-USCTR 372, 388.

148
Lillian Byrdine Grimm v Islamic Republic of Iran, 18 February 1983, Alfred L. W. Short v Islamic Republic of Iran, 14 July 1987, dissenting
dissenting op Holtzmann J: 2 Iran-USCTR 78, 84.

149
opinion Brower J, 16 Iran-USCTR 76, 100 (para 29). 150 Treaty of Amity, Economic Relations, and Consular Rights, 15 August 1955: 284 UNTS 108.
151
American International Group v Islamic Republic of Iran, 19 December
1983, concurring opinion Mosk J: 4 Iran-USCTR 96, 115.
Harvard Research on International Law of claims requirement. The broad formulation in article 16 of the 1929 Draft was consonant with this view, and Judge Shafeiei relied on it accordingly. 152 Judges Kashani, Shafeiei, and Ansari made reference again to the 1929 Harvard Research Draft in connection with nationality of claims, to similar effect, in a 1984 dissenting opinion.15 3 The Iranian judges thus tacitly rejected the (over)detailed provision on nationality of claims set out in article 23 of the 1961 Draft. Overall, it must be said that reliance by courts and tribunals on the Harvard Drafts has diminished over time. Even in instances where positions under the Harvard Drafts were broadly consistent with those in ARSIWA, the modern trend is toward reliance on the latter rather 154 than its forebears. Influence of the HarvardResearch Drafts in the doctrine The high point of the influence of the Harvard Drafts in writings of publicists was the adoption in 1962 by the American Law Institute of the Restatement (Second) of the Foreign Relations Law of the United States.155 The director of the Harvard Research project, Milton Katz, was on the advisory committee of the ALl; Louis Sohn served on the American Committee, one of several national and regional subcommittees contributing to the Restatement. Part IV of the Restatement (sections 165-214) addressed Responsibility of States for Injuries to
152
Nasser Esphahanian v Bank Tejarat, 29 March 1983, dissenting opinion
Shafeiei J (on the issue of dual nationality), 2 Iran-USCTR 157, 196: The principle of non-responsibility was also expressed in the first paragraph of Article 16 of the 1929 Harvard Draft Convention on the Responsibility of States: (a) A State is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national. 153 Case No. A-18, 6 April 1984, dissenting opinion Kashani, Shafeiei, and Ansari JJ: 5 Iran-USCTR 251, 326. 154 See e.g. ADF Group, Inc v United States of America, Award, Case No. ARB(AF)/00/1 (Feliciano, President; de Mestral and Lamm, Members) 6 ICSID Rep 470, 522 (para 166); CMS Gas Transmission Co. v Argentine Republic, Jurisdiction, 17 July 2003 (Orrego Vicufia, President; Lalonde and Rezek, Members), Case No. ARB/01/8, 7 ICSID Rep 494, 517 (para 108); Compagnie Noga D 'Importationet D 'Exportation,S.A. v Russian Federation(Miner CJ 2nd Cir 2004) 361 F.3d 676, 689 n 13 all referring to ARSIWA article 4. 155 Restatement of the Law (Second) Foreign Relations Law of the United States (St. Paul, Minnesota, American Law Institute Publishers, 1965).
Responsibility of States Aliens, a title which in itself suggested kinship to the 1961 Harvard Draft. Introductory Note 2 to Part IV avowed the connection:
The Reporters have had the benefit of extensive consultation with the authors of the draft Convention on the International Responsibility of States for Injuries to Aliens and accompanying Explanatory Notes published by the Harvard Law School in 1961 ... They have also profited greatly from access to some of the research material prepared for the Harvard draft. Although the rules stated in this Part differ from the
Harvard draft in some respects as to substance as well as form, there are many instances in which the Black Letter and Comment are based in substantial part on the Convention or on the Explanatory Notes. In some cases the Reporters, finding themselves unable to improve on the drafting of the Convention or Explanatory Notes, have used substantially identical language. 156
The first Chapter of Part IV addressed general principles of responsibility such as the duty to make reparation. Differing in form but consistent with the approach of the Harvard drafters, the Restatement compressed its treatment of attribution into a subtopic under general principles of responsibility. Chapters 2 and 3 (178-196) set out substantive rules of investor protection. The debt to the Harvard drafters was here particularly evident. The denial of justice provisions (178-182) were similarly detailed. 184 referred the definition of injuries to the economic interests of aliens to the same putative "international standard of justice." 193-195 identified breach of contract as an international wrong. 196, Prohibition of Gainful Activity, recalled article 11 of the 1961 Harvard Draft, guaranteeing the alien against deprivation of livelihood. On the other hand there were disagreements: for example, it was asked whether the effective nationality rule posited in article 21(3)(c) of the 1961 Harvard Draft went beyond the position in international law. 157 The Second Restatement also doubted the position under article 13, proposing the "abandonment of state responsibility for failure to prosecute offenders, as distinct from failure to prevent injury, except to the extent that failure to enforce criminal law deprives an injured alien of the 158 opportunity to recover damages from the offender.'
156 Restatement (Second), 497. 157 Restatement (Second), 175, Reporters' Note 2, 529-30. 158 Restatement (Second), 183, Reporters' Note, 550.
Harvard Research on International Law The third Restatement, adopted in 1987,59 was much less a mirror of the 1961 Harvard Research Draft but still was influenced by it. The categorical placement of State responsibility under the rubric of investor protection was tempered in 1987-but injury to foreign nationals was still associated (in 711-713) with State responsibilitycontinuing thereby the truncation of State responsibility characteristic of the 1961 Harvard Draft. A separate Chapter on human rights was introduced, though the full possibilities of this organizational change were not realized. On certain points, the Third Restatement further moderated the approach taken in the 1961 Draft, and reflected wider views. For example, a Reporters' Note acknowledges doubts as to the existence of international standards deducible from national practice respecting breach of contract: Some commentators consider "arbitrary" any unreasonable departure from principles recognized by the principal legal systems of the world in their law of government contracts. [citing article 12(a), 1961 draft].
However, the propriety of governmental action affecting rights under 160
state contracts has been uncertain under national law, too.
The Third Restatement nevertheless did not adopt the comprehensive re-conceptualization of the topic that had been underway in the ILC since the 1960s. Consulted by American counsel and courts when seeking guidance on questions of international law, the third Restatement carries forward the influence of the 1961 Harvard Draft, even as international lawyers have largely left the Draft behind. Writers referring to the Harvard Drafts have done so largely in reference to the same material as have courts and tribunals-that is, to the parts respecting the substantive rules of investor protection. Expropriation, as in the judicial and arbitral setting, is a topic for which writers draw on the Drafts, especially the 1961 Draft, with some frequency.1 6 1 The denial of justice provisions of the Harvard
159
Restatement of the Law (Third) Foreign Relations Law of the United States
(St. Paul, Minnesota, American Law Institute Publishers, 1987). 160 Restatement (Third), vol 2, 712, Reporters' Note 8, p 213. 161 E.g. 0 Schachter, "Compensation for Expropriation" (1984) 78 AJ 121, 124; AD Elinger, "Expropriation and Compensation: Claims to Property in East Germany in Light of German Unification" (1992) 6 Emory Int'l LR 215, 219; AZ Hertz, "Shaping the Trident: Intellectual Property under NAFTA, Investment Protection Agreements, and at the World Trade Organization," (1997)
Responsibility of States Drafts have attracted interest, in particular since the growth of NAFTA jurisprudence on the subject. The 1929 Draft (article 9) has been identified by a number of writers as the better formulation of denial of justice. 162 Charles Brower in 2006 referred to the Sohn and Baxter project, as illustrating the "general principles of law" in the field of investment protection. 163 Both Harvard Drafts have been cited by writers in connection with due diligence in the prevention of injury to foreigners. 164 Article 22(8) of the 1961 Draft (nationality of claims) was referred to in the aftermath of Loewen. 165 The Drafts are sometimes referred to as reflecting basic positions about attributionsuch as the responsibility of States for conduct of their component territorial and administrative units. 166 The Drafts remain natural points of reference when writers consider international law drafting projects
Canada-UnitedStates LJ 261, 298 n 173; C Brower, "Investor-State Disputes under NAFTA: A Story of Fear and Equilibrium" (2001) 29 PepperdineL Rev 43, 70 n 183; R Dolzer, "Indirect Expropriations: New Developments?" (2002) 11 NYU EnvironmentalLJ 64, 69. 162 GH Fox, "Strengthening the State" (1999) 7 Indiana J Global Leg Stud 35, 46 n 39; RL Lerner, "International Pressure to Harmonize: The U.S. Civil Justice System in an Era of Global Trade" 2001 BYUL Rev 229, 252 n 106; RD Bishop, SD Dimitroff and CS Miles, "Strategic Options Available when Catastrophe Strikes the Major International Energy Project" (2001) 36 Texas ILJ 636, 640. Cf T Weiler, "NAFTA Article 1105 and the Principles of International Economic Law" (2003) 42 Columbia J Trans L 35, 80. 163 C Brower, "Why the FTC Notes of Interpretation Constitute a Partial Amendment of NAFTA Article 1105," (2006) 46 Virginia JIL 347, 359 60. 164 DL Shelton, "Private Violence, Public Wrongs, and the Responsibility of States" (1989/1990) 13 Fordham ILJ 1, 21 23; D Bederman, "Contributory Fault and State Responsibility" (1990) 30 Virginia JIL 335, 340-41. 165 SD Murphy, "Contemporary Practice of the United States: U.S. Interpretation of Continuous Nationality Rule," (2002) 96 AJ 706, 707. For an earlier reference to the 1929 Draft on a nationality problem, see "Note: Claims of Dual Nationals in the Modern Era: The Iran-United States Claims Tribunal" (1984) 83 Michigan LR 597, 599 n 10. 166 p Spiro, "The States and International Human Rights," (1997) 66 Fordham L Rev 567, 580 n 47; P Spiro, "Globalization and the (Foreign Affairs) Constitution" (2002) 63 Ohio State LJ 649, 668 n 64 (both references to 1929 Harvard Research Draft art 3). See also P Dumberry, "New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement" (2006) 17 EJIL 605, 607-08.
Harvard Research on International Law generally.1 67 In the longer term, the two Harvard Research Drafts on State responsibility may be remembered as much as examples of codification projects as for the particular positions they took on the shape of State responsibility or on individual rules.
Future Directions?
None of the criticisms, nor the ultimately qualified reception given to some of the Harvard drafting, should obscure a remarkable fact. A private national drafting effort, albeit carried out with the benefit of personal links to the work of the League and UN codification projects, attracted considerable attention and was the subject of extended discussion in the ILC. Drafting work undertaken by other outside groups has influenced the Commission, and the members have referred routinely to diverse sources to evidence State practice. The Harvard Research project is not entirely a special case. But that the least yielding critics of its content, like Tunkin, could call the 1961 Draft "a valuable exploratory work"-even if "representing a definite point of view" 168-testifies to this feature. An approach that aimed to set down substantive rules faced the problem of limits. There were no inherent limits to a topic defined to encompass any substantive rule, the breach of which gives rise to the responsibility of a State. So defined, responsibility covers interna1 69 tional law as a whole-as observed by Fitzmaurice, among others. If the focus on substantive rules were to be retained, it was natural to
167
E.g. Gordon Christenson, Remarks on topic "Attribution Issues in State
Responsibility" (1990) 84 ASIL Proc 51, 53 54; Gordon Christenson, "Attributing Acts of Omission to the State" (1991) 12 Michigan JIL 312, 325 26; Sompong Sucharitkul, "State Responsibility and International Liability under International Law," (1996) 18 Loyola of Los Angeles Int'l and Comp LJ 821,825. 68 11 ILC Ybk 1960/ 1281 (para 43) (Tunkin). 169 According to Fitzmaurice, "[a]s drafted, the report covered the whole field of international responsibility which ... almost co-terminous with international was law": ILC Ybk 1956/I 233 (para 3) Fitzmaurice). Spiropoulos, at the next session, said, "When the Commission had first come to discuss it, it had seen how the term could be interpreted in such a way as to embrace a very large part, if not the whole, of international law. It had accordingly decided to follow the example set by the 1930 Codification Conference and limit the subject to the special problem of the responsibility for injuries sustained by aliens": ILC Ybk 1957/1 170 (para 26) (Spiropoulos).
Responsibility of States seek to define limits. The chosen limits were those containing the law of investor protection. The drafting projects therefore became projects to codify State responsibility relative to the protection of foreign investors. Yet the topic as so confined invited further problems. Investor protection was an active area of bilateral relations and has become even more so. Putative general standards formulated in such an area may clash with rules already formulated-and applied-on a narrower basis. In Barcelona Traction the Court went so far as to feign surprise that "no generally accepted rules in the matter have crystallized"; 170 the matter referred to may have been the protection of shareholders, but the Court's subsequent remarks about the bilateralisation of the field and the "intense conflict of systems and interests" implied a broader scepticism as to the existence of general customary rules in the field. Indeed there is better evidence of multilateral agreement on human rights standards than on those in the field of investment protection, to judge from the difficulties the OECD has 1 71 had with the proposed Multilateral Agreement on Investment. It might thus be asked whether the early approach to codifying State responsibility as a system for regulating investor rights was a wasted effort. After all, it ended in an impasse, and the later work of the ILC achieved (eventually) what it did by setting off in a quite different direction. But to call the earlier efforts a failure is to ignore the history. To be systematized as a discrete topic of international law State responsibility required the earlier work, even if it eventually sidestepped much of its content. The law of investor protection, with
ICJ Reports 1970 p 3, 47 (para 89). 171 Negotiations for a MAI took place from May 1995 April 1998 but were discontinued. For the Draft Consolidated Text of 22 April 1998 see
170
<http://wwwl.oecd.org/daf/mai/pdf/ng/ng987rle.pdf>. For comment, see Y Kodama, "The Multilateral Agreement on Investment and its Legal Implications for Newly Industrializing Economies," (1998) 32 J World Trade 21; T Waelde and A Kolo, "Environmental Regulation, Investment Protection and 'Regulatory Taking' in International Law, (2001) 50 ICLQ 811, 818-9; DC Esty, "Good Governance at the Supranational Scale: Globalizing Administrative Law, (2006) 115 Yale LJ 1490, 1549. An earlier OECD attempt in this field, a Draft Convention on the Protection of Foreign Property (1967) 7 ILM 117, did not go anywhere either: S Vascianni, "The Fair and Equitable Treatment Standard in International Investment Law and Practice," (1999) 70 BY99, 112 13.
126
its rich practice in the form of claims commissions and arbitration as well as State practice in diplomatic protection, was a productive vein from which to begin extracting the essentials of the topic. To arrive at a comprehensive text, drafters had to take account of other fieldsespecially multilateral obligations-and they had to curtail unworkable formulations of primary rules-leftovers from the initial effort. It is difficult to see how, as a matter of intellectual development, the initial effort could have been dispensed with.
Chapter 4
TERRITORIAL WATERS
John P. Grant Today, there is a pretty clear understanding of maritime zones and States' rights in them. From internal waters, through territorial waters, the contiguous zone, the continental shelf to the exclusive economic (or fisheries) zone, we know their physical extent: behind maritime baselines for internal waters, 12 miles from these baselines for territorial waters, 24 miles for the contiguous zone, 200 miles or the foot of the continental margin for the continental shelf and 200 miles for the exclusive economic zone. And we also know how to characterize the coastal State's rights (and, by derivation from that characterization, the specific rights of the coastal and other States): sovereignty for internal waters, qualified sovereignty for territorial waters, limited jurisdiction for the contiguous zone and jurisdiction over the zone and control of its resources for both the continental shelf and the exclusive economic zone. But that was not always the case. The blame, if blame there be absent consensus among States as to these zones and the rights in them, begins with the famous "battle of the books."1 These books were nothing more than propaganda on behalf of particular European States and their maritime interests dressed for battle in legal garb.2 On behalf of the Netherlands and their attempts to intrude on Portugal's claimed monopoly in the East Indies, and consequent claims to exclude foreign vessels from the surrounding seas, Grotius argued for the complete freedom of the seas in his mare liberum doctrine. The essence of Grotius' thesis, first advanced in 1609 in Mare Liberum, was that "[t]he sea is common to all because it is so limitless that it cannot become a possession of any one, and because it is adapted for
1See Nys, Etudes de droit internationalet droitpolitique(2nd ed. 1896), 260.

2
Meurer, The Programof the Freedom of the Sea: A PoliticalStudy in Interna-
tionalLaw (1919), 9.
Harvard Research on International Law the use of all, whether we consider it from the point of view of navigation or of fisheries. 3 The battle was joined by scholars from other States, the most formidable of whom was John Selden, writing in support of the attempts by the English Crown to require licenses of foreign fishermen wishing access to "English" waters. In Mare Clausum, published in 1625, he gave a "masterly exposition" of the English assertion, basing his argument on principle and precedent.4 Selden may have won the intellectual battle, but Grotius won the war: it did not take long for the mare liberum principle to prevail in the practice of States.5 The battle of the books did collateral damage. In the words of one authority, the publicists, particularly Grotius and Selden, "impelled by the interests of their respective countries, so entangled the subject, by their passionate opinions, that instead of elucidating and deciding the question, they involved it, by their useless learning, and equivocal opinions, in great obscurity. 6 What suffered most collateral damage was the nature and extent of a State's rights in the waters immediately adjacent to its territory. With mare liberum holding sway, and despite State assertions of authority in these territorial waters, it was unclear, as a matter of international law and some municipal law, what was the extent of a State's seaward authority, the exact nature of that authority and the particular rights and duties incidental to that authority. The Harvard Research draft Convention on Territorial Waters 7 is located, historically, between early unclear and disputed understandings about the territorial sea and more modern rules of greater clarity and general acceptance. The focus of this chapter is twofold: to examine whether the Harvard Research's draft Convention was original or merely part of an ongoing trend; and to identify the contribution that the Harvard draft and its commentary made to subsequent legal thinking on the territorial sea, particularly the work of the Inter' Grotius, Freedom of the Sea (Classics of International Law edition, 1916), 28. 4 Azuni, The MaritimeLaw of Europe (1806), Vol. 1, 210. 5 See Colombos, InternationalLaw of the Sea (6th ed. 1967), 61-64. 6 Azuni, supra n. 4, 213. 7 23 Am. J.Int'l L (Spec. Supp.) 241 380 (1929); the personnel involved are listed at 241, the English text of the Draft Convention appears at 243 (hereafter the draft Convention), the Comments begin at 249 and the Appendices begin at 366. See also the HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 3.
Territorial Waters national Law Commission in drafting what became the Geneva Convention on the Territorial Sea and Contiguous Zone of 1958-and which morphed, almost unchanged, into Part II of the U.N. Convention on the Law of the Sea of 1982.
Early Disparities
The Harvard Research was but one of a series of proposals for codification of the international law of territorial waters that emerged in the 1920s. The Harvard team had access to these various proposals, and indeed appended them to its own draft convention and commentary.8 Among the most significant of these proposals were the League of Nations' Committee of Experts' amended Draft Convention on Territorial Waters of 19269 and the subsequent Schedule of Points, drawn up by the League of Nations' Preparatory Committee in 1928;1 0 the International Law Association's Draft Convention on Law of Maritime Jurisdiction in Time of Peace of 1926;11 and the Institut de DroitInternational'sProjet de reglement relatifc la mer territoriale en temps depaix of 1928.12 All in all, these instruments-and the subsequent Geneva Convention on the Territorial Sea and Contiguous Zone, 195813 and Part II of the U.N. Convention on the Law of the Sea,198214-present a fairly uniform view of the nature of a State's rights in the territorial sea, the content of, and limitations upon, these rights and the physical extent of the territorial sea But such consistency is hardly visible at earlier times. At one level, the juridical nature of the territorial sea may not appear to matter,1 5 but whether the territorial sea was regarded as part ' Ibid., 366 380 (hereafter the Comments or commentary). 9 L.N. Doc. C.196.M.70.1927.V at 72; the text also appears supra, n. 7, 366.
Reproduced in 20 Am. J. Int'l L. (Spec. Supp) 141 (1926).
'0 L.N. Doc. C.44.M.21.1928.V; the text also appears supra, n. 7, 378.
1 I.L.A., Report of the 34th Conference, Vienna 1926, 101; the text also appears supra, n. 7, 373. 12 Resolution III, Stockholm 1928, XIII Annuaire de / 'Institutde Droit International, 317 (1928); the text also appears supra,n. 7, 368. 13516 U.N.T.S. 205. 14 1833 U.N.T.S. 3.
15Philip
Marshall Brown, for example, unhelpfully said: "... the problem of the marginal sea is to be viewed neither [sic] as one of ownership, of sovereignty, of
Harvard Research on International Law of the territory of the coastal State, with that State having the powers and competences that it has over its land territory (or an approximation of these powers and competences), or as a zone in which the coastal State was accorded certain extraordinary jurisdictional competences affected the actual rights and duties of the coastal State and of the vessels and crews of other States. No single decision better demonstrates this disparity of views on territorial waters than the Franconia case in November 1876.16 Ferdinand Keyn, the German master of the German-flagged Franconia,was convicted of manslaughter in the Central Criminal Court in London in respect of the drowning of Doris Dorcas Young, a passenger on the British steamer Strathclyde, following 17a collision between the vessels just under two miles from Dover pier. With no lack of references to international law and its literature and careful analysis of the relevant international and English (and some foreign) law, the thirteen judges of the Court of Criminal Cases Reserved decided, by a majority of seven to six, that English courts did not have criminal jurisdiction over a foreigner on a foreign vessel in territorial waters. While two judges1 8 merely assented to the opinion of Lord Cockburn in the majority, and three1 9 gave short opinions, there were nonetheless seven substantial separate 20 or dissenting 2' opinions. From this range of views, it is somewhat difficult to identify a ratio decidendi. One can do no better than quote the words of the headnote of the Exchequer Division report:
that, prior to [Offences at Sea Act 1536], the admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore of England; that that and dominium, of imperium, of servitudes, or of other like juristic concepts. It is not one of establishing an arbitrary three-mile limit applicable to all contingencies. It is to be regarded as a question of the primordial right of every nation to exercise a 'protective jurisdiction' over its coastal waters in matters affecting its own safety and welfare.": The Marginal Sea, 17 Am. J.Int'l L. 91 at 96 (1923). 16R. v. Keyn (1876) 2 Ex. D. 63. 17 Ibid., 63-64. 18Pollock, B., and Field, J., ibid., 239.
19 Bramwell,
J.A., Kelly, C.B., and Lush, J., ibid., 149,
150 and 238
respectively. 20 Cockburn, C.J., and Sir R. Phillimore, ibid., 159 and 65 respectively. 21Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman and Lindley, JJ., ibid., 151, 124, 117, 108, 99 and 86 respectively.
Territorial Waters
the subsequent statutes only transferred to the [regular courts] the jurisdiction formerly possessed by the admiral; and that, therefore, in the absence of statutory enactment, the Central Criminal Court had no power to try such an offence. 2 It did not take long for Parliament to determine that the decision
was wrong, at least to the extent that it declared bad policy, and to enact the Territorial Waters Jurisdiction Act 1878, effectively extending English criminal jurisdiction over a three-mile zone around the coast. But even Parliament seemed confused, the Attorney General stating that territorial waters were within "Her Majesty's dominions," which, being "part of [her] territory," gave Parliament "the right by 23 legislation to give the Courts of the country jurisdiction over it." The House of Commons was unmoved by Sir William Harcourt, who, as Whewell Professor of International Law at Cambridge, might have known whereof he spoke, when he said that the assertion of dominion in the bill "was much too absolute; and it was not necessary to make an assertion of that kind for merely police purposes. 2 4 The 1878 Act essentially emphasized dominium over territorial waters, that dominium conferring an aspect (criminal jurisdiction) of imperium. There was broad criticism of the Act, most particularly because of the incompatibility of the broad jurisdictional powers it asserted with the established right of innocent passage of foreign vessels. 25 Most of the criticisms missed the point by misinterpreting the ratio of the case and confounding the ratio with some of the dicta. As W.E. Hall correctly said, "the case was decided adversely to the jurisdiction of 26 the state upon grounds of municipal and not of international law., Yet, the legacy of the Franconiacase lived on in the conflicting and confusing dicta of the judges who decided it. To Chief Justice Cockburn, the issue was so simple he repeated it more than once: there being no explicit statutory conferment of criminal jurisdiction over the acts of foreigners in the waters adjacent
Ibid., 63. H.C. Deb., 18 April 1878, col. 1398. 24 Ibid., col. 1391. 25 Discussed in O'Connell, The Juridical Nature of the Territorial Sea, (1971) 45 B.YLL.303 at 332-334. 26 International Law (7th ed. 1917), 215.
22 23
Harvard Research on International Law to the coast, the English courts had no jurisdiction.27 He started from the "incontestable [and] most universally admitted ... proposition" that a foreigner is criminally liable for acts done within the territory of another State, but not for acts done outside that territory. 28 Applied to the instant case, he concluded that, unless "the accused, Keyn, at the time [of the offence] was on British territory or on board a British ship, he could not be properly brought to trial under English law, in the absence of express legislation. ' ,29 In an opinion devoid of nuance,30 he saw a bright line between a State's territory, over which it had complete jurisdiction, and the high seas, in respect of which it had jurisdiction over only its own vessels.3 1 Cockburn's review of the international authorities, including Grotius, Gentilis, Pufendorf, Bynkershoek, Wolff, Vattel, Martens and Ortolan, led him to accept that the suggestion of Bynkershoek, that the sea surrounding the coast to the extent of cannon-range should be treated as belonging to the State owning the coast, has, with but very few exceptions, been accepted and adopted by the publicists who have followed him during the subsequent two centuries. But it is equally clear that, in the practical application of the rule, in respect of the particular of distance, as also in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, great differences of opinion and uncertainty have prevailed, and still continue to exist., These differences of opinion, he explained, relate to such matters as whether the whole body of criminal law extended to "the so-called territorial sea" or only "police and safety" provisions or only the protection of "fisheries and customs" '33 Clearly, Cockburn was
The Franconia,supra n. 16, 160, 199 and 230 231. Ibid., 160. 29 Ibid., 161.
27
28
One commentator remarked of Cockburn's opinion: "A kind of careless strength in the general tenor of his discourse, and immense vigor whenever his powers are aroused, seem to be his chief characteristics, rather than accurate research and calm judicial impartiality:" Foster, The Case of the "Franconia," 11 Am. L. Rev. 625 at 635 (1876). 31 TheFranconia,supra n. 16, 161. 12 Ibid., 191.
30
33
Ibid., 192-193.
Territorial Waters unhappy with the prosecution argument that the court should apply principles of international law that he saw as unsettled. Later, he revealed his true position in a number of propositions:
all pretension to sovereignty or jurisdiction over foreign ships in the narrow seas has long since been wholly abandoned ... [there is] uncertainty that attaches to the doctrine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea ... the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly
asserted or conceded among independent nations, or, in practice, exercised and acquiesced in, except for violation of neutrality or breach of revenue or fishing laws, which ... stand on a different footing..3 The other majority judge with an extended opinion, Sir Robert Phillimore, reviewed very much the same range of authorities as Cockburn, agreed with him on the merits, but came to a different conclusion as to the territorial sea. To him, while "the consensus of civilized independent states has recognized a maritime extension of frontier to the distance of three miles ... for the defence and security of the adjacent state," the enclosed zone being subject to the dominion of the State, that did not suffice to confer on the State "the same rights of jurisdiction and property which appertain to it in respect to its lands and its ports. 35 Phillimore distinguished these "two sovereignties" by the fact that, although there was nojus transitusfor foreigners over a State's territory, there was a right of passage for foreign vessels through territorial waters.36 Of the others in the majority, Lush, J., recognized the term "territorial waters" as a "convenient metaphor" for the sea areas which "usage and the common consent of nations ... have appropriated ... to the adjacent State to deal with ... as the State may deem expedient in its own interests. ' 37 Bramwell, J.A., conscious of the possible consequences for British shipping in the adjacent waters of other States, restricted himself to joining the majority on the basis that
34
Ibid., 230. 35 Ibid., 81. As a consequence, Phillimore thought that criminal jurisdiction over
foreigners in the territorial sea required legislative authority: ibid., 83 and 86. 36 Ibid., 81-82. 37 Ibid., 239.
Harvard Research on International Law there was no statutory authority. 38 Kelly, C.B., denied the existence of 39 any juridical right below the low-water mark in dramatic terms, although he admitted that some limited-but unspecified-jurisdiction within three miles "for some purposes has been established and sanctioned by a long-continued actual exercise ... acquiesced in, by all others against or in respect of whom it has been claimed. 4 Among the dissenters, 41 Lord Coleridge, C.J., is clear and concise. Agreeing with Brett, J.A., and Lindley, J., he found that, by "a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash," these rights being based "on grounds of sense if not of necessity. 42 He was unconcerned about discrepancies as to the extent of this zone, such being in the nature of international law.43 He relied on jurists, "men of education," who had generally agreed such a principle for three centuries.4 4 In addition, English courts had repeatedly held that coastal waters were part of the realm; 4 and Parliament had enacted legislation to similar effect.46 In his finely structured and logically sound dissent, Brett, J.A., found, from the work of jurists, "a territorial right in a country over the adjacent sea; ' 47 as such, "the country has its ordinary jurisdictions over all who are within that territory;,, 48 and "every enactment of English law, common or statute law, which is not confined to a less
38 Ibid., 149 150. 39 "[N]ot one single
instance of the exercise of such ajurisdiction is to be found in the history of the world from the beginning of time:" ibid., 151. 40 The dissent of Denman, J., is not discussed, as he founded exclusively on the term "offences committed" in sec. 22 of the Central Criminal Court Act 1834 in concluding that the offence was committed on the Strathclyde, a British vessel, thereby conferring jurisdiction on the Central Criminal Court: ibid., 99 108. 42 Ibid., 153.
41
43
id.
44 45
Id.
Ibid., 154. Ibid., 155. 46 Ibid., 155 157. 47Ibid., 133. 41 Ibid., 134.
Territorial Waters area by express words or necessary inference, is, as law, applicable ... to the water territory just as much as to the land territory. 4 9 There is remarkable consistency in the views of Lindley and Grove, JJ., and Amphlett, J.A., on the nature of adjacent waters. All accepted that international law allowed each coastal State rights in the waters adjacent to its coast, Lindley considering them proprietary or territorial in nature:5 Grove as property or, "if not property, ... subject to its jurisdiction,"5 1 and Amphlett as "proprietary and territorial. 5 2 These rights is adjacent waters, extending to three miles,53 are to be qualified by the right of innocent passage. 4 To them, they encompassed, without legislative authorization, criminal jurisdiction 5 5 over foreign nationals on foreign vessels. Writers of the period from the Franconiacase until the emerging consensus of the 1920s were no more unified in their views. In 1905, 56 in the first edition of his seminal treatise on International Law, Lassa Oppenheim conceded that, while a maritime belt fell under the "sway" of coastal States, there was no unanimity with regard to the nature of that sway. 7 He concluded that the rights a State had in its maritime belt were best characterized as those of sovereignty, rather than the more limited jurisdiction and controlf Oppenheim also found no unanimity with regard to the starting point of this maritime belt (between the high and low water and other points) and its extent seaward (between three miles and something much larger). 9 Within this unclear zone from an unclear starting point, and probably based on a concept of sovereignty, Oppenheim was nonetheless certain that the coastal State enjoyed exclusive fishery rights and exclusive police and customs powers. 60 He recognized the right of innocent passage
49
50
Ibid., 144.
Ibid., 86, 89 90. 109. 52 Ibid., 122-123. 53 Ibid., 93-94 (Lindley), 110 (Grove) and 122 (Amphlett). 54 Ibid., 89 (Lindley), 113-114 (Grove) and 122-123. (Amphlett). 51 Ibid., 96-97 (Lindley), 118 (Grove) and 123 (Amphlett). 56 Oppenheim, InternationalLaw (1905), Vol. 1, Peace. 57 Ibid., 239. 5 1 Ibid., 239 240. 59 Ibid., 241-242. 60 Ibid., 242.
51 Ibid.,
Harvard Research on International Law through this maritime belt, at least for merchant vessels in time of peace. 6 1 He also recognized a limited form of contiguous zone, by which coastal States could impose their customs and sanitary regulations on those foreign vessels bound for the coastal States' ports "as are approaching, although not yet within, the territorial maritime , ,62 belt. Writing in 1922, Charles Cheney Hyde, who later played an important role in the Harvard Research, but not in the territorial waters project, described the control of the territorial State over its marginal sea as "limited," extending to fisheries and police and some other minor matters, and requiring the passage of foreign merchant vessels in the exercise of the right of innocent passage.6 3 He later characterized coastal States' rights in the marginal sea as jurisdiction. 64 As to the extent of territorial waters, Hyde supported a threemile distance measured from the low-water mark. 65 He also argued for an enforcement competence in States beyond the limits of territorial waters, in particular in relation to customs violations.6 6 In a similar vein, George Grafton Wilson, who was reporter to the Harvard Research's territorial waters project, viewed a State's rights as being jurisdictional in nature.67 Indeed, he went as far as to limit that jurisdiction to commercial regulation, pilotage and anchorage, sanitary and quarantine regulations, fisheries, revenue and general police powers .68 On the other hand, Henry Wheaton asserted that, within the waters adjacent to a coastline, a State had "rights of property and territorial jurisdiction [which] are absolute., 69 He identified this zone as extending to three miles, 70 and recognized a hovering jurisdiction outside
61
Ibid., 242 244.
62
Ibid., 246.
Hyde, InternationalLaw, Chiefly as Interpreted and Applied by the United
63
States (1922), Vol. 1, 277. 64 Ibid., 278.

65
66
Ibid., 253 and 257-258. Ibid., 257. 67 Wilson and Tucker, InternationalLaw (6th ed. 1915), 121. 68 Ibid., 122. 69 Elements of International Law (8th ed. by Dana, 1866), 177; see also 187. 70
Ibid., 178.
Territorial Waters this zone and extending to twelve miles. 71 Despite his insistence on the absolute rights of States in their territorial waters, he accepted a right of innocent passage by the vessels of all States.7 2 Theodore D. Woolsey, an advisor to the Harvard Research territorial waters project, writing in 1884,73 regarded, without question, territorial waters as part of the territory of coastal States, such being "incident to the territorial sovereignty on the land. 74 In similar vein, Thomas Wemyss Fulton, writing in 1911, while stating that it was firmly established that all States have "sovereignty" in the seas that wash their shores, admitted that "there is not, and has never been, universal agreement as to the precise nature of those rights, or as to the extent of the sea that may be thus appropriated. 7 5 David Field's ambitious Outlines of an International Code considered the limits of national territory to extend to three marine leagues, though he offered no authority for this 12-mile zone other than a reference to the cannon-shot rule; 76 and he considered that criminal jurisdiction ran throughout these territorial limits. 77 In 1927, after an exhaustive and impressive analysis of State practice, Philip Jessup, one of the stalwarts of the Harvard Research and an advisor on the territorial waters project, concluded, after a meticulous analysis of State practice, treaties and theory, that the coastal State "has over territorial waters rights, powers and privileges which are in principle the same as those which [it] possesses on [its] land territory;, 78 that this "freedom of action is restrained by the right of innocent passage and the right to seek shelter in distress;,, 79 and that "the state is sovereign over its territorial waters. 80 Jessup supported a three-mile extent for territorial waters, while recognizing divergencies in State
71Ibid.,
72
179. Ibid., 189. 7, Woolsey, Introduction to the Study of International Law (4th ed. 1884). 74 Ibid., 80. Woolsey stated that the territory of a State included "the coast-sea to
a distance of a marine league:" id.

76
75The Sovereignty of the Sea (1911), 538. 77 Ibid., 642.

78
Field, Outlines of an International Code (2nd ed., 1876), 28. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 208.
Id.
79
'o Earlier, Jessup declared that "the littoral state is fully sovereign over a belt Id. of marginal sea:" ibid., 3.
Harvard Research on International Law practice and academic theory," and he favored rights to enforce smuggling, quarantine and security laws beyond territorial waters. Emerging Consensus The 1920s was a period of remarkable activity in the attempts to codify international law. In 1922, in response to an earlier call by the Advisory Committee of Jurists that had drafted the Statute of the Permanent Court of International Justice for some codification efforts in the League of Nations, 83 the League's Assembly resolved to recommend that the Council establish a committee of experts to identify those areas of international law "sufficiently ripe" for codification.8 4 The Council duly established a Committee of Experts on the Codification of International Law,85 which identified territorial waters in its first tranche of areas appropriate for investigation.8 6 In 1925, a sub-committee of three experts, including George W. Wickersham, who was later an advisor to the Harvard project on territorial waters, drafted a convention on territorial waters, 87 accompanied by a "questionnaire" containing some outstanding-and, after what had gone before and what was to follow, prophetic-issues of paramount importance: Whether several of diverse character should be recognized as territorial waters or this designation be reserved for the zone within which the powers of the coastal State are most complete. Whether the powers of that State should be described as sovereign rights. What should be the width of the territorial sea and possibly of other zones. 88
81 Ibid., 82
63-64. Ibid., Chap. II, esp. 75-76. 83 Resolution of 24 July 1920, Proces-Verbaux of the Proceedings of the Committee, 1920, 747. 84 Resolution of 22 September 1922, L.N.O.J.Spec. Supp., No. 21, 1922, 10. 85 Resolution of 12 December 1924, L.N.O.J., February 1924, 274. 86 L.N. Doc. C.275.1925.V; reproduced in 20 Am. J. Int'l L. (Spec. Supp.) 14 15 (1926). 87 Id.; reproduced in 20 Am. J. Int'l L. (Spec. Supp.) 141 (1926). 88 Id.; reproduced in 20 Am. J. Int'l L.(Spec. Supp.) 63 (1926).
Territorial Waters Subsequently, in 1926, after the consideration of replies by governments, an amended draft convention, sometimes referred to as the Schicking draft after the sub-committee's chair, was adopted by the Committee of Experts. This amended draft convention was appended to the Harvard draft Convention and commentary, 9 and it is clear from the commentary that the Harvard team also had access to, and used, the commentary attached to the SchUcking draft. Also appended to the Harvard Research work was the subsequent League of Nations "Schedule of Points," 90 devised by a preparatory committee and intended to bridge the work of the Committee of Experts and the actual conference; these points were to be the basis of discussion at The Hague Codification Conference in 1930. The Institute de Droit International,established in 1873 with the task "to promote the progress of international law," 9 1 adopted a Projet de rglement relative c la mer territorialeen temps depaix at its 1928 Stockholm session.9 2 This document was considered by the Harvard Research, as was the International Law Association's Draft Convention on Law of Maritime Jurisdiction in Time of Peace of 1926. 93 The I.L.A. was also established icn 1873, tasked94with "the study, clarifica' tion and development of international law. , What is significant about these four documents, indeed of all the documents appended to the Harvard Research project on territorial waters 95 is the emerging consensus on the major issues.
'9 Supra n. 9. 90 Supra n. 10.
91
Art. 1(2) of the Statute of the Institut de DroitInternational Law. See Abrams,
The Emergence of the International Law Societies, 19 Revue of Politics 361 (1957); Hambro, The Centenary of the Institut de Droit International, 43 Nordisk Tedsskrift Int'l Ret. 9 (1973). See also <www.idi-iil.org>. 92 Supra n. 12. 93 Supra n. 11. 94 Art. 3(1) of the I.L.A. Constitution. See Abrams, The Emergence of the International Law Societies, 19 Revue of Politics 361 (1957); Crawford, The International Law Association from 1873 to the Present, 2 Unif L. Rev. n.s. 68 (1997). See also <www.ila-hq.org>. 9' The other four documents were the American Institute of International Law submission to Project No. 10 on "National Domain" of the International Commission of Jurists at Rio de Janeiro, April 1927; the Institute's submission to Project No. 12 on "Jurisdiction," April 1927; the Institute's submission to
Harvard Research on International Law Suffering an attack of, repeated only once, pedantry, the Harvard Research began by quibbling about the appropriate term to be used for the waters subject to its study. The remit had been to examine "territorial waters," 96 mirroring the term used in calling The Hague Conference on the Codification of International Law. Describing the term as "etymologically misleading," 98 encompassing as it did all the waters over which a State had sovereignty, including inland lakes, the Harvard team determined that the better term was "marginal sea." This, it said, would clearly differentiate the zone under consideration from inland waters. 99 Thus, inland waters were the waters "inside its 0 marginal sea, as well as the waters within its land territory," 1 0 while, seaward, were the high seas, "that part of the sea outside marginal 01 seas."' The Harvard team then sought to determine the physical extent of the marginal sea. The draft Convention opted for a marginal sea of three miles measured from the mean low-water mark or the seaward limit of a bay or river-mouth. 0 2 Acknowledging that there was no general support for a marginal sea broader than three miles, 0 3 the Research distilled a three-mile limit from an examination of State
Project No. 18 on "Freedom of Transit," April 1927; and the Japanese branch of the International Law Association's draft on the extent of littoral waters and the powers exercisable therein, July 1926. 96 See General Introduction, 23 Am. J. Int'lL. (Spec. Supp.) 1at 8 (1920).
97 L.N.O.J., Spec. Supp., No. 53, 9.
98
99
Comments, 249. Ibid., 249 250. 100 Draft Convention, art. 3. 101Ibid., art. 4. 102 Ibid., art. 2. 103 Comments, 250. Cornelius van Bynkershoek is credited with enunciating the "cannon shot" rule for the extent of the territorial sea in the early 18th Century (De Domino Maris (1702) Chap. 2), a rule that became established in juridical writings and State practice in the ensuing years and that led to a standardized 3 mile limit. While some have questioned whether Bynkershoek was the originator of the canon shot/3 mile limit (Walker, The Cannon Shot Rule, 1922 B.YLL. 210), and others have identified the cannon shot rule in Roman times (Fenn, Origins of the Theory of Territorial Waters, 20 Am. J. Int'l L. 465 (1926)), it is Bynkershoek whom scholars identify with a 3 mile territorial sea: Kent, The Historical Origins of the Three Mile Limit. 48 Am. J. Int'l L. 537 (1954); Jessup, supra n. 78, 3-9.
Territorial Waters practice and treaties.10 4 In this, the Harvard Research was simply repeating the limits already set down in the Committee of Experts' amended Draft Convention of 1926,105 the Institut de Droit International's reglement of 1928106 and the I.L.A.'s draft Convention of 1926.107 As to the low-water mark as the baseline for measuring the marginal sea, the Research accepted it without much discussion;10 8 but, here again, the Research is following what was already provided 11 for by the Committee of Experts, 0 9 the Institut and the I.L.A.1 11 For bays and river-mouths, the Research proposed a ten-mile closing line across the mouth of the river or the entrance to the bay.1 12 Where the entrance to a bay or river-mouth exceeded ten miles, straight lines of ten miles were to be applied within the bay or river-mouth.113 The ten-mile closing line for bays had been presaged in the 1926 amended 5 Draft Convention1 14 and the Institut's rglement.11 Nevertheless, the Harvard rule in relation to bays was expressed as being de lege ferenda,ll 6 and it was not applicable in the case of historic bays, "considered as wholly territorial waters ... because of claims long maintained ...17 The Harvard draft Convention recognized islands "or around land exposed only at some stage of the tide" as generating marginal seas of their own.' 18 That bare provision was fleshed out in the commentary,
Ibid., 252-262. Supra n. 9, art. 2. 106 Supra n. 12, art. 2. 1 07 Supra n. 11, art. 5. 108 Comments, 252. '09 Supra n. 9, art. 2. 110 Supra n. 12, art. 3.
104 105
"'Supra n. 11, art. 5.

112 Draft 113 114 115 116 117
Convention, art. 5.
Id.
Supra n. 9, art. 4. Supra n. 12, art. 3.
Comments, 266.
Id. The first part of this quotation should read "considered as wholly internal
waters." The Committee of Experts' Draft Convention of 1926, art. 4, included an exception for historic bays, where a greater distance than 10 miles "has been established by continuous and immemorial usage."
118
Draft Convention, art. 7.
Harvard Research on International Law accepting in particular the linking of the marginal seas of archipelagos where they are sufficiently close into a complete belt of marginal sea; 119 and denying submerged shoals, stationary buoys and other markers and artificial structures like lighthouses from generating their own marginal seas. 120 Very similar provisions appear in the 1926 amended Draft Convention 12 1 and the Institut's reglement,122 although their texts go further in expressly acknowledging that the constituent islands of an archipelago were to be regarded as a whole, with a territorial sea drawn around the outer islands. Straits, particularly those used in international navigation, were addressed by the Harvard Research in terms of default rules to be applied in the absence of any special agreement, thus recognizing the special regimes already in existence for particular straits. 123 In a another confusing lapse in terminology, the Harvard draft Convention provided for the waters of a strait less than six miles wide to be "territorial waters;"'1 24 and for the median line to be the border between the "territorial waters" of two States on either bank of a strait less than six miles wide.1 25 Without qualification, the draft Convention declared that a strait "connecting high seas shall remain open to navigation by the private and public vessels of all states, including vessels of war." 1 26 This principle of free navigation was stated by the Harvard team to be an existing rule of international law applicable to all straits. 127 In similar, but not identical terms, in the 1926 amended Draft Convention, straits less that ten miles wide fall within the territorial waters of the coastal State; 128 where the shores of a strait belong to different States and the strait is less than ten miles wide, the border was to be the median line.1 29 In this Convention, there is no special provision for passage of foreign vessels through international
119 Comments, 276.
2 1 0 id.
121Supra
n. 9, art 5.
122 Supra n. 12, art. 5. 123 And discussed in Comments, 124 Draft Convention, art. 8. 125Draft Convention, art. 9. 126Draft Convention, art. 10. 127 Comments, 281. 121 Supra n. 9, art. 6. 129 Ibid., art. 6.
281-287.
Territorial Waters straits, such passage being governed by the right of "pacific passage" applicable to all territorial waters. 130 While the Institut's rglement contained no separate provisions for straits, the I.L.A. draft Conven13 tion of 1926 had a separate section, consisting of three articles, ' delimiting straits in accordance with three-mile territorial waters, but making no special provision of passage through straits. Describing the right of hot pursuit as based on "considerable authority," 132 the Harvard draft Convention provided in art. 21: "A State may continue on the high sea the pursuit of a vessel of another state and may effect its arrest for a violation of its law, if such pursuit was begun while the vessels was in the territorial waters of that state." The accompanying commentary added that the pursuit must be continuous and uninterrupted, and must end when the pursued vessels enters its own or another State's territorial waters. 133 Virtually iden134 tical provisions appeared in the drafts of the Committee of Experts, 3 the Institut1 5 and the I.L.A.,13 6 though all three require notification to the flag State of any arrest on the high sea. Given the disarray in earlier legal thinking, what is particularly significant about the 1920s' codification projects on territorial waters is how they not only characterize territorial waters, but much more significantly, how they allocate the right and duties of coastal and other States in these waters. The 1926 amended Draft Convention referred to "sovereign rights ... in so far as, under general international law, the rights of common user of the international community or the special rights of any State do not interfere with such sovereign rights" 137 and the Institut's rlement to "la souverainet6 ... sous les ' restrictions d6termindes ci-apr&s." 13 The League's Schedule of Points of 1928 took "as the point of departure the proposition that the State possesses sovereignty over a belt of sea around its coasts ...
130 Ibid., art. 7.
3 1 1Supra n. 11, arts. 14-16.
132
Comments, 358.
1 3
Supra n. 9, art. 10. Supra n. 12, art. 13. 136 Supra n. 11, art. 12. 37 1 Supra n. 9, art. 1. 138 Supra n. 12, art. 1.
134
3 Ibid., 358-359.
1 35
Harvard Research on International Law [involving] possession by the State in the belt of the totality of the those rights which constitute sovereignty... It is obvious that in exercising its sovereignty the State must respect the limitations 139 imposed by international law." The term "sovereignty," being in the 1920s' air, it is no surprise that the Harvard Research declared that the "sovereignty of a state extends to the outer limit of its marginal sea." 140 The Harvard team acknowledged that this sovereignty was limited by the right of innocent passage and by the restricted criminal and civil jurisdiction over foreign vessels.1 4 1 Earlier, the Harvard team had debated whether the marginal sea should be the zone in which a State might exercise authority of any kind or the zone in which it might exercise full authority-all in the context of determining how to accommodate the more limited jurisdictional rights States have claimed in the waters beyond three miles. 142 Citing the Institut de droit internationaland the I.L.A., 143 it opted for the term "sovereignty." One might question whether sovereignty is the right descriptor for a phenomenon involving a jus transitus for foreign vessels and very limited criminal and civil jurisdiction over foreign vessels; it is certainly not, as the Harvard commentary has it, "a completeness of power in general comparable to that which the state has over its land territory. 14 4 Nonetheless, this qualified sovereignty has become the term used in describing a State's rights in its territorial sea: both art. I of the Geneva Convention of 1958145 and art. 2 of the U.N. Convention of 1982146 refer to "sovereignty," and then qualify that sovereignty by subjecting it to "this Convention and to other rules of international law." The Harvard draft Convention contains no express words of qualification, though it has to be conceded that the sovereignty provision is immediately followed by an articulation of the standard limitations of innocent passage and of the exercise of jurisdiction over foreign vessels.
139
Supra n. 10, Point 1.
140

289. Ibid., 251.
Ibid., 289 290.
141Comments,
142
141 144
Ibid., 288.
145 Supra n. 13. 46 1 Supra n. 14.
Territorial Waters The restrictions placed on a State's sovereignty over its territorial sea in the Harvard draft Convention are essentially the same as those in other codification projects. Thus, the 1926 amended Draft Convention declared that "all vessels without distinction" had the right of "pacific passage" through the territorial sea, subject to the coastal States legitimate regulations and conditions of passage. 147 The Institut's r~glement recognized "le droit de passage inoffensive," but available only to vessels of commerce and exercisable only in conformity with the police and navigation regulation of the coastal State.1 48 Warships were to be subject to the coastal State's "r~gles sp6ciales."14 9 The I.L.A. draft Convention provided for all vessels, "public and private, ... the right to pass freely through the territorial sea" subject to the regulations0 enacted by the coastal State in 15 conformity with the convention. The Harvard draft Convention provided: "A state must permit innocent passage through its marginal sea by the vessels of other states, but it may prescribe reasonable regulations for such passage., 15 1 The term "vessels" was expressly limited to privately owned and operated vessels 152 and, as a consequence, the right of innocent passage did not extend to warships, whose passage would continue to require prior notice and permission. 153 The power to make regulations was wide, allowing, it was suggested, the requirement that submarines navigate on the surface, 154 but did not extend to the levying of dues on 155 passage. According to the Harvard Research, criminal jurisdiction over foreign vessels in the territorial sea, the subject of the Franconiacase, was exercisable by the coastal State only where "the act has conesquences outside the vessels and tends to disturb the peace, order or
147 Supra n. 9, arts. 1 and 7.

148 Supra n.
149 150 151 152
12, art. 6.
Ibid., art. 11. Supra n. 11, art 10.
Draft Convention, art. 14. Draft Convention, art. 22.

295. 296.
153Comments, 154Comments,
155 Id.

5 tranquility of the state."' 1 6 This limited grant of criminal jurisdiction was explained as being related to the more fundamental right of innocent passage and was not undue interference with such passage. 157 Civil jurisdiction was exercisable only in respect of "an act committed by the vessel during the course of that innocent passage and not relating solely to the internal economy of the vessel. 1 58 Absent special agreement, the coastal State had no jurisdiction over foreign warships and other public vessels, though such vessels must observe local regulations and quit the territorial sea when requested.15 9 In similar vein, the 1926 amended Draft Convention provided for criminal jurisdiction only for offences whose consequences are not confined to the vessel and which disturb "the peace or public order" of the territorial sea; 160 and foreign vessels passing through territorial waters "shall not thereby become subject to the civil jurisdiction of the riparian State.",16 1 The Institut's rglement allowed the exercise of criminal jurisdiction only where the effect of the act extended beyond the vessel and affected the "tranquillit6 publique" of the coastal 1 State 162 and denied any civil jurisdiction. 63 The International Law Association's draft Convention likewise permitted the exercise of jurisdiction only in respect of acts which took effect outside the vessel 164 and involved the public order or the peace of the coastal State. The Harvard team was clearly troubled on how to characterize and define the rights that States claimed and exercised beyond their immediately adjacent waters. 165 To reconcile three-mile marginal waters with extra-marginal powers, the draft Convention recognized a right in a coastal State "to take such measures as may be necessary for the enforcement within its territory or territorial waters of its customs, navigation, sanitary or police laws or regulations, or for its immediate
156 Draft Convention, 157 Comments, 297.

158
159
art. 15.

Ibid., art. 19.
Supra n. 9, art. 9. Id. 162 Supra n. 12, art. 7. 163 Id. 64 1 Supra n. 11, art 11.
160
161
165 See
the discussion in Comments, 251 and 334-335.
Territorial Waters protection. ,166 This contiguous zone was not defined in miles from shore, but rather "by the necessity of the littoral state and by the connection between the interest of its territory and the acts performed on the high sea., 167 Fisheries were not among the interests to be protected, such protection being desirable but, to the Harvard team, 8 16 clearly de legeferenda. The 1926 amended Draft Convention provided that, beyond territorial waters, States "may exercise certain administrative rights on the ground either of custom or of vital necessity. There are 169 included the rights of jurisdiction necessary for their protection." Rights of exclusive economic enjoyment were excluded from this contiguous zone of indeterminate width, and fisheries were to be regulated by the existing law. 170 The Institut's rglement, while recognizing coastal State jurisdiction over "une zone suppl~mentaire contigue" in the interests of security, permitted enforcement of 171 neutrality, police, sanitary, customs and fishing regulations. Subsequent Footprint Thus, there can be no doubt that the trend, of which the Harvard Research was a part (but only a part), contributed to later thinking about the territorial sea and to later codification projects. The zones (territorial sea, contiguous zone), the concepts (sovereignty, rather than territory or property, for the territorial sea, jurisdiction for the contiguous zone), and the rights of coastal States (to regulate navigation and exercise some jurisdiction in the territorial sea, to enforce some regulations in the contiguous zone) and other States (innocent passage and limited jurisdictional interference from the coastal State in the territorial sea, very limited interference in the contiguous zone) and even the language of the 1920s' codification projects survived and became accepted in the literature of international law.
166 167
168

Comments, 334.
Id.
169 Supra n. 9, art. 2. 170 Id. 171Supra n. 12, art. 12.
Harvard Research on International Law The League of Nations Codification Conference of 1930 may have failed, for political reasons largely related to the extent of the territorial sea and the existence and nature of a contiguous zone, to adopt a convention on the territorial sea, 172 but, as Manley 0. Hudson, who attended as an adviser to the American delegation, said, "it conducted a very useful exploration; it brought into the open the existing divergences of view; and it may have paved the way for a more fruitful effort to be made at some future time." 173 Yet, at The Hague in 1930, the Harvard Research played a part. Hunter Miller, an American Vice-President of the Conference, reported that a volume of the Harvard draft Convention and Comments on Territorial Waters (and on Nationality and State Responsibility) "was in constant use by the delegations at The Hague generally ... and expressions of appreciation of the learning and public spirit which made such a work possible were very frequent."' 1 74 There are some clear similarities between the Harvard draft Convention and the draft articles prepared at The Hague by the two subcommittees of the Territorial Sea Committee charged with the drafting of a convention.17 5 It is worth remembering that there are also striking similarities between the Harvard draft Convention and the work of the League of Nations Committee of Experts and the other private codification proposals of the 1920s, so it is difficult to identify the precise part the Harvard Research played in the deliberations at The Hague. The International Law Commission's Survey of InternationalLaw of 1949, in relating the work already done on the territorial sea, particularly the preparatory work undertaken for the League's Codification Conference, considered the area suitable for codification by the
172
See Final Act of the Conference for the Codification of International Law
1930, L.N. Doc. V.Legal.1930.V.7; reprinted in 24 Am. J. Int'l L. (Supp.) 169 (1930), especially on the territorial sea in L.N. Doc. V.Legal. 1930.V.9; reprinted ibid. 234. 173 Hudson, The First Conference for the Codification of International Law, 24
Am. J. Int'l L. 447 at 458 (1930). 174 Miller, The Hague Codification Conference, 24 Am. J. Int'l L. 674 at 674 (1930). 175 See Report of the Second Committee, Annex I and Annex 11,in the Final Act of the Conference for the Codification of International Law 1930, supra n. 172.
Territorial Waters ILC. 7 6 Later that year, the General Assembly instructed the ILC to 177 prioritize its work on the territorial sea. The Commission worked on the subject from 1952 to 1956, during which it produced its draft articles and commentaries. 178 In that time, the Dutch special rapporteur, J.P.A. Franqois, wrote a total of three
reports and a final report. 179 It is striking that there is no reference to
the Harvard Research in any of these reports. That may reflect as much on Franqois as it does on the Harvard Research, particularly when there is so little reference in his work to any other authorities. 8 0 He does, however, rely heavily on the 1930 Codification Conference, 181 cited frequently (on twenty-six occasions) in his first two reports, but not thereafter. That comes as no surprise when one realizes that 1 2 Franqois was rapporteur to the Conference's second committee, 1 dealing with the territorial sea. In defense of Franqois, it is highly probable that, having been involved with the territorial sea since The Hague conference, he saw no need to revisit sources predating 1930, particularly as these sources had been known to those at The Hague. While the Harvard Research had no hesitation in opting for three miles as the extent of the territorial sea, the failure on the part of States to agree a limit to the territorial sea was the principal reason for 3 18 the failure of the territorial waters' part at the 1930 Conference. When the matter arose again in the 1950s, the ILC encountered the same tension between those States wishing to keep the territorial sea with small, i.e. three mile, limits and those wishing a more extensive
176 U.N. Doc. A/CN.4/ /Rev.1, 43-44. 177 G.A. Res. 374 (IV) of 6 December 1949. 178 1956 11LL.C. Yb. 256.
179
1952 III.L.C. Yb. 25; 1953 III.L.C. Yb. 57; 1954 IILL.C. Yb. 1; 1956 11 LL.C. Yb. 1. i80 And some of these references are odd. He gives identical quotations from Edwin Borchard on two occasions (1952 IILL.C. Yb. 31 and 1953 IILL.C. Yb. 64), citing the quotation as Proceedingsof the American Society of International Law, 1930, p. 62 and Proceedingsof the American Society of International Law,
1940, p. 62, when in fact the quotation comes from Borchard, Resources of the
Continental Shelf, 40 Am. J. Int'IL. 53 at 61 (1946). 181 1952 IILL.C. Yb.25 29, 30, 33, 35, 37, 39-43; 1953 III.L.C. Yb. 59 60, 66-75. 182 L.N. Doc. V.Legal.1930.V.9; reprinted in 24 Am. J. Int'l L. (Supp.) 234 (1930). 1' Hudson, supra n. 173, 455-456; Miller, supra n. 174, 686.
Harvard Research on International Law zone. In its final report, the ILC acknowledging that "international practice is not uniform as regards the delimitation of the territorial sea," 184 and contented itself with the bland formulation that "international law does not permit an extension of the territorial sea beyond twelve miles. 185 The Geneva Convention on the Territorial Sea and Contiguous Zone of 1958186 retreated further from certitude, declaring merely that the territorial seas' outer limit was a line drawn at18a 7 distance from the coast equal to the breadth of the territorial sea, without saying what that breadth was to be. However, it is possible to discern some limit in the Geneva Convention. In delimiting the contiguous zone, a zone by definition "contiguous" to the territorial sea, it set the limit at twelve miles, 188 thereby effectively reverting to the ILC's absolute maximum of twelve miles (or, in truth, something slightly less if a State is to have a contiguous zone) for the territorial sea. By the time of the Third U.N. Conference on the Law of the Sea, State practice had moved much more towards a limit of twelve miles for the territorial sea and State concern had become far more directed towards extensive resource zones. 8 9 As a result, the UN Convention on the Law of the Sea 1982 had little difficulty promulgating a twelve-miles rule.1 9 Yet, in appraising the contribution that the Harvard Research made to later attempts to codify the law of territorial waters, the Research must get at least a passing grade. It anticipated all of the major issues and its conclusions, while not necessarily adopted, can be discerned in the provisions that were adopted. What is noticeable is that the later codifications were immeasurably more detailed. So, in relation to baselines for the territorial sea, while the Harvard Research identified the low-water mark as the normal baseline1 91 and proposed a ten-mile closing line across the mouths of bays and rivers,' 92 the Geneva Convention provided more details on baselines,
184
18 6
Art. 3(1) of the Final Draft Articles, 1956 IILLC. Yb. 265.
art. 3(2). Supra n. 13.
185 Ibid.,
187 Ibid., art. 88 Ibid., art. 89 See, e.g.,
6.
24(2). Churchill and Lowe, The Law of the Sea (3rd ed.) 79. 190 Supra n. 14, art. 3. 191Draft Convention, art. 2. 192Ibid., art. 5.
Territorial Waters agreeing on the low-water mark as the normal baseline, 193 but permitting straight baselines for deeply indented coasts or coasts fringed with islands 194 and mandating 24-mile closing lines for bays. 95 Just as an island generated its own marginal sea under the Harvard draft Convention, 196 so under the Geneva Convention an island had its own territorial sea. 197 The Harvard Research anticipated the Geneva Convention in declaring freedom on navigation through straits con8 necting two parts of the high seas. 9 The fixing of a 12-mile territorial sea in the U.N. Convention on the Law of the Sea, with its potential impact on a large number of straits used for international navigation, resulted in an elaborate rdgime for a right of transit passage through international straits in that Convention.' 9 9 The right of innocent passage is briefly articulated in the Harvard draft Convention, 0 0 more extensively described in the Geneva Convention 20 ' and even more extensively described in the U.N. Convention, 0 2 with detailed activities that are not innocent and detailed regulations that may be adopted by the coastal State. The Harvard Research stated that there was "no reason for freedom of 0 innocent passage for vessels of war., 2 3 Recognizing that some States required prior notification or authorization for the passage of warships through their territorial sea,2 4 the Geneva Convention effectively
193 Supra, 194
n. 13, art. 3. See also the U.N. Convention on the Law of the Sea
1982, supra n. 14, art. 5.
Ibid., art. 4. See also the U.N. Convention on the Law of the Sea 1982, supra
n. 14, art. 7. 195Ibid., art. 7. See also the U.N. Convention on the Law of the Sea 1982, supra n. 14, art. 10.
art. 7. 10. See also the U.N. Convention on the Law of the Sea 1982, supra n. 14, art. 121; and also Part IV (arts. 46-54), which has extensive rules on archipelagic baselines, archipelagic waters and the right of passage through these waters. 19' Draft Convention, art. 10; Geneva Convention, supra n. 13, art. 16(4). 199 Supra n. 14, Part III (arts. 34-45). 200 Draft Convention, art. 14.
201
20
196 Draft Convention, 197 Supra, n.13, art.
2Supra n. 14, arts. 17 26.
Supra n. 13, arts. 14 17. Comments, 295.
203
204 See the I.L.C. 1956 commentary, 1956 1JI.L.C. Yb. 276-277.
Harvard Research on International Law fudged the issue, providing that, while, as a general principle, "ships of all states" enjoy the right of innocent passage,2" 5 warships are required to abide by the coastal State's regulations regarding such passage .206 The attempt by the Harvard Research to subject foreign vessels and their crew to the criminal jurisdiction of the coastal State only when acts extend beyond the vessel to the "peace order and tranquility" of the State20 7 finds a place in the Geneva Convention.20 8 Likewise, the thrust, if not the wording, of the Harvard draft Convention on the exercise by the coastal State of civil jurisdiction over 0 foreign vessels 2 9 finds a place in the Geneva Convention. 2 10 The Harvard Research's articulation of the right of hot pursuit of foreign vessels from the territorial sea 2 11 found its way, in expanded form, into the Geneva Convention on the High Seas.2 12 Conclusions The picture, then, of State practice and juristic thinking throughout the 19th Century and into the early years of the 20th Century, is of some confusion as to a State's rights in the waters adjacent to its coast. While there was little doubt that every State had rights in these waters, it was unclear as to the nature of these rights and their physical extent; and practice and opinion varied as to what particular rights were available to States. In relation to territorial waters, the 1920s are remarkable for two things: an emerging interest in territorial waters as a subject for investigation by scholarly legal
205
Supra n. 13, art. 14(1). See also the U.N. Convention on the Law of the Sea
206 Ibid., art. 23. See also the U.N. Convention on the Law of the Sea 1982,
1982, supra n. 14, art. 17.
supra n. 8, art. 30. 207 Draft Convention, art. 15. 208 Supra n. 13, art. 19. See also the U.N. Convention on the Law of the Sea 1982, supra n. 14, art. 27. Draft Convention, art. 16. 210 Supra n. 13, art. 16. See also the U.N. Convention on the Law of the Sea
209
1982, supra n. 14, art. 28. Convention, art. 21. 212 450 U.N.T.S. 82, art. 23. See also the U.N. Convention on the Law of the Sea
211 Draft
1982, supra n. 14, art. 111.
Territorial Waters
153
bodies and an emerging consensus as to the nature of each State's rights in them, the particular rights available and even the distance seaward within which they might be exercised. In this flurry of activity, the Harvard Research was but one player-and not even a particularly significant one at that. Its thinking on territorial waters, and even the words it used, had been thought and said before. That, of course, may be no more than an admission that State practice was coalescing, something that any learned body could discern; and that the Harvard Research corroborated that academic trend, its commentaries carefully and elegantly articulating its bases and justifications. It is difficult to discern any significant and enduring legacy of the Harvard Research on Territorial Waters, beyond the striking similarities between what it proposed and what has now become the conventional (and customary) law on the territorial sea.
Chapter 5
DIPLOMATIC PRIVILEGES AND IMMUNITIES

Eileen Denza
The Contemporary Significance of the Harvard Draft Convention

The draft Convention on Diplomatic Privileges and Immunities published in 1932 by the faculty of the Harvard Law School was much the most valuable and persuasive of the Regulations, Codes and Projects on diplomatic law which had emerged during the previous century. There were two main reasons for its success-first the comprehensive research carried out into state practice and into earlier codification attempts, and secondly the reliance on a functional approach rather than on any theory of diplomatic status. As the Introductory Comment makes clear:
The draft is frankly pragmatic, and the observation of the Committee of
Experts has been borne in mind, namely, that the basis of diplomatic privileges and immunities is "the necessity of permitting free and unhampered exercise of the diplomatic function and of maintaining the
dignity of the diplomatic representative and the State which he repre-
sents, and the respect properly due to time-honoured traditions." Diplomatic intercourse is a normal function of states in the international community. On the basis of reciprocity, diplomatic privileges and immunities are the accepted means by which such normal functioning is assured.
The codification of modern diplomatic law began in 1815 when the Congress of Vienna through a hotly contested Regulation drew up rules for classification of the categories of diplomatic agent and for their precedence. Vattel listed the categories as ambassadors ordinary and extraordinary, envoys ordinary and extraordinary, residents, ministers, ministers plenipotentiary, consuls, agents, deputies, commissioners and chargds d'affaires having a public character.' The
Le Droitdes Gens, IV.VI paras. 71-75.
Harvard Research on International Law Vienna Regulation boldly limited these to three (ambassadors including legates and nuncios; envoys, ministers and others accredited to Heads of States; charg&s d'affaires accredited to ministers of foreign affairs). 2 Article 4 also replaced the old rules whereby precedence among ambassadors was determined by the rank of the sending State with the provision that it was to be determined by the date of official notification of arrival. The rules drawn up at Vienna in 1815 and in Aix-la-Chapelle in 1818 were however limited to questions of titles of heads of mission and precedence between them (though the political importance of these at that time was much greater than it is now because of the rights they entailed of access to the sovereign of the receiving State). Efforts to codify diplomatic privileges and immunities on a wider basis continued with the Codes of Bluntschli in 1868 and Fiore in 18903 and then, at international level, with the Regulation adopted in Cambridge in 1895 by the Institute of International Law. 4 This Regulation proposed that although diplomats should be entitled to continuing immunity for official acts, immunity for personal acts accorded to them and to their families should end forthwith on termination of their official functions with no additional period to allow them to leave the receiving State. No provision was made for personal inviolability, for immunity for nationals of the receiving State or for protection of a diplomat in transit through a third State. These highly restrictive provisions did not correspond to the practice of the period as illustrated by individual cases, and in 1929 in New York the Institute of International Law produced a substantially revised Regulation which more closely reflected contemporary practice. The 1929 Regulation also provided that waiver could be made by the sending State and should be established through the statement of the head of mission. There was no uniformity on the extent of immunities to be given to diplomats in transit-and the 1929 Regulation in giving them the complete range of immunities clearly went beyond established practice and beyond what was likely to be acceptable to States generally. In practice, security of transit through
2
Garden, Traite complet de diplomatie (1833), 14. 26 Am. J. Int'lL (Supp.) 144 at 153 (1932). See also the HarvardResearch in l'Institutde DroitInternational1895-1896, 240-244.
InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 4.
4Annuaire de
Diplomatic Privileges and Immunities dangerous States was usually guaranteed by individual safe-conduct or by bilateral treaty. The first multilateral treaty regulating diplomatic relations was the Havana Convention on Diplomatic Officers adopted in 1928, and reflecting preparatory work by the Pan-American Union, by the American Institute of International Law and the International Commission of American Jurists.5 The lead in codification taken by American States reflected the prevalence of provisions on diplomats in bilateral treaties among newly independent States in Latin America. In Europe by contrast, with longer traditions of diplomacy and extensive cover of the subject by writers on international law, provisions in bilateral treaties were limited to most-favoured-nation clauses and to specific issues such as safe-conducts. The Havana Convention was intended to set out "minimum standards" beyond which States could by custom or individual concession extend more generous treatment, and made no attempt at progressive development of the law. The Parties stated in the Preamble that "until a more complete regulation of the rights and duties of diplomatic officers can be formulated," they had "decided to conclude a Convention incorporating the principles generally accepted by all nations." Junior mission staff, for example, were accorded inviolability, but not immunity from jurisdiction-which was accorded only to heads of mission. Although fourteen States in Latin America eventually became parties to the Havana Convention, the Convention did not accurately reflect the treatment accorded to diplomats even among those States, and its terms were confusing and undefined as was its relationship to bilateral agreements containing provisions more favourable to diplomatic missions.6 All these instruments were therefore limited in their cover of the rules of diplomatic law, in their potential participation by States and in the accuracy of their formulation of the contemporary practice of national courts and of ministries of foreign affairs. The Harvard draft Convention by contrast made a giant leap forward. It can clearly be seen as the template on which the Vienna Convention on Diplomatic
' All these instruments are published in the Harvard Research, supra n. 3.
6
Young: The Development of the Law of Diplomatic Relations, 1964 B.YLL.
141 at 173 175.
Harvard Research on International Law Relations was based thirty years later. It built not only on the successsive Regulations and treaties outlined above but also on case lawparticularly that of English and United States courts-it contained elements of progressive development which were realistically based on contemporary state practice, and its provisions were clearly drafted and comprehensive. Innovations in the Harvard Draft Convention: Personal Immunities Article I of the draft Convention, Use of Terms, sets out and defines terminology which subsequently became general: "sending state" and "receiving state,". "member of a mission," "administrative personnel" and "service personnel." "Chief of mission"-still used by the United States-became "head of the mission" under the Vienna Convention, "member of a mission" meant only those authorized by the sending State to take part in the performance of diplomatic functions, and "service personnel" comprises what under the Vienna Convention are the two separate categories of "members of the service staff' and "private servant." Otherwise, the categories now familiar from the Vienna Convention are clearly set out and distinguished. It seems strange that, while for several centuries there were numerous attempts among States to formulate an acceptable classification of heads of mission, there was until the Harvard draft Convention no attempt to define categories of junior staff. While in earlier times the "suite" comprised diplomatic secretaries, domestic staff and families with little or no distinction regarding entitlement to privileges and immunities, proliferation in numbers and a more rigorous approach to immunities caused uncertainty as to the position in many countries. A clear differentiation between categories of personnel and their families was therefore not merely a technicality but the first step to a more rational approach to their different entitlements, and this the draft Convention went on to propose. Articles 17 and 19 limited inviolability and immunity from jurisdiction to diplomatic staff (members of a mission) and their families, while Article 23 provided that Subject to the provisions of this convention, a receiving state may exercise jurisdiction over any member of the administrative or service
Diplomatic Privileges and Immunities

personnel of a mission, only to an extent and in such a manner as to avoid undue interference with the conduct of the business of the mission.
Writing in 1947 on the immunities of junior mission staff, Joyce Gutteridge gives an extensive survey of the practice of many countries, concluding reluctantly that "on this matter the law of nations speaks with many tongues, and if we seek guidance from the writers and authorities on international law we are still without a clear light on our path." She went on to submit that the principles which could afford guidance were to be found in the Harvard draft Convention, with its emphasis on the duty of the receiving State not to interfere with the proper functioning of diplomatic missions. Writing at a time when in the United Kingdom the Diplomatic Privileges Act 1708 together with British practice regarding criminal proceedings afforded complete immunity for junior staff of all categories in respect of personal acts as well as official acts, she argued that the Harvard draft set out the principles on which immunity for diplomatic, clerical and service staff should be accorded under international law. It applied the principle that immunities existed not for the personal benefit of the individual but in the interests of the diplomatic mission. 7 Even at the Vienna Conference and for some years thereafter, the immunities to be accorded to junior mission staff remained controversial, and the Vienna Convention accorded for functional reasons wider immunities to administrative and technical staff than the Harvard draft Convention. But the principles formulated in the draft were undoubtedly the basis for the modern law. Article 18 of the draft Convention also provided that a receiving State might not "impose liability on a person for an act done by him in the performance of his functions as a member of a mission or as a member of the administrative personnel." The Commentary made clear that this provision was designed to avoid the implications of exterritoriality-dismissed at the outset as a theoretical justification for privileges and immunities-and also to clarify the distinction between the official and the non-official acts of members of a
7 Gutteridge:
Immunities of the Subordinate Diplomatic Staff, 1947 B.YLL. 148
at 156 159. See also Wilson: Diplomatic Privileges andImmunities (1967), 38 45 on determination of categories, chap. 7 The Official Diplomatic Staff and chap. 8 The Retinue and Families.
Harvard Research on International Law diplomatic mission. As to the importance of dismissing the doctrine of exterritoriality, the Commentary suggested that in postulating the absence of the diplomatic agent from the territory of the receiving State it led necessarily to the view that he was exempt from its legislative competence as well as from its enforcement jurisdiction. This would imply that even in the event of waiver of immunity, the courts of the receiving State would not be competent to try an offence committed by a diplomat in his personal capacity. The immunity to be accorded in respect of official acts on the other hand was permanent. "Insofar as the member acts in his official capacity, his immunity confounds itself with that of the sending state itself, and depends, not upon the person of the representative, but upon the intrinsic nature of the act performed. International law imposes upon the courts of the receiving state an incompetence ratione materiae in the case of public acts." In contrast to immunity ratione personae,which terminated with the end of the appointment and functions of the diplomat, immunity for official acts reflected a general principle of international law and applied to "all public acts, by whomsoever performed, and to all state agents, whether diplomatic or otherwise." The Harvard draft Convention provisions on immunity, taken as a whole, therefore offered a coherent basis for upholding a widely accorded immunity for acts performed on behalf of the sending State (seen as a form of state immunity), cutting back personal immunities for junior staff of a diplomatic mission, and distinguishing between official and private acts as regards the termination of immunity. These principles were substantially reflected in the Vienna Convention and accepted for several decades thereafter. They have however been more critically re-examined in recent years in the light of the reduction in the extent of state immunity from civil jurisdiction and the various attempts to subject heads of state and government ministers to criminal proceedings in the domestic courts of other States.8 Article 18 in according exemption ("shall not impose liability") for official acts is however no longer reflected in international law. The
' See, for example, the Pinochet cases, especially R v. Bow Street Metropolitan
Stipendiary Magistrates,ex parte Pinochet (Amnesty InternationalIntervening) (No. 3) [2000] AC. 151; Arrest Warrant of ]] April 2000, Democratic Republic
of Congo v. Belgium, 2002 1 C.J. Rep. 3.
Diplomatic Privileges and Immunities modern practice is to treat both forms of immunity-personal immunity and immunity for official acts-as being procedural in character so that they are both capable of being waived. Waiver in respect of immunity for official acts may be a relatively rare occurrence but it does occur-particularly where the individual in question is no longer in power or has been dismissed-and in such a case the receiving State has competence to try the action. 9 New Duties in Respect of Mission Premises Article 2 of the draft Convention imposed a duty on receiving States to 'permit a sending state to acquire land and buildings adequate to the discharge of the functions of the latter's mission, and to hold and dispose of such land and buildings in accordance with the law of the receiving state'. Although there was no record, according to the Commentary, that any State had refused to permit acquisition of property for mission purposes, many States (including the District of Columbia) did not permit holding of land by foreign nationals or entities, while others sought to control the location of foreign embassies within a single precinct. Article 2 was intended as a restatement of existing practice, but it became clear during the Vienna Conference that it was of real practical importance. Article 21 of the Vienna Convention reflects Article 2 of the Harvard draft Convention and the Commentary on it-making clear, for example, that a receiving State is not obliged to alter its domestic law so as to permit acquisition by a foreign State of real property by any special methods or under any unusual form of tenure. On the other hand it is not open to the receiving State to use its powers of control over real property to frustrate the reasonable requirements of a diplomatic mission. In many States planning controls have substantially increased over the past seventy years, and the security threat to embassies from potential terrorist attacks means that their location is of serious concern not only to sending and receiving States but also-as recent 9 See Wickremasinghe, Immunities enjoyed by Officials of States and International Organisations, chap. 13 in Evans (ed.) InternationalLaw (2nd) at 397. For an example of waiver of the immunity of a former Head of State see US v. Noriega and Others, US District Court, Southern District of Florida, 1990, 99 I.L.R. 143.
Harvard Research on International Law protests concerning the United States Embassy in London have shown-to neighbouring property owners. In both the United States10 and the United Kingdom' there have been changes to domestic legislation to facilitate control by the authorities of the receiving State and there have been a number of international agreements relating to the acquisition or use of buildings as mission premises. 1 2 Article 2 of the Harvard Draft-which was the first provision of its kind-has therefore been replaced to some extent by law of a harder character, but on a basis which remains entirely consistent with the balance which it proposed between the interests of the sending and the receiving State. It may also be observed that the formulation of Article 3 on Protection of Premises contained an innovation in that it distinguished clearly between the "negative duty" in paragraph I for the receiving State to prevent its agents from entering the premises occupied or used by a mission or occupied by a diplomatic agent without the consent of the head of the mission, and the "positive duty" in paragraph 2 which required that A receiving state shall protect the premises occupied or used by a mission, or occupied by a member of a mission, against any invasion or other act tending to disturb the peace or dignity of the mission or of the member of a mission; provided that notification of such occupation or use has been previously given to the receiving state. Lyons, writing in 1953,13 comments that the Harvard draft Convention "converts the immunity of diplomatic premises into a positive duty of the receiving State to which the envoy is accreditted"-which is correct as regards the formulation of paragraph 1. Paragraph 1 does not merely provide-as does Article 22(1) of the Vienna Convention-that the agents of the receiving State may not enter diplomatic premises except with the head of the mission, it 0 Public Law 88-639 approved 13 October 1964; Foreign Missions Act 1982, Public Law 97-241, 22 US Code 4301 enacted 24 August 1982. " Diplomatic and Consular Premises Act 1987, c. 46. 12For details see Denza, Diplomatic Law (2nd), 109-111; Barker, The Abuse of Diplomatic Privileges and Immunities (1996), 141 144; Barker, The Protection
of Diplomatic Personnel(2006), 14 16; The Times 18.12.2000 and 27.7.2006 on possible new site or road closures for US Embassy in London. 13 Lyons: Immunities other than Jurisdictional of the Property of Diplomatic Envoys, 1953 B.Y.LL. 116 at 128.
Diplomatic Privileges and Immunities imposes a positive duty to prevent entry by such agents-described in the Commentary as "persons clothed with governmental authority." The distinction between the negative duty whereby the law of the receiving State may not be enforced on diplomatic premises and the positive, or "special" duty of protection has become clear in modern diplomatic law and is reflected in the formulation of paragraphs I and 2 of Article 22 of the Vienna Convention. Parry, commenting on the meaning of the term inviolability, suggests that it "implies immunity from all forms of interference, whether under colour of law or otherwise, and connotes a special duty of protection, whether from such interference or from mere insult, on the part of the receiving State."' 14 It does not appear that this distinction was made in state practice before the twentieth century-the emphasis being entirely on the "negative duty" precluding law enforcement. The positive duty to protect has become of great practical importance with the rise of the popular tendency to demonstrate before or to attack embassies as symbolic of unpopular policies of the sending State. The clear formulation of both aspects of the modern law of inviolability may be traced back to the Harvard draft. The Commentary is also helpful in that it emphasises that the duty to protect does not make the receiving State "an absolute guarantor of the peace or dignity of the mission in every conceivable set of circumstances, comparable with its situation." The receiving State must provide adequate means of protection, but Even so it might not be able to prevent all acts which would tend to
disturb the peace or dignity of the mission. The draft in this paragraph undertakes to provide a maximum measure of the duty of protection by
the receiving state without absolutely insuring prevention.
The extent of the steps to be taken to discharge the duty of protecttion, and the balance to be struck between protection and the human rights of protesters to demonstrate or express hostile opinions has remained difficult under the regime of the Vienna Convention-but the principles articulated in the Harvard draft remain apposite. A corresponding new duty was also imposed by Article 7 of the Harvard draft Convention to protect the premises and archives of a discontinued mission. Paragraph 1 required the receiving State to
14VII British Digest of International Law, 700.
Harvard Research on International Law "respect and safeguard the archives of the mission and the interest of the sending state in the premises and property held by the sending state for the purposes of its mission." Paragraph 2 permitted the sending State to entrust to another diplomatic mission, acceptable to the receiving State, custody of its archives, premises and property. These provisions reflected state practice, but they also clarified certain points. It became clear, for example, that the duty to respect and safeguard fell short of continuing to treat the empty premises as inviolable, and also that the State entrusted with protection of archives and premises of a discontinued mission must be one acceptable to the receiving State. Article 7 of the Harvard draft Convention was reflected without substantive change in Article 45(a) and (b) of the Vienna Convention, and the obligations it formulated have remained of substantial practical importance-particularly in view of the increasing practice of discontinuing a diplomatic mission for political or security reasons rather than formally breaking diplomatic 15 relations. Archives of the Mission Article 5 of the Harvard draft Convention provided that A receiving state shall protect the archives of a mission from any violation, and shall safeguard their confidential character, wherever such archives may be located within the territory of the receiving state,
provided that notification of their location has been previously given to
the receiving state.
Under customary international law, the protection to be extended to diplomatic archives not physically within mission premises or in the custody of a diplomatic couriers was somewhat uncertain. On several occasions where diplomatic relations were broken, the seizure of diplomatic despatches or papers contrasted with the respect shown towards the person of a diplomat being expelled. For this reason state practice was that following breach of relations the archives were either destroyed or entrusted to a protecting power since otherwise their continuing confidentiality could not be guaranteed.1 6 Article 14 of the Havana Convention on Diplomatic Officers was therefore
15 See
Denza, supra n.12, 392 399.
16 For examples of violation of the confidentiality or archives, see Denza, supra
n. 12,157 158.
Diplomatic Privileges and Immunities going beyond practice in requiring inviolability to be given to the papers, archives and correspondence of the mission. The Harvard draft provision was somewhat more limited and did not in terms provide inviolability for archives but only special protecttion from violation and safeguarding of their confidential charactera duty similar to that required in the case of communications. The Commentary made clear that Article 5 went beyond existing customary international law given numerous examples of failure to protect mission archives, but it observed
When in earlier centuries an important part of the business of a diplomat
was acquisition of information, to which he was not properly entitled, by methods not admitted as proper if used by one other than a diplomat or state agent, a receiving state might have been regarded as to some extent excused if it sought by dubious means to gain information from the correspondence of a foreign mission. The view then taken was however that "the normal functioning of modern international intercourse requires a clearer acknowledgment of the confidential character of diplomatic correspondence." The receiving State should be under a duty-which might require domestic legislation-to do more than protect property rights in the archives, though this duty fell short of preventing potentially embarrassing publication in a newspaper. Article 24 of the Vienna Convention, drafted in the light of later developments such as the case of Rose v. The King' 7 went beyond the Harvard draft Convention in several respects-according inviolability in specific terms to archives "at any time" so as to make clear that their character as archives did not lapse on the discontinuance of diplomatic relations, and omitting the condition that notification of their location had been previously given to the receiving State. Protection of archives from disclosure-whether to local newspapers or to domestic courts or legislative bodies-is of course of the greatest practical importance if the archives have been stolen (as in the Rose case), leaked or lost. More difficult is the question whether they should be protected if they have been disclosed by an official with actual or ostensible authority, or simply sent to a third party such
17 [1947] 3 Dominion Law Reports 618; 1946 A.D. No. 76.
Harvard Research on International Law as an independent adviser to the embassy.1 8 The Harvard draft Convention was in accordance with the trend towards greater protecttion for the confidentiality of diplomatic archives although it did not go as far as is now believed appropriate or resolve the many difficultties of definition which arise. Wider Rights of Free and Secret Communication Article 14 of the Harvard draft Convention set out the rights of a diplomatic mission to freedom of communication in more precise and extensive terms than had been done in any previous text. The receiving State was obliged to freely permit and protect official communications, not only between the sending State and its diplomatic mission abroad but also but also between the mission or diplomatic staff of the mission and other officers of the sending State, between a mission and a mission of another State in the same receiving State and between a mission and other diplomatic missions and consulates of the same sending State in other States as well as agencies of international organisations. This foreshadows the comprehensive provision on free communication in Article 27(1) of the Vienna Convention on Diplomatic Relations. The methods which might be employed were more extensive than under the Vienna Convention-"whatever available means, including the employment of messengers provided with passports ad hoc and the use of codes and cipher" whereas entitlement under the Vienna Convention is limited to "all appropriate means including diplomatic couriers and messages in code or cipher." The Harvard Commentary made clear that this wider entitlement to communications has generally been regarded as a matter of comity only, and probably has no long established practice for its support. With the closer relationships of states and the speed of modem communications, together with the increasing number of negotiations which are not merely bilateral, it would appear that normal international intercourse requires that commu18 See
UK House of Lords decision in Shearson Lehman Bros. v. Maclaine
Watson & Co. Ltd. and others (InternationalTin Council Intervening) [1988] 1 AllE.R. 116; 77 LL.R. 145 (judgments of lower courts at 77 LL.R. 107 and 124).
See also controversy between Embassy of Saudi Arabia in Washington and House Committee on Government Reform in 2002 over right of Congress to compel disclosure of mission documents held by public relations advisers to the
Embassy, 2002 Digest of US Practicein International Law 567.
Diplomatic Privileges and Immunities

nications between the missions of the same state in various capitals be unimpeded.
In the matter of communications, the Harvard draft Convention may be seen as a high-water mark of the recognition of "the doctrine of universal freedom of diplomatic communications." Even setting aside the restrictions on the use of codes and cipher which were imposed in wartime, the question of the right to free and secret communication was much more controversial by the time of the Vienna Conference. What has tended to make the right to free communication politically controversial in recent years is the imbalance between the technical means available to highly developed States and the more basic means used by poorer and often more unstable States, as well as the existence of highly sophisticated methods of undetectable interception of communications. Thus, during the Vienna Conference, the question of entitlement to operate diplomatic wireless was highly divisive because while highly developed States were already using it on a routine basis, developing States perceived it as a potential form of interference in their internal affairs. In more recent times, the possibility for rich States to implant bugs in embassy premises or vehicles and to eavesdrop from a long distance on conversations held within mission premises has meant that the sanction of reciprocity cannot in this context operate as it does in other areas of diplomatic relations. Modern practice in regard to the protection of free and secret diplomatic communications falls well short of the ideals reflected in the Harvard draft Convention.1 9 Transit through Third States There were no clear rules under customary international law as to whether a diplomat was entitled to a right of transit across third States on the way to or from his post or as to his entitlement to any privileges and immunities in a State of transit. To a large extent his right of transit depended on the possession of a safe-conduct-which might also be requested by and granted to any individual-or on guarantees under bilateral treaties-which would also have been unnecessary had there been any right under customary law. In the
19See Denza, supra n. 12, 177-182.
Harvard Research on International Law absence of safe-conduct or treaty, state practice and writers accepted that a diplomat had no legal entitlement to transit or to any degree of inviolability, although favourable treatment might be extended on a basis of comity. There were however a number of cases where courts in the United Kingdom and in New York took a more extensive view as regards entitlement to immunity from civil jurisdiction of a diplomat in transit. The view was taken in the Commentary to Article 15 of the Harvard draft Convention that freedom for the carrying on of international relations through the instrumentality of diplomatic agents is a common interest of all of the members of the international community. Article 15 therefore proposed that States should be under a duty to permit transit for a member of a diplomatic mission to or from his post in the receiving State and to accord him "such privileges and immunities as are necessary to facilitate his transit." The duty depended on recognition by the government of the transit State of the diplomat's sending State and on notification of the official character of the diplomat. If the diplomat broke his transit, he would not enjoy privileges or immunities except on a basis of comity, but the State of passage could not-except in time of war or insurrection-limit the diplomat in transit to any particular route. The Commentary made clear that the entitlement to transit was also dependent on possession of a passport issued by the sending State and a visa where required. The duty to permit a diplomat to transit to or from his post did not however survive or find its way into the Vienna Convention on Diplomatic Relations. The reason was that with improved methods of travel, and in particular air travel, there was less need of a right of passage and a transit State could determine in the context of a visa application whether it found transit of a particular diplomat acceptable or not. What remained essential to the effective conduct of relations was that if admitted, on whatever legal basis, the diplomat should not then be impeded in his transit. The duty in the Harvard draft Convention to "accord to him during the transit such privileges and immunities as are necessary to facilitate his transit" was therefore reflected in Article 40 of the Vienna Convention, as was the condition that the diplomat must be in possession of a visa where necessary. The functional approach to the grant of privileges and immunities
Diplomatic Privileges and Immunities remained the same, but its practical application changed to reflect the modern likelihood of point to point travel from sending to receiving State.2" Professional or Commercial Activity by a Diplomat Article 24(1) of the Harvard Draft Convention provides that
A receiving state may refuse to permit a member of a mission or a member of his family to engage in a business or to practise a profession within its territory, other than that of the mission, or to waive in behalf of such a person any of its requirements for engaging in a business or for practising a profession.
This provision reflected the general position that the practice of a professional or commercial activity by diplomats was disapproved of as being likely to interfere with the proper exercise of his functions and that receiving States could refuse to permit it. They did however retain discretion in the matter. It also became common for States to forbid their own ambassadors from trading or from having a second occupation while serving abroad, though again the prohibition was not universal and was a matter for the internal rules of the relevant diplomatic service. In Article 42 of the Vienna Convention on Diplomatic Relations the discretionary rule in the Harvard draft Convention was replaced by an absolute prohibition on diplomatic agents from practising for personal profit any professional or commercial activity. The proposal which became Article 42 was justified by Colombia who introduced it on the basis that it would give the sending State the assurance that their diplomats would limit their activities abroad to their official duties and would enhance the dignity of the diplomatic corps by protecting them from any suggestion that they were using their office to further their outside interests. But it may be argued that the discretionary rule in the Harvard draft Convention would in fact be more appropriate to a Convention mainly intended not to regulate the conduct of diplomats or their relations with their appointing government but relations between States. There have in fact been occasions where sending and receiving State have in effect agreed to waive the
20
See debate in International Law Commission, 1958. ILL. C. Yb. 103; Denza
supra n. 12, 366 369.
Harvard Research on International Law prohibition in Article 42 in order to secure the appointment of a particularly well qualified individual, and there are difficulties in defining the extent of the prohibition, which is not regarded as covering academic, literary or cultural activities. Article 24(2) of the Harvard draft Convention also took a discretionary approach to the question of immunity for professional and commercial activities, providing that A receiving state may refuse to accord the privileges and immunities provided for in this convention to a member of a mission or to a member of his family who engages in a business or who practises a profession within its territory, other than that of the mission, with respect to acts done in connection with that other business or profession. The reason for the discretionary approach was the uncertainty at the time as to whether immunity from civil jurisdiction for diplomats extended under customary international law to acts performed in the conduct of a business or profession. The Commentary on Article 24 noted that paragraph 2 represented a modification of existing practice, although there was sufficient doubt on the matter to make acceptable a provision excluding such actions from diplomatic immunity. Certainly an exception from immunity for professional and comercial activities was not then established in English or US cases, 2 1 though elsewhere such an exception was increasingly being added to national legislative provisions on diplomatic immunity. By the time of the drafting of the Vienna Convention, it had become clear that a discretionary approach to questions of entitlement to immunity was no longer appropriate, since it opened the way to political pressures on ministries and on national courts. States were by then ready to accept the assumption of jurisdiction by national courts of jurisdiction over disputes arising from professional or commercial activities by diplomats, as well as those arising from such activities carried out by family members and junior mission staff who are not subject in any way to the prohibition in Article 42. Article 31(1)(c) of the Vienna Convention therefore carried forward the tentative limitation set out in Article 24 of the Harvard draft and is in practical terms
21 See Taylor v. Best, 14 C.B. 487, 139 E.R. 201; Magdalena Steam Navigation
Company v. Martin, 2 EL. & El., 121 E.R. 36.
Diplomatic Privileges and Immunities probably the most important limitation on diplomatic immunity from civil jurisdiction.22
Official Lists
Article 11 of the Harvard draft Convention provided that
A sending state shall communicate to the receiving state, upon request of the latter, a list of the members of its mission, of their families, and of the administrative and service personnel.
Under customary international law there was no duty on sending states to submit lists of members of their diplomatic missions, or to notify the ministry of foreign affairs of appointments (with the exception of a prospective head of mission), of arrivals or of departures. It was however as a matter of common sense practice in most capitals for notifications to be made so that privileged treatment could be assured and for the ministry of foreign affairs to compile and publish a comprehensive list. As between capitals however, practice varied as to whether questions might be raised as to the inclusion of certain individuals or the total numbers for whom immunities were claimed and as to whether notification was a condition precedent for entitlement to immunity in any individual case. The significance of diplomatic lists submitted by ambassadors in the United Kingdom, for example, was explained to the court in the case of Engelke v. 2 Musmann 3 by the Attorney-General who said
The list is not accepted as of course on behalf of His Majesty; and after investigation it not infrequently happens that recognition is withheld from a person whose name appears upon the furnished list, either because his diplomatic status is in doubt, or because the number of persons for whom status is claimed appears to the Secretary of State to be excessive.
Article 11 of the Harvard draft was developed into the much more detailed notification provisions in Article 10 of the Vienna Convention-though even these provisions which cover notification of arrivals, final departures and termination of functions with the mission do not adequately solve all the problems which have arisen in many
22 See Denza, supra n. 12, 247 253. 23 [1928] A.C. 433 at 458.
Harvard Research on International Law countries over the commencement and termination of entitlement to diplomatic immunities. The provision in the Harvard draft was however the first attempt to standardise notification procedures on an international basis so as to provide the appropriate administrative framework for the grant of privileges and immunities. Provisions Reflecting Established International Rules There were of course a number of provisions in the Harvard draft Convention which did no more than codify a previously well-established rule of customary international law. Article 12, for example, set out the right of the receiving State to declare a diplomatic agent persona non grata without giving reasons and-if the request for recall is not complied with-to declare the functions of the unwelcome diplomat to be terminated (though strictly the receiving State may not "terminate" his functions but only refuse to accept him as a diplomat). Article 16 provided for privileges and immunities to begin "from the time of such person's entry upon the territory of the receiving state, or, if the person is already within the territory of the receiving state, as from the time of his becoming such a member." Article 20 provided for exemption for diplomats from customs duties or other import or export charges on articles intended for official use of the mission or for the personal use of the diplomats and their families. Article 22 set out a general exemption from taxes, whether national or local, with a few exceptions such as tax on movable property employed in a professional or commercial activity within the territory of the receiving State and "charges for special services" or "assessments for local improvements." Article 26 made clear provision for "renunciation" or waiver of any privileges or immunities. Waiver was to be made by the sending government if it concerned the head of mission and in other cases either by the sending government or by the head of mission. The Commentary explained that this formulation was chosen in order to accommodate divergent national practices as regards procedure. On the substance, "it is unanimously recognized that such an act cannot be performed without the authorization of the government of the sending state, since the immunity is not personal to the individual concerned." As to evidence of such authorization, a national court
Diplomatic Privileges and Immunities was not required to go behind an express statement by an agent-"in accepting the waiver of its accredited representative, it fulfils the obligation imposed upon the receiving state by international law." Blind Alleys Almost all the provisions of the Harvard draft Convention reflected established rules of customary international law or were progressive development on lines which were later accepted in custom or in the Vienna Convention. But there are two provisions of which this was not true. Article 21 on prohibited goods states that A receiving state may refuse to permit a member of a mission, a member of his family, or a member of the administrative or service personnel, to bring into its territory articles the importation of which is prohibited by
its general laws; or to take out of its territory articles the exportation of which is prohibited by its general laws.
It must be recalled that Article 18 of the Draft provided not merely a procedural immunity but a substantive exemption in respect of acts done in the performance of mission functions, so that in the absence of Article 21, members of diplomatic missions acting on the instructtions or with the approval of their own sending government would have been exempt from any prohibitions and restrictions on import and export set out in the law of the receiving State. The reason for singling out import and export restrictions from the general exemption was the existence in the United States at the time of the preparation of the draft of laws prohibiting the import of alcohol. It is clear from the Commentary that there was some uncertainty over the extent to which prohibition laws could be enforced against diplomatic missions: immunity from arrest was conceded, but the view had been taken that US domestic law did not prohibit search of diplomatic baggage or compel the admission of any property of diplomatic agents, and the Attorney General had stated that "the introduction of intoxicating liquor into the United States by foreign diplomats is contrary to law." Article 21 brings out clearly the unsatisfactory results which flow from the general exemption from liability accorded by Article 18. It was, even in the I930s, somewhat absurd to single out restrictions on import and export of alcohol as the only law of a receiving State
Harvard Research on International Law which applied in substance to foreign diplomatic missions and their members acting officially. By the time that the Vienna Convention was under negotiation, it had become accepted by writers and in state practice that the laws and regulations of a receiving State applied as a matter of substance to all conduct-whether official or private-of state agents and in particular diplomatic agents within the State's territorial jurisdiction. This result was compelled in part by the great increase in the overseas activities of most States-many of them actively engaged in purchasing property and investing abroad, promoting their own tourist and cultural industries, administering their domestic immigration laws. In a growing number of countries, States were no longer accorded immunity in respect of these overseas property or commercial activities. It was also realised that it would be absurd if a State could waive the sovereign immunity of its agents or the immunity of its diplomats in respect of official acts, while the agent concerned could then argue that the local court lacked competence to try him. Article 41(1) of the Vienna Convention therefore makes clear that "[w]ithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State." While it might be argued that the duty to respect is something less than the duty to obey, modern writers do not accept that persons enjoying privileges and immunities are not bound under domestic law.24 Where exemptions are required for members of mission from local laws-on tax, customs and social security for example-special provision must be made by treaty or in domestic law. Article 36 of the Vienna Convention, for example, requires the receiving State to "permit entry of articles for the official use of the mission" as well as "articles for the official use of a diplomatic agent or members of his family forming part of his establishment." Even if articles are "for official use," Article 36 does not override the general requirement in Article 41(1) to respect local laws and regulations-which may prohibit, for example, import of guns, alcohol or endangered species, so long as such import restrictions do not impede normal functioning of the
24
See, for example, Hurst, Recueil des Cours (1926), II, 142: "L'obligation qui
leur incombe de respecter ces lois ne provient d'aucune obligation de leur

obeir." See by contrast Denzasupra n. 12, 373 375.
Diplomatic Privileges and Immunities mission. Article 21 of the Harvard draft Convention, with its special focus on import and export, may now be seen as a historical curiosity. The other provision which failed to gain general acceptance was Article 27 of the draft Convention which required sending and receiving States to apply the provisions of an extradition treaty in force between them to a member of a diplomatic mission charged with an offence against the law of the sending State. This is a somewhat odd provision and it is difficult to see its potential usefulness. In most cases the conduct complained of would also be an offence against the law of the receiving State. The sending State could simply waive diplomatic immunity and encourage the receiving State to take criminal proceedings. If there was no offence against the law of the receiving State-for example if a diplomatic agent to a country where polygamy was permitted took a second wife there in contravention of the marriage law of his sending State, or if the offence had been committed before the diplomat began his posting-the sending State could simply await his return at the end of his posting or earlier if it decided to dismiss him. Assuming that any offence was committed in a private capacity, the immunity of the diplomat would come to an end along with his diplomatic functions-and if extradition appeared desirable to avoid disappearance of the suspect diplomat there would then be no obstacle to such proceedings. The Commentary gives as a possible example "counterfeiting or forging the seal or signature of a diplomatic officer"-punishable in the United States as if it had been committed in US territory-but there seems to be no reason why the sending State should not simply withdraw or dismiss the suspect diplomat and seek by deportation or otherwise to ensure his return home. What is more likely is that a member of a diplomatic mission wanted for an offence against the law of the receiving State should skip off home on finding out that his immunity was about to be waived and have to be extradited. 25 Article 27 at any rate was never reflected in any later treaty provision.
As happened in the case of Kevin McDonald: see Judgment of the Supreme
25
Court of Ireland 185/88, 27 July 1988, by Finlay C.J. McDonald, a member of the administrative and technical staff of the Embassy of Ireland in London was extradited to the UK and convicted for selling Irish passports to persons not entitled to them.
The Long Term Influence of the Harvard Draft Convention

The Harvard draft exercised its greatest influence during the negotiation of the Vienna Convention on Diplomatic Relations. Because it provided such a comprehensively researched account of practice, of customary international law and of bilateral treaties, it was not necessary for the International Law Commission before beginning intensive study of the topic "diplomatic intercourse and immunities" to commission information or research from United Nations Members. The original Report to the International Law Commission by A.E.F. Sandstr6m relied heavily both on the research and on the solutions proposed in the Harvard draft, solidly based as they were on established practice acceptable to governments rather than on any abstruse theory of diplomatic immunity. The Harvard draft was the direct inspiration of several provisions added by the International Law Commission during their drafting work and was frequently referred to in ILC debates. None of the other earlier codes, projects or treaties on the topic had comparable attention paid to their detailed rules. Although the Commission and then the Vienna Conference took in other rules of diplomatic law-such as exceptions to immunity familiar to civil law but not to common law systemsand carried out further progressive development of the law, it may fairly be said that the Harvard draft formed the nucleus of the Vienna Convention and as such exercised great influence on the development of international law. For a few years after the conclusion of the Vienna Convention, the provisions of the Harvard draft Convention continued to be cited as a source of authority. In Clifton Wilson's book Diplomatic Privileges and Immunities, for example, published in the United States in 1967, there are numerous places where the proposals in the Harvard draft are given virtually equal weight with the provisions of the Vienna Convention in the analysis of the contemporary legal position. Before long, however, the Vienna Convention had been ratified by over one hundred States and was taking its place-even for those States which had yet to ratify-as the modern law. The Harvard draft continued to be cited, but for its historical relevance in showing the background to the Vienna Convention rather than as a source which might help resolve the ambiguities or the questions left unresolved by the
Diplomatic Privileges and Immunities Convention.2 6 Salmon, publishing his authoritative Manuel de Droit Diplomatique in 1994, made only a single reference to the Harvard draft. It may well be that, if the provisions of the draft had found less acceptance with the International Law Commission or with the negotiators of the Vienna Convention, or if the Convention itself had been less than universally acceptable to States as a basis for diplomatic relations, the draft would have retained greater relevance in modern practice. This is, however, not what happened and not what one would have wished.
26
This was largely the position in the first edition of Denza: Diplomatic Law,
published in 1976.
Chapter 6
THE LEGAL POSITION AND FUNCTIONS OF CONSULS

J. Craig Barker Introduction
The work of the Harvard Research on the Legal Position and Function of Consuls began during the second phase of its work to prepare draft conventions on four "additional" 1 subjects which had been identified by the League of Nations Committee of Experts for the Progressive Codification of International Law as ripe for codification.2 This work was undertaken under the leadership of Quincy Wright and took place over a period of fourteen days between June 1930 and November 1931. The resulting draft Convention consisted of thirtyfour articles dealing with matters relating to, inter alia, the use of terms, the establishment of consular status, consular functions, consular inviolability, privileges and immunities and the duties of the sending state. There can be little doubt that the Harvard draft Convention was the most significant and valuable of the public and private attempts at codification of consular law and practice that had emerged since the first codification effort in 1868. 3 The significance and value of the The subjects covered during the first phase of the work of the Harvard Research comprised the three topics which had been the subject of the First Conference for the Progressive Codification of International Law which met at The Hague on March 12 April 12, 1930 covering Nationality, the Responsibility of States and Territorial Waters. The other subjects covered in this phase of the Harvard Research were Diplomatic Privileges and Immunities, The Competence of Courts in regard to Foreign States and Piracy. 2 The topic of the Legal Position and Functions of Consuls had been identified as ripe for codification by the Committee of Experts at its third session on March 22-April 2, 1927. 3 The first such effort was undertaken by J.G. Bluntschli and was followed by two other private codification efforts by D.D. Field (1876) and Pascale Fiore (1890). In addition to the Harvard Research two other institutional efforts at codification had been undertaken by the Institute of International Law in 1896
1
Harvard Research on International Law Draft Convention arises not only from the clarity of the draft articles themselves but also from the "abundantly documented commentaries on the articles." 4 What these commentaries reveal is that there was, at the time, no shortage of state practice on the legal position and function of consuls. The drafters were able to draw on a range of examples of state practice including national laws and regulations, bipartite treaties, draft codes, cases and incidents as well as academic writings.5 In addition to this material, the twenty-one American states participating in the Sixth International Conference of American States had promulgated a Convention on Consular Agents in 1928, which was based on a draft prepared by the Inter-American Commission of Jurists and sought to define "the duties, rights, prerogatives and immunities of consular agents, in accordance with the usages and agreements on the matter. ' '6 Nevertheless, it was bipartite and reciprocal treaties, coupled with the common inclusion of most favoured nation clauses that provided the richest source of relevant state practice. Thus the drafters concluded that: [T]he world is now covered by a network of consular provisions in bipartite treaties, binding almost every state to the other states with which it has commercial relations of importance. Even when the provision itself does not specify consular powers, privileges and immunities in detail, most favoured nation clauses in most cases render applicable such
provisions of treaties concluded by the parties with other states.
In spite of the existence of this wealth of materials for codifying the relevant international law the drafters concluded that "comparatively few of the functions and privileges of consuls are established by universal international law" and that, as a consequence, much of the draft Convention "will be to a considerable extent legislation." 8
and the American Institute of International Law in 1925. See also The Legal Position and Functions of Consuls, Introductory Note, 26 Am. J.Int'l L. (Supp.) 201 (1932) (hereinafter Introductory Note), at 213. 4 Report on Consular Intercourse and Immunities by Mr J. Zourek, Special
Rapporteur to the International Law Commission, UN Doc A/CN.4/108, 1957 11 fL.C. Yb. 71 (hereinafter Zourek Report), at 78. 5Introductory Note, supra n. 3, at 210. 6 Havana Convention on Consular Agents 1928, 22 Am. J. Int'l L. (Supp.) 147 (1928), Preamble. See further Introductory Note, supra n. 3, at p. 213. 7 Ibid,212.
8 Ibid, 214.
Legal Position and Functions of Consuls In fact, as the Commentary regularly shows, in a number of cases, the drafters were faced with having to choose between two or more, sometimes opposing, practices. In the majority of such cases, the drafters sought to identify the minimum level of agreement among states as the basis of the relevant draft article. 9 It is worth noting however, that, in some cases, perhaps understandably, the drafters appeared to favour United States practice over that of other states.10 In defence of such choices, it should be noted that, at the time, the United States was one of the most active states in terms of the sending and receiving of consuls and had only recently undergone a process of fundamental reorganisation of her consular service." In developing the draft Convention, the drafters sought to rely on two fundamental principles, which they identified as having developed in international practice. These were, first, that consuls do not enjoy a diplomatic character, and, secondly, that the jurisdiction of the territorial sovereign is presumed. 12 In relation to the first principle, the Introductory Note sought to emphasise the difference between diplomatic privileges and immunities, which were based on the principle of functional necessity, and consular privileges and immunities, which they considered were in the interest of the sending state alone. In making this assertion, the drafters relied heavily on the work of W.E. Hall who argued succinctly that the receiving state is "indifferent" to the work of foreign consuls, "it being either unaf13 fected by them or affected only in a remote and indirect manner. Furthermore, according to Hall, the work of a consul can be carried 14 out without interfering with the jurisdiction of the receiving state. Thus, according to the Introductory Note, consular privileges and
9 See, for example, the discussion of consular functions below.
'0 See, for example, the discussion of consular immunities below. " For a detailed account of the development of the American consular service before 1906 and the enactment of a new law in that year "making possible for the first time the organization of the consular system in a manner calculated to develop its efficiency and usefulness," see Carr W.J. "The American Consular
Service" 1 Am. J. Int'IL 891 (1906). 12 Introductory Note, supra n. 3, p. 214. 13 Hall, Treatise on International Law, 8th ed., Oxford, 1924, 371. Quoted in Introductory Note, supra n. 3, 215.
14id.
Harvard Research on International Law immunities exist as a result of the acquiescence of the receiving state to "the slight qualifications of its territorial authority in order that it may be permitted to establish consular offices abroad in its own 15 interests." It is certainly the case that there were substantial differences between diplomatic functions and consular functions. However whether such a clear distinction actually existed between the theoretical justifications for two forms of privileges and immunities is debateable. For example, the famous dictum of Chief Justice Marshall in The Schooner Exchange v McFaddon16 makes it clear that all privileges and immunities result, to some extent, from the tacit consent of the receiving state to the reduction of its territorial jurisdiction. Furthermore, the reciprocity that was at the heart of the explanation for consular privileges and immunities set out above was equally as relevant to diplomatic as to consular privileges and immunities. Perhaps most importantly, the Introductory Note, although making the assertion that "the presumption of territorial sovereignty is not qualified in the case of consuls by any basic principle of the state system" 17 concluded by acknowledging that "it is possible to define certain special privileges and immunities which the receiving state must grant a consul if he is to perform successfully any [consular] functions." 18 Thus, even if the drafters were unwilling to admit it, consular privileges and immunities were as dependent on the concept of functional necessity as their diplomatic equivalents. The difference between the privileges and immunities accorded to consuls as opposed to diplomats is, rather, dependent on the different functions they perform. Although these functions relate to commercial as opposed to governmental matters, they can only be properly carried out by representatives of the sending state living and working in the receiving state. Accordingly, there is a basic minimum of privileges and immunities which attach both to the official place of consular business and the person of the consul. This is, in fact, made clear in the Introductory Note which confirmed that:
15Introductory Note, supra n. 3, 215. 16 (1812) 7 Cranch 116, at 135. 17Introductory Note, supra n. 3, 215.
18Id.
Legal Position and Functions of Consuls

The consul must have a certain security of residence and archives, and a certain freedom of personal movement if he is to exercise any official functions at all. Having considered some of the key issues relevant to the codification process, it is possible now to turn to consider the substance of the draft articles themselves. It is not intended here to undertake a systematic examination of each article in turn, a process that was undertaken by the Harvard researchers themselves in the form of the Commentary to the draft articles. 19 Rather, the intention here is to highlight some of the key developments and innovations in the draft articles before turning to consider their relevance to the modern law of consular relations. Particular focus will be given to the two key issues that are addressed in the previous discussion, that is, the question of the duties of the receiving state as they relate to consular functions ,20 as well as those relating to the consular office, property and personnel.2 1 Consular Functions The title of the draft Convention betrays one of the fundamental problems facing the Harvard team, that is, the apparent need to enumerate the extent of consular functions. It is notable that the corresponding Convention regulating diplomatic law was concerned more with the substantive law of diplomatic privileges and immunities than it was with the function of diplomats. Indeed, in contrast to
19The
Legal Position and Functions of Consuls, Commentary, 26 Am. J. Int'l L.
(Supp.) 217 (1932) (hereinafter Commentary). See also the HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft
convention appears below as Appendix 5.

20 21
See Section III of the draft articles comprising Articles 11-14. See Section IV comprising Articles 15-28. The other sections of the draft
articles that will not be covered in depth in this present discussion include Section 1 (Article 1), dealing with the use of terms; Section II (Articles 2 10) comprising "procedural rules for establishing the beginning and termination of the consular status of a given individual," (Ibid, 216); Section V (Articles 29 32) which deals with the duties of the sending state; and Section VI (Articles 33 & 34) which contained certain procedural rules relating to the interpretation of the draft Convention.
Harvard Research on International Law the Consular Convention, the Diplomatic Convention did not contain a single provision dealing with diplomatic functions. The reason for the difference in the titles of the two conventions can be traced back to the League of Nations Committee of Experts for the Progressive Codification of International Law which, at its third session on March 22-April 2, 1927, identified the topic of the Legal Position and Functions of Consuls as being ripe for codification. However, the records of this meeting indicate that while there was repeated reference to the legal position of consuls, little was made of the need to delimit consular functions. Indeed, the report of the SubCommittee on the matter, which reported to the Committee of Experts, dealt only with questions relating to the legal status of consuls and not to their functions.2 2 This position reflects the fact that no detailed enumeration of consular functions had previously been attempted in any codification effort.23 Nevertheless, when the work of the Harvard Research began on this topic, the question of the enumeration of consular functions emerged as one of the key issues, probably as a result of the belief, set out above, that the legal position of consuls is dependent, to a large extent, on the functions exercised by them. 4 At first sight, the Harvard draft Convention did not seek to enumerate consular functions in any detail. Thus, Article 1(d) of the draft defined "consular functions" in general terms as "functions ... which a state may exercise through agents in the territory of another state, in the interest of its nationals, or of its commerce, or in connection with the administration of its laws." Central to this definition was the understanding that consular functions are functions of the sending state to be exercised through the agency of consular officers. In addition, the definition identified the three principal strands of the consular function as concerning matters relating to nationals, com"Legal Position and Function of Consuls" Publications of the League of Nations. V. Legal. 1927. V. 7. 22 Am J. Int'lL. (Supp.) 104 (1928). 23 No such enumeration is apparent, for example, in the Havana Convention which provides simply that "Consuls shall exercise the functions that the law of their state confers upon them, without prejudice to the legislation of the country where they are serving." 22 Am. J. Int'l L. (Supp.) 147 at 148 (1928). 24 It is notable that, of the 158-page Commentary to the draft Convention, 51 pages are given over to the single article dealing directly with consular functions.
22

merce and administrative functions, such as the issuing of visas and passports. The separation of consular functions into these three categories pervaded the whole draft Convention and remains largely applicable today. However, having provided a general definition of consular functions, it was deemed necessary also to provide a specific enumeration of certain key functions. In their Commentary to Article 1(d) the drafters recognised the impossibility of defining consular functions only in general terms.2 5 It was considered that customary international law recognised a certain minimum of functions which a consul must be permitted to exercise and that these should be specifically enumerated in the draft Convention.2 6 This was done in Article 11. The introductory paragraph to Article 11 began by acknowledging that consuls were entitled "to perform any act authorized by a treaty in force between the sending state and the receiving state or authorized by local custom." Furthermore, it was expressly acknowledged that the enumeration of functions in the draft article "shall not preclude the exercise by a consul of any other function conferred upon him by the sending state and not forbidden by the law of the receiving state." Thus, it was open to the relevant states to agree to the exercise of functions other than those enumerated in the draft article.2 7 However, the central purpose of the introductory paragraph was to introduce certain functions which the receiving state "shall permit a consul to perform ... as agent of the sending state within the consular district." These functions were enumerated in paragraphs (a) to (k) of Article 11 of the draft Convention and included the authentication of
Commentary, 224. According to the Commentary, Article 11 paragraphs (a) to (k) were based on existing practice and included those functions "which have been found to be generally recognised in national instructions and consular treaties." Commentary, 254-55. 27 In keeping with the understanding that the receiving state is disinterested in the work of foreign consuls in their territory, the Commentary phrased the possibility of such an agreement to extend the consular functions as an authorization by the sending state to which the receiving state does not object.
25 26
Harvard Research on International Law documents; 28 the issuing of passports and visas; 29 the registering of nationals of the sending states; 30 communication with nationals of the sending state, 31 including persons imprisoned or detained by authorities of the receiving state;32 measures in relation to deceased nationals; 33 the preservation and protection of the interests
official
Article 1 1(a). These functions were referred to in the Commentary as "notarial" and were enumerated in considerable detail in the relevant provision insofar as it was accepted that the term "seems to have no well established meaning in international practice and is seldom used in treaties." Commentary, 257. 29 Article 11(b). It was made clear in the Commentary that "The consular functions dealt with in this paragraph are quite generally recognized in national regulations and treaties and by almost universal practice." Commentary, 263. 30 Article 11 (c). Once again, this function appeared to be very well established in practice and was linked to the practicalities of according diplomatic protection. Thus, according to the Commentary: "National regulations very commonly authorize consuls to register nationals for the purpose of assuring them better protection and to register their births deaths and marriages in order that their civil status may be established for legal purposes." Commentary, 265. The right of consuls to perform marriages was considered in the Commentary where it was recognized that such a practice is permitted if authorised by the laws of the sending state and not opposed by the authorities of the receiving state. Commentary, 266. "' Article 1 (d). This function is central to the proper exercise of many of the other consular functions, particularly those relating directly to the assistance and protection of nationals. Commentary, 268. Consideration was given in the commentary to extraterritorial judicial power of consuls over nationals of the sending state, which had been claimed in earlier times and which were still provided for in more recent treaties. However, the Commentary relied in this case on US practice and cited, in particular, the view expressed in the US courts in In re Aubrey, 885 Federal Reporter 848, at p. 851 in which it was made clear that: "As a matter of law, foreign consuls have no jurisdiction within the territory of the United States except by force of treaty stipulation." Commentary, 269. 32 The question of the right of a foreign prisoner to communicate with his consulate has recently become a matter of considerable controversy and will be dealt with later in this Chapter. 33 Article 11(e). The Commentary noted that "care for the estates of deceased nationals is one of the most important functions of consuls" Commentary, 272. According to the Commentary, two different theories prevailed in relation to this function, both of which were supported in contemporary state practice. In terms of the first theory, the estate was effectively vested in the consul who could immediately take charge of the estate and administer it subject to the control of
28

of a national of the sending state who is absent, incompetent or 35 a minor; 34 the visiting and inspection of a vessel of the sending state; the taking of measures to salvage a vessel of the sending state or its cargo; 36 the visiting and inspection of vessels of any state which is destined for a port in the sending state;3 7 the taking of measures to
his own state. The second theory provided that primary competence should lie with the local authorities with the consul overseeing the process on behalf of the sending state and heirs of the deceased. The Commentary concluded that; "at the present time the second theory is generally recognized except in so far as modified by express treaty." Commentary, p. 274. 14 Article 11(f). This was another detailed provision built on a range of examples of state practice. Crucially, as well as overseeing the interests of the absent, incompetent or minor national, the consul was given the authority to act as agent of the national and to appear on behalf of that national in proceedings before the courts or other authorities of the receiving state. See Commentary, 278. 35 Article 11 (g). The commercial role of consuls was most apparent in relation to vessels of the sending state and it was for this reason that many consulates were located in ports within receiving states. According to the Commentary, "national regulations and consular treaties generally include extensive provisions in regard to vessels of the sending state, their officers and crew. The present text covers the consular functions in those matters which appear to be generally recognized." Commentary, 281. This detailed provision was premised on the fact that ships flying the flag of the sending state equated with the territory of that state and were not directly subject to the jurisdiction of the local authorities. Although restrictions were placed on the exercise of jurisdiction by local authorities, for example in implementing the so-called peace of the port rule (See Commentary, 288) Nevertheless, it was noted in the Commentary that: "the text under discussion does not go as far as most of [the existing] conventions. It does not forbid the local authorities from acting in the absence of the consul or his representative, nor does it require notification of the consul before the visit. It merely requires the receiving state to permit the consul to accompany the authorities in any visit other than for ordinary customs or sanitary inspection." Commentary, 283. 36 Article 11(h). As with the estates of deceased nationals, two alternative systems are identified, one of which gave authority directly to the consul to direct the salvage, take control of the salved property, adjudicate claims and distribute residue. The alternative system vested authority in the local authority. Once again, the preferred route was to provide for the control of the local authorities "leaving it to states to conclude bilateral treaties if they wish their consuls to exercise more extensive functions." Commentary, 293. 17 Article 11(i). This provision appeared to reflect well-established customary international law and elicited only very brief analysis in the Commentary,
Harvard Research on International Law protect a national vessel or any other interest of the sending state from injury; 38 and the studying of conditions in and incidents within the consular district and the reporting back thereon to the sending state.39 The exercise of the functions enumerated in paragraphs (a) to (k) of Article 11 was not meant to be unlimited. First, it was accepted that consular functions could only be exercised within the consular district. 40 Furthermore, such functions could not be performed through although it was recognised in the commentary that the immunity of public vessels would prevail if inspection by a relevant consul was refused. See pp. 294 95. 38 Article 1l(j). According to the Commentary this function was linked with the right of a consul to communicate with the authorities of the receiving state. It was noted that: "The present paragraph is designed to fill in possible gaps in the detailed enumeration of functions in the other paragraphs of article 11, with regard to the interests of the sending state or of its nationals upon which the consul may properly address the authorities of the sending state or take other measures." Commentary, 296. This provision related only to protection of commercial interests and did cover the promotion of the commercial interests of the sending state. The Commentary noted that such activity "is frequently the objective of many of the reports to his own state which the consul is entitled to make under paragraph (k) and article 13" Commentary, 300. '9 Article 11 (k). This provision covered the role of consuls in relation to trade promotion and national propaganda and would normally have included the sending of reports by the consul to his home state primarily in relation to commercial information, "although other matters such as political events, scientific or artistic progress, public health conditions, and laws or incidents of interest to their government have been included" Commentary, 301. Many of these additional aspects of the role of the consul in the studying of conditions in the receiving state were made more explicit in the Vienna Convention on Consular Relations 1963, which, additionally, identified this role as a primary one as opposed to the residual one that is implied in the Harvard draft. Thus, for example, Article 5(b) of the 1963 Convention specifically requires the consul to "further the development of commercial, economic, cultural and scientific relations between the sending state and the receiving state" while 5(c) explicitly requires the consul to "ascertain by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving state, reporting thereon to the government of the sending state and giving information to persons interested." 40 The consular district was defined in Article l(f) as "the area within which a consul is entitled to exercise consular functions. See Commentary, 225 26 and at p.253 where it was acknowledged that "Regulations of the sending state usually authorize a consul to function only within the district to which he has been assigned."
Legal Position and Functions of Consuls the use of any form of compulsion. 41 As noted above, Article 11 specifically provided that a consul may exercise any function that is not listed in Article 11 insofar as such a function was conferred upon him by the sending state and "not forbidden by the law or the practice of the receiving state. 4 2 Reference to the law and practice of the receiving state is limited only to "other" function. This suggests that the functions enumerated in paragraphs (a) to (k) might have been performed by a consular official even if they were forbidden by the law and practice of the receiving state. Reference can be made at this time to the obligation on the sending state to ensure that consuls complied with the law of the receiving state. However, this obligation was not absolute. Thus, Article 29 provided that "A sending state shall require its consul to observe scrupulously the law of the receiving state" but only in so far as that law "is not inconsistent with the provisions of this convention or with treaties in force between the sending and the receiving states." The Commentary to Article 29 made clear that "a consul is subject to the law of the receiving state except in so far as he is entitled to some legal advantage conferred upon him by virtue of this convention" which "may be in the form of a power to exercise a specified function" as provided for in Article 11. Taking these provisions together it would appear that a consul exercising one of the functions enumerated in paragraphs (a) to (k) of Article 11 could do so in breach of the law of the receiving state in so far as it did not involve the use of compulsion. The combination of Articles 1(d) and I I represented a compromise between those who favoured a general definition only, with those who would have preferred a definite and exhaustive enumeration of consular functions. The difficulty in the relationship between Article 1(d) and Article 11 is that the language of article 1(d) was permissive, with Article 11 being referred to as an example of possible consular functions. Article 11, on the other hand, was drafted in terms of an imperative, placing an obligation on the receiving state to allow the performance of the functions enumerated therein, even where the exercise of such functions may have involved the breaching of the
41
Commentary, 253-54.
42 Article 11, Introductory Paragraph.
Harvard Research on International Law local law. Whether such a formulation of the general and the specific would have found acceptance with states remains moot. However, it is apparent that many of the same arguments relating to the enumeration of consular functions had caused earlier codification efforts to shy away from the enumeration of such functions and continued to "plague" future codification efforts, including, in particular, the drafting of the 1963 Vienna Convention.43 A similar compromise to that contained in the Harvard Draft was included in the International Law Commission's Draft Articles on Consular Relations which were adopted by the ILC in 1961. Having enumerated in general terms in Draft Article 3 that: "Consular functions are exercised by consulates. They are also exercised diplomatic missions in accordance with the provisions of article 68," the ILC Draft proposed an enumeration of consular functions comprising twelve specific functions prefaced by the words "consular functions '44 consist more especially of." This represented, according to Luke T. Lee, "a non-exhaustive list of the most important consular functions recognized by international law by way of example. ' 45 The ILC reported that the majority of states responding to its drafts had favoured this more general approach. Nevertheless, when it came to the Vienna Conference, an attempt to replace the enumeration of consular functions with a general definition was defeated and the words "most especially" were removed resulting in what appears to be an exhaustive list of consular functions. Given the changing role of consuls and consulates, particularly in the face of modem threats such as terrorism, it would appear that a better approach would have been to include a general definition, such as that contained in Article 3 of the Vienna Convention on Diplomatic Relations 1961 in relation to diplomatic functions, or to follow the lead of the Harvard Research, and indeed the ILC, and include an indicative, as opposed to an exhaustive list of consular functions.
43 Luke T. Lee, Vienna Convention on Consular Relations (A.W. Sijthoff-
Leiden/Rule of Law Press, Durham, N.C. 1966) at 51. 44 Draft Articles on Consular Relations adopted by the International Law Commission at its Thirteenth Session. See Report of the Commission to the United Nations General Assembly, 1961 II LL.C. Yb 92 128 (hereinafter ILC Report). Available at <http://untreaty.un.org/ilc/texts/instruments/english/ commentaries/9 2 1961.pdf>. 45 Lee, supra, 51. See also ILC Report, 96.
Legal Position and Functions of Consuls Issues of Communication

The remainder of Section III of the Harvard draft Convention deals with issues of communication with the authorities of the receiving state,4 6 with authorities of the sending state4 7 and with notifications to consuls. 48 Article 12 made it clear that when communicating with the receiving state, the normal understanding was that consul could communicate only with the local authorities of the consular district. In relation to the issues on which communication was permissible, the Commentary noted that many treaties confined communications only to "treaty infractions, to injuries to nationals or to both.,, 49 However inclusion of the words "matters within the scope of consular functions" in Article 12 sought to broaden this right to include "communications in regard to all functions based on treaty or local customs even though neither treaty infraction nor injury to nationals by the receiving state were alleged."50 The fundamental distinction between diplomatic and consular functions that was at the heart of the Harvard codification effort was emphasized in the Commentary to this article, which noted that it was not only the channels of communications that were important but also the restricted objectives of consular communications. Thus it was noted that: "While the consul may request information, initiate proceedings, make representtations or even suggest courses of action, he can not present formal demands, enter into formal negotiations or agree to settlement."5 Nevertheless, the Article does provide for the possibility of communication with the government of the receiving sate by a principal consul, 5 2 but only if the sending state has no diplomatic representative accredited to the receiving state. Article 13 dealt with communications with the government of the sending state as well as with diplomatic representatives of the sending
46
Article 12.
47 Article 13.
48
Article 14. Commentary, 303. 50

49
id.
51 id.
Defined in Article l(b) as the consul in charge of the exercise of consular functions in a consular district.
52
Harvard Research on International Law state and other consuls of the sending state, and consuls of other states in the territory of the receiving state, all of which were to be permitted by the receiving state. The Article ensured freedom of communication but only in respect of official communications, which can be facilitated "by any available means including the employment of messengers provided with passports ad hoc, and shall permit the use of codes and cipher in such communication." It is important to note that this provision was identical to the corresponding provision in Article 14 of the Harvard draft Convention on Diplomatic Privileges and Immunities. Accordingly, the analysis of that provision by Professor Denza in the preceding chapter, applies equally to Article 13 of the Consular Convention.53 In particular, Denza notes that Article 14 of the Diplomatic Convention was framed "in more precise and extensive terms than had been done in any previous texts. ' 4 She argues also that "the methods [of communication] which might be employed were more extensive that under the Vienna Convention [on Diplomatic Relations 1961]" She is able then to conclude that "the Harvard draft Convention [on Diplomatic Privileges and Immunities] may be seen as a high-water mark of the recognition of the doctrine of universal freedom of diplomatic communications. This conclusion must also apply to consular communications. Having made so much of the difference between diplomatic and consular functions, it might seem surprising that the drafters of the Consular Convention relied so closely on terms originally drafted for the purposes of the regulation of diplomatic relations. However, it would seem that it was the official nature of the communications as belonging to the sending state and so not subject to the interference of the receiving state that caused this assimilation with diplomatic practice. Thus the Commentary noted the close association between the right of consular communication and the inviolability of consular correspondence and archive,56 which inviolability was described in the Commentary as resting upon general principles of international law.57 The point here is that diplomats and consuls, whatever their functions might be and however different those functions were,
53
54
Denza E, Chapter 5, supra, 166 7.
id.
55 id.
56 Commentary, 306. 57 Commentary, 322.

needed to be able to communicate with a range of different persons and offices, including their home government in order that they could properly fulfil their functions. Finally, in relation to the question of communication, Article 14 of the draft Consular Convention required the receiving state promptly to notify the nearest consul of matters relating to the death of certain nationals of the sending state,5 8 the wreck of a vessel flying under the flag of the sending state on the coast of or within the territory of the receiving state,5 9 or of the detention by authority of the receiving state of a vessel of the sending state. 60 According to the Commentary such provisions were "designed to assist the consul in certain of his functions" and appear to have been normally included in treaty 61 provisions. What is interesting about this provision is the lack of reference to nationals of the sending state who have been arrested by the authorities of the sending state. This is a matter of considerable current controversy that has formed the basis of three separate disputes before the International Court of Justice in recent years related to the right of foreign nationals on death row in the United States to consular access. 62 Article 36(1) of the Vienna Convention on Consular Relations requires the competent authorities of the receiving state to inform the consular post of the sending state if one of its nationals is arrested and to allow the consul to have access to such individuals. In the most recent of these cases, Avena and other Mexican Nationals, Mexico went so far as to argue that the right to consular notification Article 14(a). Not all deaths of nationals of the sending state had to be notified. The provision applied only to nationals "known to have died leaving
58
property within the territory of the receiving state and not known to have any heirs or testamentary executors within that territory." 59 Article 14(b). 60 Article 14(c). 61 Commentary, 322. 62 Breard (Paraguayv United States) ICJ Reports 248 (1998); LaGrand Case (Germany v United States) (Order for Provisional Measures) ICJ Reports 9 (1999); LaGrand Case (Germany v United States) (Merits Judgment of 27 June 2001) ICJ Reports 2001 (forthcoming); Avena and other Mexican Nationals (Order for Provisional Measures) ICJ Reports 2003 (forthcoming); Avena and other Mexican Nationals (Merits Judgment of 31 March 2004) ICJ Reports 2004 (forthcoming). Texts of all judgments are available at www.icj-cij.org.
Harvard Research on International Law and consular communication are fundamental human rights, the breach of which would vitiate the entire process of criminal proceedings in the case in question. This position was rejected by the International Court of Justice, which, nevertheless, found the United States in breach of the Convention and required it to provide a remedy to the affected individuals. The United States has subsequently withdrawn from the Optional Protocol to the 1963 Convention, which provides for compulsory dispute settlement. Consular Privileges and Immunities It has been noted above that the question of consular privileges and immunities was a controversial one for the Harvard Research. On the one hand, it is clear that the drafters recognised the need for certain advantages to attach both to the person of a consul and to his office in order that he might properly fulfil his functions. On the other hand, the desire to maintain the distinction between diplomatic and consular functions undoubtedly fed into the drafting process. Thus, although the drafters recognised the "special legal position of consuls," there was a manifest reluctance to refer to the special position as specifically comprising "privileges and immunities. 63 Section IV of the draft Convention dealt with the duties of the receiving state with respect to the consular office, property and personnel. The section includes measures securing the inviolability of consular archives 64 and the consular office, 65 as well as provisions
63 The phrase
consular privileges and immunities did not appear anywhere in the
draft Convention or the Commentary. This is particularly relevant given that the
title of the draft Diplomatic Convention refers directly to "Diplomatic Privileges and Immunities."
64
Article 16. The Commentary noted that "the inviolability of archives is the most universally recognized of all consular immunities" and that it "rests upon
general principles of international law." Commentary, 322.
65 Article 17. In contrast to the inviolability of the archive, the inviolability of
the consular office was not universally recognised but was frequently provided for in treaties and derives from the inviolability of the archives which are generally kept in the consular office. The inviolability was limited to the office
and not to the consular premises more generally. However, the draft provided that the office was to be used only for consular purposes. The provision was directed at officials of the receiving state and no exception was provided for, although entry in furtherance of the right of self-defence was acknowledged.
Commentary, 326 28.

relating to the use of the sending state's coat of arms and flag.6 6 These provisions related directly to the property of the sending state and, perhaps unsurprisingly, equated closely with the corresponding provisions in the draft Convention on Diplomatic Privileges and Immunities. Similarly, there were a number of provisions that secured exemptions for consuls from the duty to attend as a witness,6 7 military and other public service, 6 1 taxation, 69 and customs duties, 70 which overlapped considerably with the corresponding provisions of the draft Convention on Diplomatic Privileges and Immunities. These provisions, and any other advantages which were not capable of concrete statement, 71 were stated as requiring implementation on a reciprocal and non-discriminatory basis. 72 It is only where the draft Convention dealt with the protection of the consul and his immunities that the principal differences between the diplomatic and consular Conventions emerged.
66
Article 18. The Commentary noted that this provision was framed in much
broader terms that existing practice but 'justified as necessary to designate the consulate and thus to assure the immunities of office and archives, as necessary to assure the respect and protection due to consuls and as necessary to enable the consul to observe the holidays of his own state and those of the receiving state." Commentary, 330.
Article 22. Article 23. 69 Article 24. 70 Article 25. 71 See Commentary, 313.
67 68
72
See Article 15(b) which expressed an obligation on the receiving state "to
accord to a consul within its territory, subject to the condition of reciprocity, every exemption and immunity which it accords to any other consul of the same character and grade of service in the same place." The Commentary focused on the attempts in the article to ensure equality among consuls of the same grade of service in the same place and recognised the common practice in bipartite treaties of relying on most-favoured nation clauses to ensure such equality of treatment. Commentary, 317-22. The Commentary further noted that the use of most-favoured nation clauses had resulted in increasing uniformity in the granting of consular exemptions and immunities and less attention was being paid to the question of reciprocity. Commentary, 320. However, neither the provision nor the Commentary directly addressed the content of those exemptions and immunities.
Harvard Research on International Law Article 15(a) dealt with questions of respect and protection and provides that: "a receiving state shall accord to a consul within its territory respect and protection adequate for the exercise of his consular functions." The issue of respect was a familiar one in the international law of the time. It can be linked to concepts of dignity and representative character, although it did not, of itself, imply any representative character applicable to consuls. Of much more significance is the issue of protection. The draft, although imposing an obligation on the receiving state to protect consuls, limited this obligation to measures adequate for the exercise of his consular function. This stands in stark contrast to Article 17 of the Diplomatic Convention, which imposed an apparently unlimited obligation on the receiving state to "protect a member of a [diplomatic] mission and the members of his family from any interference with their security, peace, or dignity." It would seem that the justification for the more specific obligation of protection in relation to diplomats and their families was, in fact, the representative character of the diplomat, 7 3 a character which, it has already been noted, was not extended to consuls. The Commentary noted that the "failure to extend special protection to consuls had occasionally been made the subject of diplomatic representations" but did not accord with general state practice.7 4 Furthermore, it is apparent from the Commentary that the obligation to protect consular officials was regarded as a matter of courtesy and respect rather than an established principle of international law.75 Articles 20 and 21 dealt directly with perhaps the most important issue for present purposes, that is, consular immunity. Article 20 of the draft Convention further made clear the fundamental differences
73For a discussion of the link between representative character and the so-called
special duty of protection in the case of diplomatic personnel, see Barker, The
ProtectionofDiplomatic Personnel,Ashgate, Dartmouth, 2006, 45-48. 74 Commentary, 316 (emphasis added). 75See, for example, Mexico (FranciscoMiller) v U.S., United States-Mexico, General Claims Commission, 1927, 254 at 257 in which it was held that: "In executing the laws of the country, especially those concerning police and penal law, the government should realize that foreign governments are sensitive regarding the treatment accorded their representatives and therefore, the govern-
ment of the consul's representative should exercise greater vigilance in respect

to their security and safety."

between the personal rights of consuls compared with those of diplomats. Although nominally providing an exemption from arrest, the provision imposed severe limitations on that exemption. Thus, arrest remained permissible in serious offences, which are nowhere defined.76 Furthermore, the Commentary confirmed that the article was intended to cover only exemption from arrest and did not imply any exemption from prosecution.7 7 It would appear that although similar provisions to the present one could be found in treaties, no exemption from arrest previously existed under general international law, yet the drafters felt able to extrapolate such an exemption from the obligations of respect and protection.78 Such an extrapolation might have been easier had the drafters been more willing to accept the direct applicability of the functional necessity theory. However, the possibility of distinguishing between serious and less serious offences would have been less justifiable in terms of that approach. In terms of Article 20: A receiving state shall exempt a person from liability and from its judicial and administrative jurisdiction for an act done by him while he was consul in the performance of consular function which he was entitled
to exercise; the receiving state decides, subject to diplomatic recourse by the sending state, whether the act was done in the performance of such
functions. It is clear that the provision did not recognise a general right to immunity but expressed, rather, the immunity rationae materiae or subject matter immunity that attached to the consul only while acting in that capacity and only in respect of official acts. This was identified in the Commentary as emanating from "the rule of general international law regarding the recognized public acts of one state in the territory of another. The performance of such an act should entail no responsibility, either civil or criminal, on the officer performing such
76
According to the Commentary "the distinction between 'serious' and other
offences is left to diplomatic discussion or international adjudication..."
Commentary, 338. 77 Commentary, 335.

78
According to the Commentary: "it is clear that a consul cannot perform his
functions in jail, thus the general duty of the receiving state to accord respect
and protection adequate to the exercise of consular functions suggests this immunity." Commentary, 336.
Harvard Research on International Law act.",79 It is interesting to note that the immunity is framed in terms of immunity from liability rather than the currently more acceptable formulation of immunity from jurisdiction. What is also clear from the formulation of Article 21 is that no immunity rationaepersonae was attached to the consul reflecting the immunity rationaepersonae of diplomatic agents.
The Contemporary Significance of the Harvard Draft Convention

The Harvard draft Convention on the Legal Position and Functions of Consuls was very much an instrument of its time. Its influence has been severely limited by a number of factors, most noticeably, the further development of consular functions generally and, more particularly, the growing assimilation between consular and diplomatic functions and the consequent developments in consular privileges and immunities. In relation to consular functions generally, the primary focus of the Harvard Research on commercial matters was somewhat limited even at the time of the draft Convention. The promotion of friendly relations between states, although considered superfluous by some, 80 is today considered as one of the key functions of consuls. This has resulted in the recognition of cultural matters as falling within the ambit of consular functions. 81 Similarly, the furthering of the development of economic and scientific relations between the sending state and the receiving state is now recognised as being a consular function.8 2 These are not the only increased functions ascribed to consuls in more recent times. The Vienna Convention on Consular Relations 1963 lists thirteen consular functions as opposed to the 11 listed in Article 11 of the Harvard Draft Convention. Additionally the more recent provision is considerably more detailed than its 1932 counterpart. 83 It is worth noting also the development of a draft European
79 Commentary, 339.
80
See Lee, supra n. 43, 58. on Consular Relations 1963.
81Article 5(b) of the Vienna Convention 82 id. 83 It should be remembered, however,
that the provisions in Article II are intended to be examples of broader consular functions exercised on the basis of

Convention on Consular Functions which emerged at the time of the Vienna Convention and which identified fifteen general consular functions as well as an addition eleven functions relating to estates of deceased persons and fourteen relating to shipping.84 Perhaps the most important difference between the Harvard draft and the Vienna Convention in terms of the consular function arises by virtue of Article 5(a) of the Vienna Convention which provides that "Consular functions consist in protecting in the receiving state the interests of the sending state and of its nationals, both individuals and bodies corporate, within the limits permitted by international law." It has already been noted that Article 11 of the Harvard draft Convention includes the taking of measures to protect a national vessel or any other interest of the sending state from injury as a consular function.8 5 However, the provision in the Vienna Convention is not only broader than the provision in the Harvard draft but, most importantly, envisages the consul's involvement in the protection of the interests of the sending state itself, a role which the Harvard drafters would, most certainly, have reserved only to diplomats. This illustrates the key development in consular relations since 1932, that is, the closer assimilation between the functions of consuls and diplomats. Thus, according to Lee, "in the modern society where the traditional politico-economic boundaries have been blurred and diplomatic-consular separations are narrowed, so are consular posts and officers increasingly assigned diplomatic functions., 86 Satow's discussion of the functions, privileges and immunities of consuls is more forthright in its declaration that the distinction between the functions of consuls and those of diplomats is not clear-cut.8 7 This development has occurred both ways in terms of consuls taking on diplomatic roles but also in relation to the assumption of traditional reciprocity and most favoured nation. See the discussion of consular functions above. 84 Council of Europe, Committee of Europe, Committee of Ministers, CM (64) 215, Addendum No. 1 (Strasbourg, 5 November 1964). Produced in its entirety in Lee, supra n. 43, Appendix 5, p. 284. 85 Article 11(j).
86
87 Satow's Guide to Diplomatic Practice (5th ed., Lord Gore-Booth ed.)
Lee, supra n. 43, 174.
Longmans, London and New York, 1979, para 27.1, 216.
Harvard Research on International Law consular roles by diplomats. Given the importance placed by the Harvard drafters on the commercial role of the consul, it is interesting to note Satow's conclusions that "one distinction that was formerly made between diplomatic and consular work is virtually obsolete. This was that the promotion of trade and commerce between the two countries was exclusively a function of the consul." 88 On the other hand, it should be noted that a contrary view has recently been expressed by the International Law Commission who have asserted in relation to their work on diplomatic protection that such protection "differs from consular assistance in that it is conducted by the representatives of the State acting in the interests of the State in terms of a general rule of international law, whereas consular assistance is, in most instances, carried out by consular officers, who represent the interests of the individual, acting in terms of the Vienna Convention on Consular Relations. Diplomatic protection is essentially remedial and is designed to remedy an internationally wrongful act that has been committed; while consular assistance is largely preventive and mainly aims at preventing the national from being subjected to an internationally wrongful act.", 89 It remains to be seen whether this will signal a return to a more structured distinction between the functions of consuls and diplomats as favoured by the Harvard Research. In spite of this recent development, the coming together of the two sets of functions in recent years has resulted in a much closer assimilation between diplomatic and consular privileges and immunities. Although consuls are not entitled to diplomatic privileges and immunities per se, the corresponding consular privileges and immunities, contained in the Vienna Convention on Consular Relations 1963, map more clearly onto their diplomatic counterparts. This arose partly as a result of the process of codification in the 1960s. In particular, the fact that the 1963 Convention and the Vienna Convention on Diplomatic Relations 1961 were both drafted by the International Law Commission and then negotiated by many of the same delegations goes a long way to explaining the broad assimilation. However, as has been
88
Ibid, para 27-3, at 217.
89 ILC Commentary on Article
I of their Draft Articles on Diplomatic Protection, paragraph 9, International Law Commission, Report of the fifty-eighth session (2006), A/61/10. Available at http://untreaty.un.org/ilc/reports/2006/ 2006report.htm.

explained above, the primary failing of the Harvard Research was to focus on the difference between diplomats and consuls as opposed to their similarities. Thus, as Lee makes clear: Although consuls are not diplomatic agents and are therefore not entitled to diplomatic privileges and immunities, they are nevertheless, officials representing the sending state in their consular district, admitted as such by the receiving state, and hence entitled to a different position from that of resident aliens. An act performed in the discharge of their official functions partakes therefore of the nature of an act of state, which, under the principle of the sovereign equality of states, lies outside the competence and purview of the law and authority of the receiving state. The near universal practice of amalgamating diplomatic and consular services as well as the increasing interchangeability of their functions have further reduced the raison d 'tre for according different privileges and immunities to consuls and diplomats.90 One of the most important examples of this relates to the issue of protection. This author has recently argued that, in the face of the emerging terrorist threat to diplomatic personnel around the world, the phrase diplomatic personnel should include both diplomatic agents and consular officers. 91 The evidence is clear that in targeting the representatives of states in order to make a political point, terrorists are not particularly concerned with the legal niceties of whether an individual is entitled to protection as a diplomat or as a consul. It is certainly the case that the relevant provision of the Harvard draft Convention would have been an inadequate source of the obligation on receiving states to provide for the protection of diplomatic personnel, including consular officials. Conclusions It is unfortunate that the only substantial discussion of consular relations in recent years has been concerned more with issues of human rights than the function, privileges and immunities of consuls themselves.92 Nevertheless, the lack of direct discussion of such issues suggests that the law is well settled in this area. The Harvard Research did a good job of drawing together a wide range of state
90 Lee, supra n. 43, 79 80. 91 Barker, supra n. 73, 20-22.
92
See the discussion of the Avena case above.
202
practice existing in 1932. Furthermore, the draft Articles themselves may have provided a useful starting point for the International Law Commission in its consideration of the question of consular relations. However, the resulting Vienna Convention on Consular Relations 1963 bears only a passing resemblance to the Harvard draft Convention. The best that can be said is that the Harvard draft Convention on the Legal Position and Functions of Consuls played some part, albeit a rather small part, in the development of the present law concerning consular relations.
Chapter 7
COMPETENCE OF COURTS IN REGARD
TO FOREIGN STATES
Hazel Fox "An endeavour to offer a set of rules ... acceptable to the States of the world" and one that does not "purport to be merely a declaration of existing international law." So stated the authors of the draft convention on competence presented in Part III of the Harvard Project.1 They were a strong research team: Professor Philip Jessup of Columbia University, the Editor of the draft convention, assisted by Francis Deak of Harvard, and an imposing list of advisers drawn from other U.S. universities, the State Department, embassies, and lawyers at the New York Bar.2 In the introduction to the draft, they firmly set out their conclusion: "because the State so frequently appears in present times as a litigant in the courts of other States ... this subject appears ripe for codification." That view was supported by State practice and by the conclusion reached by the League of Nations Committee of Experts for the Progressive Codification of International law.3 That Committee declared that there was no longer a consensus among jurists that States were entitled to immunity even in respect of their activities under private law.4 The peace treaties following World War I had
126 Am. J. Int'lL (Spec. Supp.) 455 725 (1932). See also the HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 6. 2 For the members of the research team, supra n. 1 at. 451; for the members of the Advisory Committee directing the whole research project, supra n. 1 at 6-9. 3 No further action was taken by the League of Nations Assembly but its identification of "the Competence of courts in regard to foreign courts" as one
topic suitable for codification gave sufficient impetus to the Harvard Law
Faculty to decide in February 1928 to include it in the second stage of its
research of international law with a view to preparing a draft convention and

explanatory memorandum on the topic. 4 22-28 June 1928, L.N.O.J. Supp. No.64, 143, 24 September 1928.
Harvard Research on International Law contained provisions for submission to the jurisdiction of national courts and similar provisions relating to the USSR Trade delegation were to be found in the bilateral treaties made by Germany, Italy and 5 Greece with the Soviet Union. Further support for the relaxation of the rule of absolute immunity was to be found in international conventions relating to transport where the State and private enterprises were treated on the same footing. The 1929 Warsaw Convention relating to International Carriage by Air applied its liability rules to carriage performed by the State, though permitting the State by declaration to opt out. 6 The Brussels 1926 Convention on the Immunity of State-owned Vessels provided the most striking illustration of the relaxation of the rule even going so far, not only to abolish immunity for claims brought in respect of the operation of such ships or the carriage of cargoes, but also, with the exception of warships and other State owned vessels used exclusively on governmental and non-commercial service, to apply to States "the same rules concerning the jurisdiction of tribunals, the same legal actions and the same procedure as in the case of privately owned merchant vessels and their cargoes."7 The Harvard Draft was more conservative in nature. In assessing its historical context and the modern relevance of the work this cautious nature should not be overlooked. It did indeed formulate two exceptions for business activities to the rule of immunity from jurisdiction and authorised the satisfaction of judgments out of State property if of immovable nature or used in connection with a business enterprise. But these reforms rather than being trumpeted, were discretely hidden in the text of the commentary. Only in explaining article 11 (the commercial exception) is the need to avoid unfairness to the private party openly stated, with earlier references in the preface and discretely referring to a "tendency" most marked in cases
' Referred to at p. 474 of the Commentary to Part III of the Harvard project,
supra n. 1 (hereafter numbers in the text refer to the page numbers in this Commentary). 6 Convention for the Unification of certain rules relating to International
Carriage by Air, signed at Warsaw, 12 October 1929. 7 International Convention for the Unification of certain rules relating to the
Immunity of State-owned Vessels signed at Brussels ,10 April 1926, articles 2,3
and 4, and additional Protocol, signed at Brussels 24 May 1834. CLXXXVI L.N.T.S.200.
Competence of Courts involving the business activities of the State to "enlarge the cases in which consent is implied." Even the proposed exception in article 11 is noted as "highly controversial;" Although 'the time is ripe to incorporate the distinction ... between private (business) and public (sovereign) acts of the State "it is noted that it is difficult to set up a standard for distinguishing between the two classes, and that "there is a present lack of unanimity on this subject." The draft was thus presented not as a radical reform but more as a set of practical rules of procedure for "litigation of disputes between a State and a national of another State." 8 It was conceivable that one State might institute proceedings against another in the courts of a third State, the forum State but the draft was not intended to introduce 'a new form for the adjustment of controversies between States. (Commentary, 494) And in drafting them it seems that a principal concern was the accommodation of foreign States' interests with the forum State and the latter's maintenance of friendly foreign relations. The private litigant's interest was of secondary interest and the modern stress on the need to distance the local courts from the executive and to ensure the independence of the judiciary wholly absent. The Harvard draft is divided into six parts: use of terms, States as complainants in the courts of other States, States as respondents in the courts of other States, procedure, enforcement of court orders and general provisions. Historically, the greatest interest is to be found in the second part of Part III in articles 7 to 13 which contain the commercial exceptions to the rule of immunity from jurisdiction and Part V which contains exceptions to enforcement. After a section examining article 8 relating to express and implied waiver, these provisions will be examined along with the other more established exceptions relating to immovable property and claims involving gift and succession. Reference will be made to the subsequent development of the international law in this area. Use of terms is treated in Part I, and Part VI is made up of a without prejudice clause in relation to the 1926 Brussels convention, a dispute settlement clause relating to the interpretation of the draft convention, and a provision relating
' As such, it was supported by decisions of national courts, listed on 5 pages and the views of jurists, listed on 7 pages, supra n. 1.
Harvard Research on International Law to State enterprises. These two parts, I and VI, are largely remarkable for their avoidance of most of the modern problems which have arisen in determining which persons and entities are to be included under the umbrella of State immunity. Part II, the first part of Part III and Part IV contain the rules of procedure for pleadings involving States, and their discussion and formulation, although largely drafted with US common law requirements in mind, continue to provide interesting material for some of the practical problems that arise today. The use of the word "competence" in the title is presumably taken from the term used by the League of Nations' Committee of Experts. It seems to be accepted as a simile for "jurisdiction" which is the term used throughout the draft and commentary. As a term "competence" was possibly more familiar to civil law countries-it appears in the title of the 1891 Resolution of the Institut de droit international(hereafter the Institut). Its dual meaning-"intemational competence" as the power under international law to adjudicate, and "national competence" as the allocation of jurisdiction to a particular national court was one to which the Harvard draughtsman was alert. The draft confines itself solely to matters of international competence, that is to the removal of immunity from jurisdiction and execution in certain restricted cases relating to business relationships and also provides special rules of procedure for claims against foreign States. It says nothing as to national competence, that is which courts, if any, are designated by national law, to adjudicate such claims, nor as to the substantive law to be applied to such cases. (Commentary, 495, 540) The Commentary is particularly careful to make clear that in conferring a right on a foreign State to institute proceedings in the courts of another State, it is not intended to require a State to open its courts for the enforcement of penal or revenue laws of another State, though it was free to do so if it chose. (Commentary, 496-502) Submission As the Commentary states, "immunity is in the nature of a personal privilege which may be waived by the beneficiary, rather than an inherent limitation upon the power of the court,... jurists and textbook writers almost without exception indicate that consent, express or implied, will remove the bar of immunity." (Commentary, 541)
Competence of Courts The Harvard draft in article 8(a) and (b), as the 1891 Resolution of the Institut had done before, 9 consequently made plain that the bar of immunity is removed when the State gives "express consent ... at the time of the hearing" or "when, after notification of the proceeding, it takes any step in that proceeding before asserting its immunity." All subsequent codifications have confirmed that immunity is lost where a State consents to the national court's jurisdiction, but elaborate more fully the means of expressing consent and the nature of the "step in proceedings" to be treated as implied consent. In like fashion, the institution of proceedings by a State is treated as submission on its part to the jurisdiction of the court in respect of a counterclaim arising out of the facts or transactions upon which the State's claim is based but not where the counterclaim is "indirect," that is based on facts or transactions extrinsic to those on which the complainant's claim is based, articles I (e) and (f), 5 and 6. These provisions are echoed in subsequent codifications.' 0 The Harvard commentary justifies this second part as "intended to require the State to choose between a plea of immunity and other defences which might be available; if the State in some way challenges the soundness or correctness of the complainant's case, it shall be deemed to have submitted to the jurisdiction of the court for the purposes of determining the case." An appearance in order to plead immunity will not serve to make the State a party to the proceedings. As regards express consent, the Harvard draft contains no requirement that it should be given to the court, providing that immunity is lost where consent to the institution of proceedings has been previously been give "by the contract upon which the proceedings is based" article 8(c), or "by treaty with the State in whose court the proceeding is brought" article 8(d), or "by law, or regulation or declaration in force when the claim of the complainant arose" article 8(e). That the extension of submission to such previous acts changed 9 Les seules actions recevables contre un Etat 6tranger sont : (4) les actions pour lesquelles l'Etat 6tranger a expressdment reconnu la competence du tribunal... l'Etat 6tranger qui, en rdpondant Aune action portde contre lui, n'excipe pas l'incomp~tance du tribunal, est reput6 l'avoir reconnu comme competent. '0 European Convention on State Immunity (hereafter ECSI) 1, 2004 U.N. Convention on State Immunity (hereafter UNSCI), art. 9.
Harvard Research on International Law its basis was perhaps not fully appreciated; consent was no longer an undertaking made to the particular court in which the proceeding was brought but a contractual obligation in respect of a particular transaction, a treaty obligation, or a unilateral declaration upon which reliance might be made or an estoppel based. Whilst the draft rejected any requirement of a territorial connection of the contract with the forum State, it restricted the treaty to one made with the State before whose courts the proceeding is brought. Formulated in this way, article 8 in the Harvard project repudiated the narrow rule, still operative in the English courts, where "despite its contractual engagement, the court has no jurisdiction if the State refuses its consent at the time of the institution of the proceedings" (Commentary, 549); but in doing so it ran into privity of contract or treaty difficulties. As to the first, although it favoured extending the benefit of a contractual waiver of immunity to a non-contracting person claiming in respect of acts covered by the contract, it concluded it to be undesirable to give so wide an effect. As to treaty, it restricted waiver to one made with the State before whose court proceedings were instituted. Later codifications have clarified this confusion by explicitly requiring any statement, whether contained in a written contract, international agreement, declaration before the court or written communication in a specific proceeding (italics indicate the added precision of later formulations) to make plain the scope of the subject matter to which consent relates and that such consent is given to the exercise of jurisdiction of the court in which proceedings are instituted. 1' Despite such formulations, disputes continue to be litigated as to the precise immunity waived-whether of jurisdiction or enforcement, whether confined to particular parties or contractual aspects of a transaction, whether restricted to the State or available to private parties, and of the court to which consent to its jurisdiction is given. The discussion under article 8(d) as to whether a waiver contained in a treaty with one State and the forum State may be invoked by a State not party to that treaty or its national has relevance to the application of the UN Convention on State Immunity when in force to such States as have not become parties to the Convention. The UN Convention, unlike the 1926 Brussels Convention, contains no express reciprocity clause. Equally the discussion as to the permis" ECSI art. 2, 2004 UNSCI art. 7.
Competence of Courts sibility of revocation of waiver in relation to article 8(e) remains relevant today. The commentary notes that its proposal that a State should be bound so far as acquired rights by a unilateral waiver in its law or other instrument is "not a statement of existing law" but "a reasonable and desirable rule" and "a reasonable protection to parties who may have entered into business relations with a foreign State in the belief that disputes arising from such relations could be adjudicated without being barred by a plea of sovereign immunity." (Commentary, 568) It was in fact a proposal not supported by US federal law and it is interesting to note that the US Foreign Sovereign Immunities Act 1976 (hereafter FSIA) in enacting that immunity might be waived "explicitly or by implication," added a qualification, "notwithstanding any withdrawal of the waiver which the foreign State may 12 purport to effect except in accordance with the terms of the waiver.,
The Exceptions to the Rule of State Immunity from Jurisdiction

The second part of Part IV states a general principle of immunity from jurisdiction and then sets out four exceptions to immunity where proceedings are brought in a national court against a foreign State, and in a fifth exception provides that the same four exceptions shall be available where proceedings are brought against State property rather than the State in person. The Harvard draft states the general rule excluding national proceedings as the basic principle of immunity, and as "the point of departure for jurists and the courts," following from the twin characteristics of States, independence and equality with each other.13 One sovereign cannot exercise jurisdiction over another. (Commentary, 527-528) This approach is one adopted by all subsequent codifications, though the European Convention after listing the proceedings in which an action may be brought against a State, would seem, by providing in article 15 that "States are otherwise immune," to state a residual rather than a general rule. The Harvard draft formulates the rule in procedural terms: "a State may not be made a respondent" whilst the UN State Immunity Convention
1228 U.SC. Section 1605(a)(1).
13 Cited as a justification for jurisdictional immunities by Briggs The Law of Nations (2nd ed. 1952), 442.
Harvard Research on International Law expresses the rule in wider terms "the State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State," article 5; and includes a separate article imposing an obligation on the forum State to give effect to immunity as provided in the convention, and to ensure that its courts determine on their own initiative that such immunity is respected, article 6.1. There is no requirement in the Harvard draft that courts should address the issue of immunity exproprio motu, or in the absence of the defendant State, but the provisions as to prior notice of the institution of proceedings, discussed below, effectively make such a power unnecessary. The justification for exceptions, as in the case of the forum State submitting to the jurisdiction of its own courts, is "predicated upon consent, whether express or implied.., the tendency seems to be to enlarge the category in which consent is implied. The trend is most marked in cases involving the business activities." Thus, proceedings are permissible as exceptions to the general rule of immunity set out in article 7: if the State manifest its consent in any of the five ways covered by article 8; if the proceedings relate to immovable property (article 9); or are directed against property in which the State's interest arises from succession or gift (article 10); or relate to the conduct of a business enterprise conducted within the territory of the foreign State (article 11) , or relate to shares in a corporation or other association owned by the State (article 12). Finally, an exception is made for proceedings in rem, that is which are not initiated by direct action against the State but by proceedings against its property but solely in respect of claims arising under the four exceptions listed above. The article by permitting the institution of a proceeding against the property of a State is stated not to authorize its arrest, seizure or attachment, matters which are more narrowly treated in Part V relating to the Enforcement of Court orders. The main innovation of the draft, and the one for which it is best known, relates to the proposal that there should be an exception for the conduct of a business enterprise carried on in the territory of the State of the forum. This proposal was not entirely novel. The Institut in article 4 of its 1891 Resolution proposed an exception for a commercial or industrial enterprise or a railway carried on in the territory of the forum State:
Competence of Courts
Les seules actions recevables contre un Etat 6tranger sont ... Les actions qui se rapportent un 6tablissement commercial ou industriel ou un
chemin de fer, exploit~s par l'Etat 6tranger sur le territoire. So far as railways were concerned, this exception was supported by early decisions in the Belgian and Netherlands courts refusing 14 immunity in proceedings brought against State-operated railways. Yet, as the Harvard project demonstrated, State practice, even with regard to removal of immunity in respect of proceedings relating to State operated railways, demonstrated a lack of unanimity. Decisions denying immunity in Belgium and Italy were contrasted with decisions in the US, French and German courts upholding immunity. (Commentary, 609-610) The draft lacks analysis of the legal nature of the link with the State required to permit immunity or its absence. Was it status or activity? If status, then the establishment, control, or funding of the entity would be relevant; if activity, then the nature of the activity whether private or public, contractual, tortious or delegation of a State function, the profit motive, and the extent of the State's consent would all be relevant. Indeed, the concept of a business enterprise on which the commercial exception to immunity from jurisdiction in article 11 was formulated contains elements of both. Proceedings were permitted where there was activity generated by such an enterprise though a single act performed within the territory of the forum State might be sufficient to remove immunity. It would even seem that damage sustained and claimed independently of any contractual relation might not attract immunity if arising from the conduct of such a business enterprise. The removal of immunity from
14 SA. des Chemins defer Liegeois-Luxembourg c, Etat n~erlandais (1903) Ct of
Cassation Pasicrisie belgique (1903) I 294; De Belgische Staat v. Societe du chemin de fer internationale (1900) Weekblad van het Recht (1902)
No.7812.Matsuda, Rapporteur for the subcommittee of the League of Nations Committee of Experts for the Progressive Codification of International Law, in
his conclusions dated 11 October 1928, printed as Appendix I to the Harvard draft at supra n. 1, 737, proposed as an exception to immunity on the basis of
"tacit waiver:" "3. actions relating to a commercial or industrial establishment

worked by a State or to a Railway exploited by a foreign State with which the State in question has concluded a convention relating to railway transport."
Harvard Research on International Law claims based on delict or tort was not, however, directly addressed in the Harvard project. The connection with the territory of the State in whose courts the proceedings is brought has been a persistent element in the definition of the commercial exception in the codifications. The Institut's 1891 Resolution required the commercial or industrial enterprise to be undertaken in the fbrum State territory; in similar vein article 7 of 1972 European Convention required "the office, agency, or other establishment" to be on the territory of the forum State, though switching its basis to activity, it also, in article 4, permitted an exception to immunity where the proceedings related to an obligation of the state which by virtue of a contract, fal/s to be discharged in the forum State territory. The Harvard draft also stressed the need for a territorial connection, but considerably reduced its significance by extending the commercial exception to a proceeding based upon a single act performed within the forum State territory in connection with a business enterprise "wherever conducted." This attenuation of a territorial link as an element in the commercial exception has finally been abandoned in the UN Convention on State Immunity which refers the issue to the determination "of the applicable rules of private international law" of the forum State; but even here, some shred of the former requirement remains in that the commercial exception is confined to a commercial transaction between a State "with a foreign natural or juridical person," article 10.1 15 The Harvard draft stresses the "profit motive," but does not generalise it either as evidence of the nature of the act as one of a private law nature, as opposed to the purpose of the act; nor is there any generalisation of the criterion of "general context," a test advocated by Lord Wilberforce in I Congreso16 and adopted in the application of the UK and other common law jurisdictions' legislation on State immunity. The draft's express exclusion of public loans would, however, seem to take into account the general context, the term "public loans" being stated as intended to cover "intergovernmental loans, whether or not traded on exchanges" and "in general this As to similarities in the territorial connection required in the commercial transaction exception in USFSIA.S.1604(a)(2) with the Harvard draft's formulation, see below text at n 3.
5
16 [1983]
1 A.C. 244 at 255.
Competence of Courts phrase in the text should be given a broad rather than a restricted interpretation." The commentary explains that' the borrowing of money might well fall within the description of "financial enterprise," but the public debt of a State is of a special nature deserving special treatment. (Commentary, 632)17 In an effort to render workable the initial, but problematic, distinction between private and public acts of the State, later codifications, case law and academic debate have identified as additional contributing factors the law applicable to determine the characterisation of the act, the actors performing the act, and the point in time in the transaction when it is performed. The Harvard draft undoubtedly treats activity which by its nature is governed by the law of the forum State as a factor in its formulation of at least three of the exceptions. The exception for immovable property in the territory of the forum State, which appears in all subsequent codifications, is supported by private international law's identification of the lex situs, i.e. the law of the forum, as the proper law to determine claims relating to immovable property. The commentary firmly rejects extending the general removal of immunity for immovables to movable property; "this would be without precedent and would largely nullify" the general rule of immunity set out in article 7. Instead, an exception to immunity is provided in article 10 for proceedings relating to the "acquisition by succession or gift of property subject to the jurisdiction of the forum State;" here again the proceedings are treated as non-immune by reason of the forum State's law being the applicable law to determine the claim. Whilst State practice existed to support such an exception where the State claims as an heir or legatee, its extension to gift was an innovation of the draft, followed in ECSI art.10 and UNSCI. Art. 13. A novel exception in the Harvard draft, which was to be the pattern for a similar exception in the European and UN Conventions, was a proceeding relating to State's title to shares in a corporation or other association for profit, 18 organized under the laws of the forum exclusion of public loans was openly abandoned in the UKSIA S. 3(3)(b) by removing immunity for "a loan or other transaction for provision of finance," although the previous subsection preserved immunity for such loans "if the parties otherwise agreed." 1" Charitable, educational or similar philanthropic associations were excluded.
17 The
Harvard Research on International Law State.1 9 Here too the link with the forum State's law was, as with the other two exceptions, the basis for the removal of immunity, but this exception also made a further inroad into the scope of activity of a State to be regarded as public or in exercise of sovereign authority. This was an important innovation which the European Convention extended to render non-immune proceedings relating to the whole
relationship arising out of a State's "participation with ...private
persons in a company, association or other legal entity having its seat registered office or principal place of business on the territory of the State of the forum," article 6. A similar exception now appears in the UN convention article 15, and its formulation, profiting from a point raised in the InternationalTin case, 20 extends its application to collective bodies which have "participants other than States or international organisations." Both the European and the UN Conventions take the restriction of immunity to matters governed by forum State law one further step by establishing an additional exception for proceedings relating "to a patent, industrial design, trade mark or other similar
right ...applied for, registered or deposited in the State of the 1
forum." The Harvard project did not accept the exception to immunity for immovable without careful consideration of the limits of the removal of immunity where the property of a diplomatic mission was in issue. It firmly asserts that the well established immunities protecting immovable property used for diplomatic missions would not be impaired by the institution of a proceeding against the State which owns or possesses such property. Article 23 which prohibits the enforcement of orders, judgments or decrees against property used for diplomatic or consular purposes, amply safeguards such immunities. The effect of [article 10] in respect of such property is merely to permit an adjudication of rights, leaving the question of enforcement to other methods. (Commentary, 578)
'9 In support of this exception, the commentary noted that the British Government's ownership of shares in the Suez Canal had not been raised as a bar to proceedings brought in the Egyptian Mixed Courts in relation to the Suez Canal company. (Commentary, 641) 20
Re the InternationalTin Council [1988] 3 All E.R. 257 at 357. In the UNSCL art.14(a), expressed as a patent, industrial design, trade name or business name, copyright or any other form of intellectual property which
21
enjoys a measure of protection, even if provisional, in the State of the forum article.
Competence of Courts All subsequent codifications include an exception to immunity for proceedings relating to immovable property, but at the same time contain a reservation that such a provision is without prejudice to the privileges and immunities enjoyed under international law by diplomatic and consular missions. 22 The establishment of intergovernmental organisations has required the extension of such a caveat to immunities enjoyed by delegations to international organisations, and in the case of the UN Convention, to international conferences. Immunity from Enforcement As with immunity from jurisdiction, the Harvard draft applies a rule of absolute immunity from enforcement, article 22. Thus, any action depriving the State of its control over property is barred, whether by direct attachment of the property or in garnishee proceedings, restraining the person in possession of that property from disposing of it in any way the State may direct. It is accepted that "even when a State may be made a respondent, either to an original proceeding or to a counterclaim, execution cannot be levied against its property." Two exceptions are stated in article 23 to the rule of immunity: where the property is immovable property or the property is used in connection with the conduct of an enterprise such as is described in article 11. In both cases, such enforcement as is allowed is closely linked to the implementation of the exceptions from jurisdiction for immovable property in article 9 and for the conduct of business enterprises in article 11. Although no territorial connection of the State property to be attached with the forum State is stipulated, the commentary makes plain that where enforcement is permitted it will be directed against property within the jurisdiction of the forum State. (Commentary, 701) As regards State immovable property located outside the forum territory, the lex situs may apply, but the actual determination of enforcement will depend on whether the law of the State where the property is located permits attachment or a similar order. Both exceptions permitting enforcement exclude property of the State used for diplomatic or consular purposes, "the larger interests of international relations" being recognised to prevail over the interests
12
ECSI art. 9, UNSCI art. 13(a).
Harvard Research on International Law of private litigants. This exclusion would presumably also extend to property in the service of the head of State or of government; the 1891 Resolution of the Institut dealt with this class of property expressly declaring as not subject to seizure the movables belonging to a sovereign or head of State, including horses, vehicles, wagons and ships, whether directly or indirectly employed in their service. The Commentary cites in support of its reservation relating to State property in diplomatic use a decision of the Czechoslovakian Supreme Court, where immunity was initially held to be no bar to proceedings brought by an assignee on the forced sale of a building in Prague owned by the Hungarian government, but later applied so as to vacate the order of execution when it was established that the building was at the time used for the purposes of the Hungarian legation. (Commentary, 704) The second exception, though formulated in wide terms as "property used in connection with the conduct of a business enterprise" is more narrowly restricted in the commentary to the effect that attachment of funds of the State in the local bank is only to be permitted where they are "definitely earmarked for the enterprise and are not the general funds of the national treasury." Other examples given where attachment is permissible are "rolling stock of a State railway found in the territory" and "tobacco, used in a carrying on a State monopoly, stored in a warehouse" in the forum territory. (Commentary, 706) Later codifications have followed the cautious approach of the Harvard draft only allowing enforcement against State property either specifically allocated for satisfaction of the claim or having a connection with the subject matter of the claim or the entity against which the proceedings was brought.24 The UN Convention also introduces more restrictive powers of enforcement in relation to prejudgement orders of the national court and, in addition to property of diplomatic and consular missions, where it specifically includes as protected a bank account, lists four other categories of State property immune See the 2001 Vancouver Resolution of the Institut, article 4(1) prohibiting attachment of property belonging personally to a head of State or head of government located in the territory of a foreign State except to give effect to a final judgment and in any event no "measure of execution to be taken against such property when a head of State or of government is present in the territory of a foreign State in the exercise of official functions." 24 UNSCI art. 19.
23
Competence of Courts from attachment: property of a military character, of a central bank or other monetary authority of the State, forming part of the cultural heritage or archives of a State, and forming part of an exhibition of object of scientific, cultural or historical interest. Only the UK legislation permits attachment of property of the State in general use for commercial purposes, 25 and the US statute authorises similar enforcement of a final arbitration award, though not a court judgment, against a State.26 The final sentence in article 23 prohibits the making of any order or judgment of a punitive nature against State property; a prohibition which remains particularly important in restricting a State's failure to comply with US law relating to discovery of documents or the award of punitive damages. The national court is not forbidden to order security for costs, particularly where a foreign State institutes the proceedings but the sanction will be suspension or dismissal of the suit, not direct enforcement. Article 24 permits a State to give security, if deemed by the court as sufficient, as satisfaction of any judgment which may be rendered, and will release all other property of the State from attachment relating to any such judgment. This novel provision does not seem to have been copied in later codes. The Definition of the State The actors who perform the activity are an important element in the identification of an activity as of a private or public character. But the question is really one relating to the definition of the State for the purposes of the law of immunity. The Harvard draft did not consider it necessary to include a formal definition of a State, deeming it sufficient to indicate that the term was used in its international connotation. (Commentary, 475) Whilst, under article 2, the capacity of a State to sue in the courts of another State is said to be a matter of right, not comity and the status of State to be no ground for a refusal of permission to institute proceedings (Commentary, 494) by article 3, the forum State is authorised to withhold such permission if it does not recognise the State or does not maintain diplomatic relations with it. The current problems relating to the inclusion of the head of State,
25 SIA S.13(4).
16
FSIA S.1610(a) 6.
Harvard Research on International Law head of government or other high ranking officials within the definition of the State for purposes of immunity are well-known, but at the time of the Harvard project these issues had given rise to little litigation and were dealt with in the draft in general terms or by leaving on one side difficult issues. By article I no distinction in the rules is made as to the position of the State,27 its government or head of State, (though in dealing with enforcement the commentary notes that "the exemption of the person of a head of State or imprisonment seems obvious." (Commentary, 690) The Commentary concludes that all are treated as inseparable in practice, with "no material distinction to be drawn between a State and a person who is the head of State, at least while he holds that position." (Commentary, 476) Political subdivisions of the State were excluded from the draft, as a separate topic to be subject to its own study, there being no rule of international law on the matter-not enough State practice, and such practice that there was being divided.2 8 Although the draft boldly generalised an exception to immunity from jurisdiction for business enterprises carried on in the forum State territory, it did not appreciate that the identification of such an enterprise raised similar issues of structure, control and connection with the State as "juristic persons as corporations or associations for profit separately organised by or under the authority of another State," which were dealt with in a separate article. The underlying question whether status or activity was the basis for the grant of immunity was not addressed. Instead, as regards State trading entities, the matter was left to the discretion of the particular forum State, it being provided that a State need not accord immunity to corporations or associations for profit separately organised by or under the authority
27
The term State is treated as including the British Dominions and Members of
the League of Nations, but excluding protectorates, mandated territories and

groups whose insurgency or belligerency has been admitted but which have not yet achieved independence. Diplomats and consuls were dealt with in separate
conventions prepared by the Harvard Research and it is to be noted that the

definitions of "State" in those conventions differed from that in the draft on Competence, supra n. I at 19, 193. 28 The draft, however, was intended to be applicable by the signatory States to proceedings in all courts within their territory or under their jurisdiction so it was necessary to define a "court of the State" as " a judicial tribunal ... created by the State or a political subdivision thereof," article l(b).
Competence of Courts of another State, regardless of the nature and extent of governmental interest therein or control thereof (article 26). After stating that there appeared to be no reason why such business corporations should be treated differently from privately owned or controlled corporations, the Commentary states: Insofar as instituting actions in the courts is concerned, the effect of this article [article 25], combined with article 2, is to leave the States free to grant or withhold from State-owned corporations permission to sue, as the State sees fit. Insofar as being made a respondent is concerned, the effect of this article is to leave State-owned corporations subject to suit in accordance with local law, on the same basis as other corporations (subject to any special position accorded by treaty or convention). (Commentary, 716) In effect, the Harvard draft seems to have disposed of the immunities for State agencies in the same way as it did those of the State. It was solely a question of discretion-recognition-by the forum State. That an agency engaged in a single transaction might benefit from immunity in the courts of one State and not of another seems not to have worried the draughtsman, nor was it seen as a reduction of immunity to a matter of national discretion rather than international law. By its failure to see the availability of State immunity for political and trading entities as a necessary and unavoidable element of the international law on the topic, the draft provides little assistance as to the criteria which international law, independently of national law, should require to entitle an entity to come within the protection of State immunity. The identification of the entities that may benefit from State immunity in proceedings in national courts, whether as political subdivisions or trading entities, has caused persistent problems in the international law of State immunity, in particular with regard to the closeness of the relationship required to entitle such entities to claim State immunity. Various solutions have been adopted; the European Convention treats political divisions separately in that it permits federal State Parties by declaration to extend the immunity afforded in the Convention to their constituent States. As regards State trading entities, the European Convention opts to treat them as private persons, and only affords immunity where they perform acts of a public nature, "in the exercise of sovereign
Harvard Research on International Law authority," and not merely because they have "been entrusted with public functions." Difficulties in applying this distinction to the variety of trading entities operated by States has led after much debate to an uneasy compromise being adopted in the UN Convention on State Immunity, by which constituent units, political subdivisions and agencies and instrumentalities of the State are included within the Convention's term "State" where they are both "entitled to perform acts in the exercise of authority' and 'are actually performing acts in exercise of sovereign authority," article 1.1 .(b) (ii) and (iii). Procedure All codifications of the rules of State immunity, whether by convention or national legislation, though they purport to apply the same rules as a private party where the foreign State undertakes a business activity as a trader, in practice provide special rules as to service, procedure and evidence. The Harvard draft frankly accepts this position:
Special rules for complainant states as distinguished from complainant private persons would be proper, but these rules should not be framed ad hoc to apply to one particular litigation. (Commentary, 4)
It is the first instrument to formulate precise rules. In this respect, it s much more specific than later codifications which tend to leave the regulation of procedure to the law or courts of the forum State. Article 15, described as "frankly legislative," requires a State instituting proceedings 29 in a court of another State to give notice thereof to the government of the forum State through the diplomatic channel, and failure by such a complainant State to conform to the usual rules of the forum, "empowers the State of the forum to treat compliance with the rules of the forum as a condition of the institution or continuance of a proceeding, and accordingly authorises it to stay or suspend the proceedings until the complainant State does comply." (Commentary, 506) So far as the individual complainant is The expression "institutes a proceeding" is intended to have a broad meaning including: all proceedings for setting in motion the judicial process; intervention
29
in a proceeding; joinder as a party complainant or respondent; and another party seeking to draw in a State by interpleader or otherwise. (Commentary to Article I(d) at 490)
Competence of Courts concerned, institution of proceedings against a State requires the permission of the court which is not to be given until the forum State gives notice to the foreign State of the intended proceedings and after reasonable opportunity is given to the latter State to object to the jurisdiction of the court, article 19; the foreign State is given a choice of raising its immunity directly before the court, or "to relieve a State from the annoyance of responding to frivolous claims," of requesting the executive or administrative officers of the forum State to notify the court of the State's objection "without obligation to comment on the merits of such a claim of immunity," article 20. Whilst, admittedly, this article was designed to establish "a suitable means for the service of process" on a State, a second acknowledged purpose was to provide the State of the forum with "an opportunity to see to it that its international obligations are fully met." (Commentary, 677) All these articles thus establish the forum State as the supervising authority throughout the proceedings, and one primarily concerned to preserve friendly relations with other States, even where they are permitted to sue private parties in the courts of another State. The rules show little awareness of a need for independence of the judiciary or to distance the courts' disposal of claims from the control of the executive; in this respect, the draft convention reflects the close relationship between US courts and the federal executive where matters of foreign relations are concerned-a relationship which continues even today by which a suggestion of the State Department of immunity or its withdrawal is applied without challenge by the US courts. A general concern in favour of fairness is demonstrated by the draft but there is no attempt to secure equality of arms between State and private litigant. In addition to the requirements relating to notice to the forum State of the institution of proceedings, Part IV of the draft lays down a number of procedural requirements. Article 16 makes provision, though not compulsory, for the appointment of an agent within the jurisdiction of the court to represent the foreign State for the purposes of the proceedings; and article 17 requires a State, if it wishes to avail itself of the privileges and immunities which appertain to a State, to indicate clearly that the proceedings is instituted by the State. The provision for appointment of an agent is designed to overcome the inability to serve proceedings on diplomatic agents, and considered a better solution than treating institution of proceedings as an implied
Harvard Research on International Law waiver of the immunity from service of process of such agents. Once the private litigant has obtained permission to institute proceedings against a State, article 19 permits the transmission by the court of all subsequent notices or process to the designated representative of the State or failing such designation to the principal diplomatic or nearest consular officer of the respondent State within the territory of the forum State. Article 25 prohibits the restricted enforcement of judgments or orders allowed by articles 22, 23, and 24 until the State has been notified and given adequate opportunity to object to such enforcement. The provision relating to the production of documents and evidence by a State is somewhat more favourable to the foreign State than later codifications. Article 18 provides that a State shall not be required to produce documents or evidence as to matters which it deems a disclosure incompatible with its general national interests or to produce a witness having diplomatic immunity. But it then quailfies this generous exclusion by providing "that if the State declines to produce documents or evidence, the proceeding may be stayed or dismissed in the interests of justice." The Commentary defines "general national interests" as "broad questions of State policy and welfare," recognising that it is unjust to permit the withholding of evidence pertinent to the argument in the proceeding. The decision whether to produce evidence is firmly left with the foreign State: "on questions of general state policy ... is obvious that a State would it not and should not be asked to produce such documents. Nor is it desirable in such cases to leave to the court the decision whether the general national interests of the State would be prejudiced; this must be left to the good faith of the State." (Commentary, 665) Subsequent codifications, although recognising the impossibility of coercing the foreign State to give evidence by imposition of any penalty, have sought to redress the balance more openly. Thus, ECSI. art. 18 provides that "the court may draw any conclusion it thinks fit from failure or refusal" to disclose any document or other evidence, but recognises that "the refusal of a State to produce evidence is generally based on a desire not to divulge secrets more especially for reasons of national security." The UN Convention on State Immunity deals with this sensitive issue by omission rather than regulation: article 24 provides that any failure or refusal by a State to produce any document or disclose information "shall entail no consequences
Competence of Courts other than those which may result from such conduct in relation to the merits." The ILC Commentary elaborates that the relevant rules of the internal law of the forum State will determine such "other consequences" and that in the domestic rules of procedure of any State, the refusal, for any reason, by a litigant to submit evidence would allow or even require the judge to draw certain inferences which might affect the merits of the case.30 However, in respect of proceedings for the dismissal or termination of employment of an individual for work to be performed in the forum territory, which would in general fall within the exception to State immunity for contracts of employment, immunity is preserved where the head of State or head of Government or Minister of Foreign Affairs determines "such a proceedings would interfere with the security interests" of the employer State, article 11. An annexed undertaking to this article states that the "security interests" of the employer State is intended primarily to address matters of national security and the security of diplomatic missions and consular posts.
The Harvard Draft Convention and the Later Development of the Law
There was little discussion of the Harvard draft in contemporary journals, and the outbreak of the war in 1939 led to any reform being put aside for more immediate concerns. One might have expected that Lauterpacht in his 1952 article in the British Yearbook which was influential in provoking change in English law, would have referred to it, but, though it contained a review of contemporary US case law, he did not mention the draft. Herbert Briggs of Cornell University, however, in The Law of Nations, cited the Harvard draft on competence extensively in his chapter on jurisdictional immunities, referring particularly to its provisions on the foreign State as a party, waiver and counterclaims, the commercial exception in article 11 and execution. 31 The Harvard draft undoubtedly proved useful to civil courts which, after the Second World War, were looking for support to abandon the absolute rule of State immunity. In the 1950s and 1960s,
I.L.C. 1991 Commentary to article 22 (now article 24). The Law of Nations (1st ed. 1938, 2nd ed. 1952), 155, 411-12, 446451.
30
31 Briggs
Harvard Research on International Law carefully reasoned decisions in the Austrian Supreme Court and West German Constitutional court prepared the way for a general recognition of a restrictive rule of State immunity. In Dralle 1950, the Austrian Supreme Court held that the court had jurisdiction to determine as a private law matter, jure gestionis, and hence held as not immune a claim for infringement of an Austrian registered trademark by an expropriation decree of the Czech government. In an extensive review of State practice, much of which was drawn from the Harvard research, the Austrian court set out in full the Harvard draft's exception to immunity for business enterprises and noted that it stated "it was time to lay down such a distinction [between actajuregestionis and actajure imperii] in an international codification." In a similar extensive review of the authorities in the Empire of Iran case 1963, the Federal Constitutional Court of West Germany (East Germany still being a separate State) held there to be no immunity for a claim for repairs carried out at the Iranian embassy in Bonn on instructions of the Iranian ambassador. The Court referred to the Harvard Law school study group's 1932 draft on jurisdiction over foreign States as "espous[ing] the doctrine of limited State immunity and stated that, despite certain difficulties, it was time to establish in a convention the distinction between actsjure imperii and acts jure gestionis. '32 In the 1970s, when the pace of codification quickened, the Explanatory report to the European Convention in its introduction referred to the Harvard draft as "also worthy of mention with the ILA report on 45th Conference 1952, and IBA Salzburg July 1960." Somewhat surprisingly, neither the 1952 Tate letter, nor the House Report accompanying the US FSIA nor the US Restatement 2nd 1977 make any reference to the Harvard project, but it would seem that the wording of first two parts of the commercial transaction in Section 1605(a)(2) follow closely the shape of the Harvard draft's article 11: immunity is first removed for a commercial activity carried on in the US, as opposed in the Harvard draft to "a ... commercial enterprise undertaken" in the forum State territory; secondly, removed for an act performed in the US in connection with a commercial activity of the foreign State elsewhere, as opposed in the Harvard draft to "does an
12
See draft article 11, with background information and commentary, supra n. I
at 451, at para .6(a) of the Judgment.
Competence of Courts act there (i.e. in the forum State) in connection with such an enterprise wherever conducted." Only in the third part of the section is the FSIA's commercial exception extended to an act performed and commercial activity carried on outside the United States with "a direct effect" in the U.S. being the sole territorial connection with the jurisdiction required.33 Mr.Sompong Sucharitkul, the Special Rapporteur of the International Law Commission in its study of the jurisdictional immunities of States and their property, in his preliminary report mentioned the Harvard draft along with the resolutions of the Institute of International Law and the International Law Association as having a "direct bearing on the topic under review. 3 4 In the 1991 draft articles of the International Law Commission which formed the basis for the present UN Convention on State Immunity he took account of the Harvard Research proposals in articles 9, 10, 11 and 12, in drafting exceptions to immunity from jurisdiction for proceedings relating to immovable property of the State; its acquisition by succession or gift to property; commercial transactions and a State's participation in a company. The project's article 11 received particular mention in the Special Rapporteur's Fourth Report for its definitions of "business, sufficiency of a single commercial act to permit removal of immunity, assimilation of the State to a private person with regard to activities of a business enterprise, and the identification of profit as a criterionall elements for consideration in the formulation of a commercial transaction exception to immunity." However, as the Harvard draft was silent as to any exceptions from jurisdiction for employment contracts, personal injuries or loss to tangible property caused by act or omission of the foreign State, patents, trademarks, and other intellectual property, fiscal liabilities and customs duties, and arbitration agreements, it provided no guidance to the ILC in formulating exceptions to immunity on these matters. 35 The draft equally made no
33 The FSIA's use of the term "transaction" also would seem to be derived from
the draft which compared it to the French expression "causes et faits," and stated that "although American judicial experience indicates some difficulty in fixing
the meaning of this term, it is believed to be sufficiently clear to permit its incorporation in the Convention." (Commentary, 493). 14 1979 III.L.C.Yb. 231, Preliminary Report. " 5th Report, 1983 IJIL.C Yb., Part 1.51, para.1.39, fn.154.
Harvard Research on International Law proposal as to an exception for ships employed in commercial service, but expressly excluded these matters as being recently covered by the Brussels 1926 Convention for the Unification of certain rules relating to State owned Ships. 36 Unlike the 1981 and 1951 Resolutions of the Institute of International Law and the 1982 Montreal Convention drafted by the ILA which were cited to identify "the salient factors" to be included in drafting the general rule of State immunity from attachment, arrest and execution,37 no reference was made by the ILC Special Rapporteur to the Harvard draft's rather limited proposals in its article 23 permitting enforcement of judgments of the courts solely against immovable property or property used in connection with a non-immune business enterprise.
Concluding Remarks
The above account has sought to place the Harvard draft in its historical context and indicate the extent to which its formulation of articles and argument in the accompanying commentary influenced subsequent codifications of the law of State immunity. Clearly, there were omissions attributable more to lack of analysis as to the nature of a rule of international law relating to State immunity rather than to its practical formulation. The Harvard draft's business enterprise exception to State immunity from jurisdiction of national courts broadly encompasses the exception which later codifications and national courts still apply to permit proceedings in national courts for commercial activities between States and private contractors; only when the detail was questioned in litigation did it become necessary to examine the underlying structure. Thus, the omission to define with greater accuracy the persons and entities covered by the term "State" or whether acts extended to those causing damage outside a contractual relationship only became apparent with the greater involvement of the State in commercial affairs and the increased penetration of international standards, particularly those relating to the human rights of the individual, into the application of municipal law by national courts. Harvard draft Convention, art. 27 and Commentary 562 565, declaring that the two conventions would complement each other if and when they came into force.
36
37 1985 11LL.C.Yb. , Part 1, 37, paras. 79-82.
Competence of Courts To modern eyes, the Harvard draft appears strongly Stateorientated. Although, throughout, the commentary asserts that it is applying international law, though sometimes legeferenda rather than lege lata, it treats the subject as an extension of diplomatic protection rather than an independent topic concerned with the enhancement of the position of the individual in international law. In diplomatic protection, the decision to take up, waive, compromise or discontinue the claim, irrespective of the wishes of the individual national, rests with the espousing State. This element is also present in the Harvard draft; the rules in Parts I and IV relating to procedure ensure that the institution and continuance of the claim by a private party is kept under the control of the forum State. Similarly, the licence to the foreign State to pursue business claims in the forum State is little more than an extension of the exhaustion of local remedies rule. By the requirement of prior notice to it of the institution of a claim the foreign State is given an opportunity to dispose of the claim by other means, and the additional means offered for settlement through the national courts of the forum State are supervised by the latter State's executive to ensure that its foreign relations and the interests of the foreign State are not jeopardised irreparably. The draft was never implemented, so whether it would have introduced a liberal regime or maintained a State-regulated system is impossible to judge. It certainly reserved a large area of the subject for discretion of the forum State; a position which still obtains in US law, as illustrated by the 1996 amendment of the FSIA by the Antiterrorism and Death Penalty Act which permits removal of immunity in respect of claims for certain acts causing personal injury or death, but only against a foreign government designated as a State sponsor of terrorism; States not so designated continue to enjoy immunity in respect of such claims but only "as a gesture of comity" and not so as "to shape their conduct in reliance on the promise of future immunity., 38 The hesitancy of the Harvard draft to state its rule of immunity and the exceptions as founded on international law permits the present day US approach to the subject as nothing more than "the forum State's waiver of adjudicatory jurisdiction over a foreign
38 Republic of Austria v, Altmann U.S. Supreme Ct 4 June 2004.
Harvard Research on International Law State."3 9 It will be for States by their decision whether or not to ratify the UN Convention on State Immunity to show whether such a unilateral appraisal is justified as an accurate representation of international law. In sum, an assessment of the value today of the Harvard draft must be favourable in that it identified a means through the use of national courts for the settlement of commercial disputes between private parties and States, but adverse in that it did not at the same time require that such resort to national courts should comply with a rule of international law requiring impartiality and uniformity compatible with the standards of universal justice. Discrimination between litigants may be compatible in diplomatic and political relations, but is difficult to maintain as a rule of international law where national courts and municipal law are deployed to settle claims.
'9 Caplan, 97 Am. J. Int'lL. 741 at 755 (2003).
Chapter 8
PIRACY
Alfred P. Rubin "Piracy" is frequently referred to as the quintessential example of "international criminal law." 1 But, despite the rhetoric, examples of any legal results flowing from that characterization are very rare. The first American statute relating to "piracy" was passed in 1790 and immediately ran into difficulties. It provides, in its section 12, for example, for designating as "pirates" those giving assistance to "pirates." Among the first defendants were two pilots, surnamed Howard and Beebee, in Delaware who in 1818 had guided a suspicious vessel to anchorage. 2 The two defendants were acquitted by a jury. The second statute 3, which survives today, was passed in 18194 and continued in 1820. 5 It tries to avoid the problems of the 1790 statute by making criminal at United States law "piracy as defined by the law of nations." Since, as noted below, there is no clear definition of piracy under the presumed "law of nations," this amounts to delegating to judges the capacity to define a "crime" after it is committed. But "common law crimes," while theoretically possible, have not been considered a proper basis for criminal prosecution in the United States since 1816.6 It is an interesting sidelight on this discussion that
1A
full study of the history of the concept and the statutes and treaties trying to
criminalize "piracy" is Ru bin, The Law of Piracy (1988), Naval War College "Blue Book," Vol. 63; a revised and expanded edition was published by Transnational Publishers in 1998. 2 U.S. v. Howard &Beebee, 26 F. Cas. 390; 3 Wash. C.C. 340 (1818). ' 18 U.S.C. 1651 (1936). 4 3 Stat. 510 (1850) 510. 5 3 Stat. 600 (1850) 600. 6 See United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816) (plurality finding
that, where the Attorney-General declined to argue the case and in the absence of positive law, the Court will not find jurisdiction over common law offenses against the United States; Story, J., dissenting, that "all offenses within the admiralty jurisdiction are cognizable by the circuit court, and in the absence of positive law, are punishable by fine and imprisonment").
Harvard Research on International Law the American jurist most insistent on maintaining the validity of the statute of 1819 was Joseph Story,7 who dissented from U.S. v. Coolidge in 1816.8 Above the current (1936) codification of the law of 1820, the following note appears: "In light of far-reaching developments in the field of international law and foreign relations, the law of piracy is deemed to require a fundamental reconsideration and complete restatement, perhaps resulting in drastic changes by way of modification and expansion ... There has been no known criminal ,9 conviction under the 1820 statute for over a century, although it has been discussed in several cases. Although "common law crimes" survive theoretically in the United Kingdom, "piracy" was defined there by statute in 1700.10 But the British definition seems to have had "pirates" subject to British courts in mind rather than a generality. Indeed, article VIII of the Statute expressly refers to "Pirates" as those who are "naturalborn Subjects, or Denizens of this Kingdom" committing "any Act of Hostility, against others his Majesty's Subjects ... under Colour of any Commission from any foreign Prince or State." There are repeated references to the reach of the Parliament of England, presumably a reference to its jurisdiction to prescribe. 1 Attempts at codification have been made internationally. The League of Nations attempted one in 1926. This purported codification was severely criticized and eventually dropped as not "of sufficient real interest in the present state of the world to justify its inclusion in the programme of the [proposed] conference," and the Assembly of the League requested the Council to arrange for the codification conference without including "piracy" in its proposed agenda. The Harvard Research was the result. A Committee was set up by the Harvard Research program to consider the international law of "piracy" independently of the efforts of the League and its Reporter (M. Matsuda). With no disrespect intended toward the Californians,
7 See
United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (finding that an act of piracy, as defined by the law of nations, is to be punishable under the Act of Congress of 1819). 8 14 U.S. (I Wheat.) 415 (1816).
9
18 U.S.C. 1651 (1936).
11 & 12 Will. III c. 7 (1700). 11See Adm. W.H. Smith, The Sailor's Word-Book (Rev'd ed., Adm. Sir E. Belcher, 1867), 529 530, esp. the definition of piracy at 529.
10
Piracy who included many scholars, of the 15 named advisers, only three were resident outside of California, and they included one from the West Coast, one from Idaho, and Professor Harold Sprout of Princeton. The Harvard Research reporter was Professor Joseph W. Bingham of Stanford University. The result of this effort was a full draft Convention of 19 articles, 1 2 the last one, obviously relevant to "piracy" and de lege ferenda, being a commitment to the peaceful settlement of disputes arising out of the interpretation or application of the Convention and referring to arbitration by a panel set up in 1907 or adjudication by the Permanent Court International Justice set up in 1920. The Harvard Researchers recognized immediately that the public international law relating to "piracy," if any such existed, had to be analyzed separately from municipal law: "[P]iracy under the law of nations [by which the authors clearly meant public law, although the coincidence of the two is subject to challenge, but this is not the place to analyze the matter further] and piracy under municipal law are entirely different subject matters and ... there is no necessary coincidence of fact-categories covered by the terms in any two systems of law."' 13 The Harvard Researchers adopted the view that "pirates are not criminals by the laws of nations, since there is no international agency to capture them and no international tribunal to punish them and no provision in the laws of many states for punishing foreigners whose piratical offense was committed outside the state's ordinary jurisdiction.... ,,14 The Harvard Researchers adopted this view, not only for purposes of discussion, but as the jurisprudential basis for their draft Convention: "The theory of this draft convention, then, is that piracy is not a crime by the law of nations. It is the basis of an extraordinary jurisdiction in every state to seize and to prosecute and punish persons, and to seize and dispose of property, for factual offenses which are com12 26
Am. J.Int'l L. (Supp.) 1 at 5 (1932), giving the background of the Harvard
Research effort, and 738, listing those concerned with the Piracy project. The
draft Convention appears at 743 and the Comments thereon at 767. See also the
HarvardResearch in International Law (reprint by W.S. Hein, 2008); the text of the draft convention appears below as Appendix 7. 13 Ibid., 749. The Researchers recognized this split at 752 and 754. 14 Ibid., 756.
Harvard Research on International Law mitted outside the territorial and other ordinary jurisdiction of the prosecuting state and which do not involve attacks on its peculiar 15 interests." As to the key jurisdictional point, the Harvard Researchers do not seem to have undertaken the research proper to their product. Instead, resting on argumentative secondary sources, much of it by scholars who do not seem to have done much primary research either, the Harvard Researchers said: "Indeed it is difficult to find cases of exercises of jurisdiction over piracy which would not be supported on one or more of the ordinary grounds. They are very rare." 16 Recourse is then had to writers who support "universal jurisdiction," not on the basis of state practice, real incidents, diplomatic correspondence and municipal court cases referring to what was asserted to be international law by a municipal judge, but on the basis only of the writers' conceptions of the structure of the international legal order and filtered interpretations of state practice asserted to exist but difficult to demonstrate in particulars. Thus "naturalist" scholars, such as Judge Joseph Story, are quoted extensively, but their conclusions and jurisprudential viewpoint are not adopted. Instead, the most influential single publicist whose views are cited at length and for many points of approach, is a German "positivist," Paul Stiel. 17 Stiel regarded the jurisprudential split between "naturalists" and "positivists" as a split between Anglo-American jurists, whom he regarded as "naturalists," despite the cases and the writings of John Marshall, Richard Henry Dana and others, and the "Kontinentalen" as positivists, despite the writings of Grotius, Pufendorf and others. From this point of view, and without much detailed analysis, Stiel concluded that a definition is possible: "Piracy is a non-political professional course of forcible robbery against nearly all countries undertaken at sea." From this he isolated the elements of the legal concept, including location (high seas, the word "high" seems to have been inserted by him here), physical means (force), intention (to take property), and whom (anybody, disregarding his own modifying word, "nearly"), purpose (private enrichment), etc. Since this framework excludes
15Ibid., 760.
16 Ibid., 751. 17 See Stiel, Der TatbestandDer Piraterie(1905).
Piracy privateering or the regular course of raiding attributed (falsely) by many European publicists to the Barbary States before 1830 and to others, and yet such activities had been routinely been called "piracy" by many European scholars and some European (and American) courts, Stiel had some difficulty. He resolved this, not by reconsidering his definition or breaking the concept into parts, but simply by asserting the old state-authorized "piracy" to be obsolete, even though there seemed to him to be some similarities between the acts for which a "piracy" conviction was obtained by English officials in Singapore in 1858 and the Roman practice against Illyrian raiders. His analysis is not deep and his assertion about the Malayan case of 1858 is unattributed and not evidenced in any other known source; his citation to Roman practice is not to any original source, but to the great 19th Century German historian of Rome, Theodore Mommsen. This leads Stiel into further difficulties when he finally comes to consider the doctrinal aspect of Sir Stephen Lushington's opinion in The Serhassan (Pirates)case, and those difficulties are avoided rather than solved by relegating the discussion to the section on political ends, denying that the legal concept of "piracy" applies to political actors, but finding some States to be capable of being classified "piratical" because they lack political goals for their takings. It is not at all clear that the desire of the Serhassan communities to be free of British visits and other influences, which prompted the attack on British warships that led to the punitive raid held by Lushington to entitle the victors to the bounty paid under British statutory authority to those who engage "pirates," was non-political, and Stiel does not explain why he classifies it as such. Similarly, the British position in the Huascar correspondence with Peru is not analyzed. In that correspondence, the British suggestion that unrecognized "rebels" can be properly considered "pirates" as a matter of international law is dismissed by Peru and British non-governmental experts'8 as questionable because, as long as the rebels' victims are only government vessels of their
18Rubin, The Law of Piracy (2nd ed. 1998), 291-304, listing all primary
sources.
Harvard Research on International Law own State, nobody would consider them "pirates," and an ad hoc denomination as "pirates" solely because of the nationality of the victim vessel seems more than any criminal law conception should bear. Now, none of this analysis of Stiel diminishes the utility of Stiel's proposal de legeferenda for the law of "piracy" as it might have been acceptable to States in the early years of the 20th Century, and the use of Stiel's suggestions regardless of the doubtful soundness of the historical and legal evidence on which they rest is justified for that purpose. Indeed, there is much in Stiel's work that could as well have been based on a more thorough analysis, and, regardless of soundness, seems consistent with the conclusions possible to reach from cases and jurisprudential discussions. In taking the general orientation proposed by Stiel as the basis for their own draft, the Harvard Researchers thus did not necessarily diminish the value of their proposal as an exercise de lege ferenda. In their use of earlier scholarship in general, however, the Harvard Researchers themselves seemed somewhat confused. Long quotations from Stiel are preceded or followed with what appear to be supporting quotations from a variety of sources addressing different problems from different jurisprudential perspectives and at different times. Art. 3, the definition of "piracy" for purposes of the draft Convention, quotes at some length from what seem to be 54 different sources in addition to Stiel, mostly European publicists of the 19th Century, who were supposed to support in one way or another various parts of the proposed definition. There is no apparent attempt to evaluate those writings by jurisprudential view or any other clue as to their relative persuasiveness; there is no chronological consistency or indication that perhaps the rules found persuasive in Italy or other States deriving their experience from Roman or Mediterranean interactions were rejected by worldstage actors, like England in the 17th Century and later, because of possible differences in the political structure of the overall society whose trade was to be protected from interference, or the selfimage of the state accepting or denying the role of world policeman against "piracy." Thus, the Harvard draft must be evaluated on its own merits as a legislative proposal, and cannot be supported as a reflection of a
Piracy scholarly analysis of precedent and theory. Indeed, the Researchers themselves seem to throw up their hands in dismay with regard to the definition of "piracy":
An investigation finds that instead of a single relatively simple problem, there are a series of difficult problems which have occasioned a great diversity of professional opinion. In studying the content of the [definition] article, it is useful to bear in mind the chaos of expert opinion as to what the law of nations [sic] includes, or should include, in piracy. There is no authoritative definition. Of the many definitions which have been proposed, most are inaccurate, both as to what they literally include and as to what they omit. Some are impromptu, rough descriptions of a 19 typical piracy.
In these circumstances, the legal analysis implicit in the Harvard draft is of minimal interest. As an exercise in proposing a legal formulation taking due account of the confusions of the period regarding "piracy" and the persistence of the concept as a factor in justifying some legal results, the Harvard draft has had a major impact on the development of legal thought. For present purposes, only the definitional article and the articles dealing with jurisdiction seem important. They say:
Article 3 Piracy is any of the following acts, committed in a place not within the territorial jurisdiction of any state: 1. Any act of or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends without a bona fide purpose of asserting a claim of right, provided that the act is connected with an attack on or from the sea or in or from the air. If the act is connected with an attack which starts from on board ship, either that ship or another ship which is involved must be a pirate ship or a ship without national character. 2. Any act of voluntary participation in the operation of a ship with knowledge of facts which make it a pirate ship. 3. An act of instigation or of intentional facilitation of an act described in paragraph 1 or paragraph 2 of this article.
19Comments, supra n. 12, 769.

Article 4 1. A ship is a pirate ship when it is devoted by the persons in dominant control to the purpose of committing an act described in the first sentence of paragraph 1 of Article 3, or to the purpose of committing any similar act within the territory of a state by descent from the high sea, provided in either case that the purposes of the persons in dominant control are not definitely limited to committing such acts against ships or territory subject to the jurisdiction of the state to which the ship belongs ... Article 6 In a place not within the territorial jurisdiction of another state, a state may seize a pirate ship or a ship taken by piracy and possessed by pirates, and things or persons on board. Article 7 1. In a place within the territorial jurisdiction of another state, a state may not pursue or seize a pirate ship or a ship taken by piracy and possessed by pirates; except that if pursuit of such a ship is commenced by a state within its own territorial jurisdiction or in a place not within the territorial jurisdiction of any state, the pursuit may be continued into or over the territorial sea of another state and seizure be made there, unless prohibited by the other state ... Article 9 If a seizure because of piracy is made by a state in violation of the jurisdiction of another state, the state making the seizure shall, upon the demand of the other state, surrender or release the ship, things and persons seized, and shall make appropriate reparation ... Article 13 1. A state, in accordance with its law, may dispose of ships and other property seized because of piracy. 2. The law of the state must conform to the following principles: ... (b) Claimants of any interest in the property are entitled to a reasonable opportunity to prove their claims... Article 14 I. A state which has lawful custody of a person suspected of piracy may prosecute and punish that person. 2. Subject to the provisions of this convention, the law of the state which exercises such jurisdiction defines the crime, governs the procedure and prescribes the penalty ...
Piracy 3. A state may intercede diplomatically to assure [fair and humane treatment] to one of its nationals who is accused in another state. Weaknesses in the draft are immediately apparent. As to the substance of the offense, why are "rape," "wound," "enslave," and "imprison" there? There seem to be no cases supporting any such inclusions, however horrible those acts may be. Participation in the slave trade had been expressly ruled out of European (including British) definitions when the trade was a serious matter in international commerce. 20 And if "rape," "wound" and "imprison" should be included merely because they are serious and violent offenses, why not "torture" or even generally "assault"? Why is there a distinction drawn between acts "committed in a place not within the territorial jurisdiction of any state" for the purpose of defining the offense and an act otherwise within the definition (indeed, more broadly stated in art. 4 also to include "any similar act") "within the territory of a state by descent from the high sea" for the purpose of defining a "pirate ship"? The definition of what is "piracy" in art. 3 includes an implied definition of who is a "pirate" (whoever commits an act of defined "piracy" as well as any of the fringe connections specified in paragraphs 2 and 3 of that article). Art. 4 defines a "pirate ship" more broadly. It would seem that there could conceivably be a "pirate ship" with no "pirates" on board and that had never been involved in the commission of an act of "piracy" if all its assaults were raids ashore. Presumably to make sense of this, it was to establish a category for ships not wholly lacking nationality from which an act of "piracy" within the definition of art. 3 could be committed. But why, if the attacking vessel had national character, should the law of "piracy" come into play at all? At least, it is not clear why a ship which had been involved in shore raids should be considered a base of piratical acts when it acted at sea, and the identical vessel that had not previously committed shore raids would not be considered a base for "piratical" See The Le Louis, 2 Dods. 210 (1817) ("No lawyer, I presume, could be found hardy enough to maintain that an indictment for piracy could be supported by
20
the mere evidence of trading in slaves. Be the malignity of the practice what it may ... "). Cf The Antelope, 23 U.S. (10 Wheat.) 66 (1825) (finding that the
slave trade is not piracy unless made so by treaties or statutes of the nation to
whom the party belongs).
Harvard Research on International Law acts on the high sea unless it had first lost its national character. And if any vessel had first lost its national character, it would seem to be within the definition of a base of "piratical" acts at sea whether or not it had first been involved in shore raids. Art. 4 seems senseless. As to jurisdiction, clearly territorial jurisdiction is dominant and pursuit into the territorial waters of any State can be forbidden under art. 7. The language shifts the burden to the territorial sovereign to prohibit the chase, rather than limiting the authority of the policing state to pursuit of a "pirate," but that seems to be as far as the Harvard Researchers were willing to go to meet the British position in principle. 21 Art. 9 seems to take even that concession back by providing, not only for a turning over to the territorial sovereign of the persons and property seized, but even the paying of reparations. Finally, as to "universal" jurisdiction, art. 13 refers back to the lawfulness of the seizure to determine if the seizing state can apply its own law to property seized. If the seizure was "lawful," then the seizing state can apply its own law, apparently even if there is no identifiable national interest in the incident beyond the fact of the seizure by its officials. Art. 6 appears to make lawful (although the word is not used) the seizure of "a pirate ship" or a ship "taken and possessed by pirates," and the property connected with it; but the same seizure of the same ship and property would appear to be unlawful if the ship had been used for depredations only "against ships or territory subject to the jurisdiction of the state to which the ship belongs. 22 In that latter case, the ship would not be classifiable as a "pirate ship," and whether the ship's company were "pirates" could not be determined until after the seizure; the seizure itself could not be regarded as "lawful" when done. And if the ship had not in the first instance been "taken by piracy," but had been lawfully acquired, or even taken by robbery under the law of some territorial State while not on the high sea and not by descent from the high sea, then it is not clear that any taking by a second country's officials would be "lawful" in the sense of art. 6. And if art. 6 not did make the seizure "lawful," then art. 13 would apparently not apply.
21
It might be pointed out that in the Third United Nations Law of the Sea
Conference, the British argued for a definition regarding jurisdiction over "piracy" that Peru argued against. See Rubin, supra n. 18, 391.
22
Draft Convention art. 4.
Piracy This construction opens up complications of a magnitude that cannot repay further analysis in this place since the Convention has never been adopted. But it is clear that the provisions as drafted do not represent a simple assertion of universal jurisdiction over ships and property involved in "piracy" or of universal jurisdiction with a simple exception. This gingerly handling of ships and property involved in alleged "piracy" is particularly interesting as showing a complete denial of the concepts of a universal international law (or law of nations) despite the use of the phrase "law of nations" by Blackstone and the framers of the American Constitution; concepts which included all maritime law with the "law of nations" and denied the legal significance of the place or sovereign authority of the tribunal erected to apply that supposedly universal law. The implication is not only that there is a cloud on the notion of universal jurisdiction over the goods involved in suspected "piracy" cases, but that the same rules of "standing" applied to determine which sovereign's courts should even hear the case; that standing ratione materiae and standing rationepersonaemust both be present in any "piracy" adjudication. Art. 14 seems to attempt to change that situation with regard to criminal trials, but again the universality of the jurisdiction is made to rest on the "lawfulness" (without defining what "law" applies) of the "custody;" and that lawfulness seems to depend on the interpretation of art. 6. In the Researchers' commentary to art. 6, no clue is given as to the complications involved; the Researchers seem to have thought that art. 6 merely codified an ancient "right of any state to capture on the high sea a foreign ship which has committed piracy or is the booty of pirates. 23 But there is no citation to any case or writer to support this grand assertion, and it seems wrong both historically and legally to the degree that it ignores the general international law of "standing." It seems to reflect the misconceptions of the time growing out of British assertions of a world-wide policing jurisdiction taken as a matter of policy and applies to foreign military vessels of nonEuropean subordination in the absence of animum furandi,and not applied by any State to "pirates" in the context of the Harvard Research, i.e., persons acting animo furandi within art. 3 as "criminals" under the laws of all states.
23 Comments, supra n. 12, 832.
Harvard Research on International Law There are many other peculiarities and questions raised by the Harvard Research draft Convention on Piracy, but since it was presented de legeferenda, and was not in fact adopted as such, it seems unnecessary to analyze it further in this place. In 193 1, while the Harvard Research was still underway, there was an incident in the Far East that resulted in jurisdiction being exercised over accused "pirates" in the absence of a link to some traditional basis for jurisdiction to prescribe. The incident occurred between Chinese vessels on the high seas and the capture of the accused "pirates" was effected by a British naval vessel, H.M.S. Somme, apparently (the report is not entirely clear) also on the high sea (as defined by the British). The accused were taken in to the British tribunal in Hong Kong and there convicted of "piracy" by a British criminal court. The question was referred all the way to the highest British tribunal with jurisdiction over colonial courts, the Judicial Committee of the Privy Council. The opinion there was unanimous among the five British judges, and delivered by Viscount Sankey, the Lord Chancellor. It does not mention any jurisdictional doubts.2 4 As to the point of substance, the opinion seems to treat British precedents and writings as if evidentiary of the evolving public international law regarding "piracy" and not merely evidence of an evolving British municipal law. The Huascar correspondence is referred to with a single sentence reciting the facts, followed by another single sentence saying merely: "The British Admiral justly considered that Huascar was a pirate and attacked her., 2 5 Dr. Lushington's opinion in both the Serhassan (Pirates) and the Magellan Pirates cases, and the American case, the Ambrose Light, are cited for the proposition that an actual robbery is not required for the crime of "piracy" to be completed. There is no notice of the fact that in all three cases there was no animus furandi at all, and that this lack might indicate that something other than the English crime of "piracy" might have been involved; the assumption is unstated that the legal word "piracy" covers both the acts descended from the English notion of robbery within the jurisdiction to prescribe, enforce and adjudicate of English Admir24
See In re Piracyjure gentium, [ 1934] A. C. 5 86.

sole citation to the case is to ParliamentaryPaper, Peru No. 1 1877,
25 The
presumably ParliamentaryPapers, 1877, LXXXVIII, 613 (Peru No. 1).
Piracy alty tribunals and acts of interference with ocean shipping, whatever the motive, and some assumption of British legal rights to police the seas. The confusion of concepts seems to have been complete. It is noteworthy that the case is a British case, and adopts the British view of natural law and British jurisdiction as an incident of an assumed universal jurisdiction. Although both the Harvard Research draft Convention and the League of Nations draft are cited with approval, there is no analysis of either except on the most superficial level. Other European publicists are cited; it appears that all the citations to sources other than the usual English sources were taken from the Harvard Research, at least all those cited seem on cursory inspection to appear also in the Harvard Research and the comprehensiveness of the Harvard Research is praised by Viscount Sankey. The Privy Council's conclusion was: A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time in consonance with situations either not thought of or not in existence when the older
jurisconsults were expressing their opinions ... [Their Lordships] having
examined all the previous cases, all the various statutes and all the
opinions of the various jurisconsults cited to them, they have come to the
conclusion that the better view and the proper answer to give to the question addressed to them is ... that actual robbery is not an essential element 26
in the crime of piracy jure gentium.
One other case was rescued from oblivion in 1932 and should be mentioned as evidentiary of the tendency of Anglo-Americans at the time to assert universal jurisdiction even where unnecessary to support the particular adjudication, and to cover cases with verbiage of a generality unnecessary and inappropriate by current standards to criminal proceedings. In 1922, an American court in the Philippines affirmed a conviction for "piracy" against "certain Moros from the Philippines" who boarded a Dutch boat in the territorial waters of an island in the Dutch East Indies, raped the women and sank the boat with the men on board (who escaped to shore). An appeal on the basis of lack of jurisdiction was disal16
Supra n. 24, 600.
Harvard Research on International Law lowed and the prison term was changed to a death penalty for the one of the two defendants (Lol-Lo) who had committed the rape.2 7 As reported, the decision says: "Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state," because "[t]he jurisdiction of piracy, unlike all other crimes has no territorial limits." Since the actual conviction of Lol-Lo was for rape, and it was for the rape, not for "piracy," that he was sentenced to death, this is very difficult to understand. Why was a rape within the territorial jurisdiction of the Dutch authorities within the jurisdiction of the American authorities also? It is especially difficult to understand when the definition given by the tribunal of the "crime of piracy" was: "Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit of universal hostility., 28 Even if "rape" fits the definition of "forcible depredation" (which seems doubtful, not only as a matter of definition, but because the sentence for "piracy" was life imprisonment and the sentence for rape was death; it is hard to see a crime with a greater penalty as a lesser included offense of a crime with a lighter penalty), it is incomprehensible that "on the high seas" means also "within the territorial waters of a foreign state." In fact, if the Spanish-rooted law of the Philippines, which is reported to have been the law applied, could have been construed to apply to Philippine defendants acting abroad, and jurisdiction could have been based on the personal power of a sovereign to prescribe rules binding on his subjects wherever they are, the jurisdiction was easily supportable on the basis of the nationality of the actor(s), not universality. As reported, no mention is made of the established constitutional limits to American prescriptive jurisdiction as pronounced by the United States Supreme Court in 1820,29 or the long course of American practice that, by 1922 for a hundred years, had followed that result despite the constant reiteration of the theoretical possibility of universal jurisdiction which was never asserted to lie within the territorial jurisdiction of a foreign sovereign, but only on the high sea. It must be concluded that the case is a unique, or
27 28
People v. Lol-Lo and Saraw, 43 Philippines Islands 19, as reported in I A.D
164 165(1919 1922). United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820). For a fuller d.
background of the case, see Rubin, supra n. 17, 153 154. 29
Piracy nearly unique, example of a colonial court, this time an American one, making up a convenient law for itself, regardless of precedent, logic or the political need to accommodate to the legal powers of neighboring sovereigns. It is probably not accidental that the incident occurred and was decided on the far fringes of two empires where the legal and political problems would not likely be significant. Nonetheless, it is odd and significant for the trend of thinking in the United States that the "piracy" section in the major compilation of American (and some foreign) legally significant practice published in 1941,30 normally a source of balanced reportage and minimal comment. For example, a statement that U.S. v. Smith3 1 is the leading American case supporting the notion that there is such a thing as an international law of "piracy" and that it is properly incorporated into American law by mere reference in the Act of 1819 is immediately followed by a long excerpt from Lenoir,32 including the passage, "[it is doubtful whether the Court would hold this view today, nor is it considered a correct statement of the present international law on piracy," reasoning that Justice Livingston's dissent was more persuasive than the majority opinion and that in near universal practice "piracy" was not only punished, but, for sound jurisprudential reasons, defined only by municipal law. Lenoir quotes 33 the passages set out above from both in re Piracy jure gentium and People v. LotLo and Saraw without any counterbalancing comment.3 4 Universal jurisdiction seems to have been adopted as the official American position by 1941, and the contrary cases and logic forgotten. There is some evidence that this position maintains its influence among American officials.35
30 2 32
31 18
Hackworth, Digest of InternationalLaw (1941), 681-695, 203. U.S. (5 Wheat.) 153 (1820). Lenoir, Piracy Cases in the Supreme Court, 25 J. Crim. L. & Criminology
532 (1934-1935). 33 Ibid., 552-553. 34 Hackworth, supra n. 30, 686 687. 35 See Cdr. M.E. Bowman, review of Rubin, The Law of Piracy, 43(3) Naval War College Review (1988),but Cdr. Bowman overlooks a great deal
both in that book and outside it.
Harvard Research on International Law As part of a more or less complete review of the law of the sea, with an eye to eventual codification, the United Nations General Assembly asked the International Law Commission to prepare a text that could form the basis for international agreement on the law of the sea.3 6 The text, originally prepared by J.P.A. Franqois, the Commission's Special Reporter, titled Regime of the High Seas, was published on 1 March 195237 and contains six articles dealing directly with "piracy." Art. 23 is the definition. It is Franqois' French translation of article 3 of the Harvard Research draft Convention.3 8 The French text is not directly identified as a mere translation in the draft Convention, but in the discussion at the International Law Commission's 290th meeting on 12 May 1955, the English text is set out. 39 It is verbatim the text of the Harvard article quoted above, except for changing the word "a" to "the" in the phrase "for private ends with a [the] bona fide purpose of asserting a claim of right." Oddly, in the unannotated text of the Harvard Research draft Convention, reproduced above, the text of art. 3 differs from the annotated text set out here with a third variation on that sentence; the unannotated text has neither "a" nor "the" but says merely "private ends without bona fide purpose." The confusion seems inconsequential. The other five articles are French translations of arts. 4(1), 5, 6, 10 and 12 of the Harvard Research draft. 40 Thus, the current language of the "piracy" provisions of the 1958 Geneva Convention on the High Seas and the 1982 Montego Bay Convention on the Law of the Sea are identical in substance, and neither can be said to make sense.4 1 What seems to be involved in this confusion is not any issue of substance. It seems widely agreed that the taking of property without the blessing of a legal order creates legal consequences in the international legal order, perhaps a claim for damages. The issue is in the designation of an appropriate legal order to determine the legal results See Briggs, The InternationalLaw Commission (1965),298-301. 1I.L.C. Yb., 7. The Report is denominated UN Doc. A/CN.4/79 in the United Nations archives. 8
36
37 1954
3
bid., 15. '9 1955 II.L.C. Yb., 39, note 3.

40
The English version of M. Franqois's draft, identical to the corresponding
articles of the Harvard Research draft except for stylistic changes, is set out in
41 See Rubin, Is Piracy Illegal?, 70 Am. J. Int'l L. 92 (1976).
1955 IL.C. Yb. 31 at 51, note 1.
Piracy of the taking. All municipal legal orders authorize some takings, perhaps as "eminent domain," "recaption," "confiscation" or some other category established by the legal order to cover action by the State or even self-help by aggrieved individuals in some circumstances. The problem with "piracy" seems to be the imposition on foreign "takers" of notions of a municipal legal order that the foreigners deny has purview over the property in question. Calling the taking a violation of "the law of nations" or of "international law" assumes the universality of rules relating to "takings" that is not evident in either the cases or diplomatic correspondence. And yet, all agree that "pirates" go too far. Another complication is the frequent use of the word "pirates" to describe a particular regime's political enemies in order to deny them authority to establish a legal order, to legislate and enforce their (the "rebels") rules. Thus, "rebels" like the American John Paul Jones, have been labeled "pirates" by the authorities seeking to withhold from them the authority they seek, despite their having commissions from what ultimately became the government of a "state" in the international legal order.42 In sum, the legal conception of "piracy" has been so seriously abused over the centuries that it is doubtful that the word retains any useful content in law, whatever its value in morality or politics. None of which is to support takings of property without the backing of a legal order responsible for abuses of discretion by its subjects. To resolve these issues, it can be suggested that the word "piracy" should be abandoned in law; that the notion of "piracy" or other property takings be considered per se a violation of international law should also be abandoned. Instead, effort should be put to pressuring states and belligerents and others purporting to operate under a legal order, to provide rules for the preservation of "property rights" and "human rights" within that order (including a right to personal safety; to be free of murder, rape, assault), and to respond to complaints that persons subject to that legal order have violated its rules.
41 See Rubin, supra n. 18, 172, note 190.
Chapter 9
EXTRADITION
Geoff Gilbert Introduction
While the oldest extant international document, the Treaty of Peace concluded in 1280 BC by Rameses II of Egypt and the Hittite prince Hattushilish III,' dealt with extradition, the law as it is understood today dates only from the middle of the nineteenth century. As such, the Harvard Research on International Law of 1935 relating to extradition was dealing with a subject that was still in its formative stages. The very idea that there might be an all-embracing treaty was in itself radical given that the vast majority of international agreements on the subject at that time were bilateral. The links with the nineteenth century are seen clearly in the four pages of report and analysis devoted to the development of the railway, steamships and telegraphs and telephones, even down to being told that in 1814 "George Stephenson's first engine, the Blucher, drew a train of eight 2 loaded wagons, weighing 30 tons, at a speed of 4 miles per hour.", This level of detail with respect to non-legal factors suggests that what had been a matter of limited interest that applied to serious offenders who had threatened the state itself3 had become, with the arrival of mass public transportation, a much more pressing problem as the ordinary criminal could now easily flee to another state. The fact that one of the areas for the Harvard study was extradition law, a
'Shearer, Extradition in InternationalLaw (1971), at 5, citing Langdon and Gardner in 6 JEgyptianArch. 179 (1920). '29 Am J.Int'l L. (Supp.) 35 (1935). See also the HarvardResearch in International Law (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 8. In the footnotes on the same page, we are told that the journey from Paris to Geneva in 1883 took between 11 hours 30 minutes
and 17 hours 40 minutes, depending on circumstances.
3Cf O'Higgins, The History of Extradition in British Practice, 13 Ind. Yb. Int'l
Aff 78 (1964). Blakesley, The Practice of Extradition from Antiquity to Modem France and the United States: A Brief History, 4 B.C. Int'l & Comp. L.J. 39 (1981).
Harvard Research on International Law very particular part of international law, is indicative of the importance attached at the time and ever since to transnational crime. This chapter will consider the nature of the Harvard draft Convention on Extradition, its contemporary and current context, and its content. It will also consider those issues that were not addressed in 1935 that have become pressing matters for responding to international crime in the twenty-first century.4 The Draft Convention on Extradition Extradition is not an inherent obligation of states. It is only required where there is some form of agreement between the requesting state and the requested state. That agreement might be bilateral or multilateral. At the time of the draft Convention, most extradition agreements were bilateral. Possibly, the impetus from Harvard for a multilateral treaty derived from the League of Nations Committee of Experts for the Progressive Codification of International Law and its limited conception of what might be done in the field of international extradition law,5 or the various attempts within the Americas in the early twentieth century to agree multilateral agreements.
Bilateralsand multilateralscompared
Bilateral treaties make for a piecemeal approach to extradition practice, given that some differences will arise during each set of negotiations, but the agreement will be that best suited to the two parties' particular situation.6 Moreover, whether arrangements can be
4See generally, Gilbert, Responding to InternationalCrime, (2006). Some of the
subsequent text is taken from this work. Supra n. 2, 48-50.

5
6An
example of this diversity in practice can be seen with the issue of
retroactivity. The then Anglo-Spanish treaty of 1986 (U.KT.S. 40, 1985) applied retroactively, but only to people who entered the country after the treaty had come into force (Art.22.2), whereas the Anglo-Brazilian Extradition Treaty; UKTS. 58, 1997, expressly provided in Article 1.4 that it applied to crimes committed before the Order came into force. (4) Extradition shall be available in respect of an extradition offence as described in Article 2, whether such offence was committed before or after the entry into force of this Treaty.
Extradition updated in line with current practice is open to doubt unless the treaty so provides, although Kontou shows how customary international law may, in certain circumstances, provide rights for the fugitive not incorporated in the treaty.7 The idea of a general, universal extradition treaty has been proposed in the past, not least by the Harvard Research project, but has, as yet, only produced a United Nations' model treaty. The United Nations General Assembly produced a model treaty on extradition' which has formed the basis for interstate extradition agreements. 9 Furthermore, in an effort to ensure serious offenders do not escape justice, the United Nations sponsored anti-terrorist conventions have included clauses to permit them to be used as surrogate extradition treaties where no treaty exists between the requesting and requested states. 10 The reasons for trying to establish a universal extradition treaty are not hard to divine. As Stein has commented with respect to Europe, [the] advantages of a uniform system are beyond doubt, but on the other
hand the European Extradition Convention of 1957 reflects only the
minimum standard of joint convictions....

7
12
Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (1994), 72-74. 'UNGA Res.45/116, 14 December 1991, 30 Int. Leg. Mat. 1407 (1991); cf. Swart, Refusal of Extradition and the United Nations Model Treaty on Extradition, 23 Neth.Yb Int'l L 175 (1992). 9 Clark, The UN Crime Prevention and CriminalJustice Program:Formulation of Standards and Efforts at their Implementation (1994). 1See Re Lodhi [2001] E.W.H.C. Admin. 178, 13 March 2001, where the request relied on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1995 to provide extradition relations between the
United Kingdom and the UAE. See also, Council of Europe Agreement on Illicit Traffic by Sea, implementing article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1995, E.T.S. 156, which allows for surrender of individuals detained by the intervening State-See Articles 13-15 and the Explanatory Report at paragraphs 69 et seq., <http://conventions.coe.int/ Treaty/en/Reports/Html/156.htm>. I"E.T.S. 24. 12See The 1982 Review of Commonwealth Extradition Arrangements, 98 (emphasis added). The Review is available from the Commonwealth Secretariat; hereinafter Commonwealth Review. See now, the London Scheme for Extradi-
Harvard Research on International Law At a worldwide level, joint convictions are at a minimum. 3 The model United Nations treaty, therefore, may represent a halfway house, trying to promote extradition arrangements between States without attempting to create a universally binding treaty for the entire international community. At a regional level, though, multilateral arrangements have been promulgated. In the Americas, there have been several multilateral agreements relating to extradition, but the states parties to each have not been consistent. It is not so much a case of regional agreements, more a series of agreements between various states in the region. The 1981 Inter-American Convention on Extradition 14 is the current regional agreement, but it expressly declares in Article 33 that it shall not supersede earlier bilateral or multilateral treaties entered into by the state parties. As well as the plethora of conventions to which regard must be had, there is also regional customary law, 15 in part based on the pervasive and persistent themes 16 found in these agreements. The League of Arab States has also promulgated agreements, but again the parties to the two schemes are not uniform. The first dates from 195217 while the second was signed in Riyadh in 1983. The 1983 scheme includes states in the Middle East and from the Sahara and Sahel regions of Africa. It is Europe, though, that has seen most activity in the field of multilateral treaties. The starting point is the Council of Europe's European Extradition Convention of 1957.18 It is a highly successful regional convention, constituting the procedural framework for more extraditions than any other treaty. By 2006, forty-seven states had
tion within the Commonwealth, 2002 version, available at: http://www. thecommonwealth.org/. 3See, for example, the Report of the Committee of Experts for the Progressive
Codification of International Law, L.N.Doc.C.51 M.28.1926. V. 1420 Int. Leg. Mat. 723 (1981). See also Council of Europe R(82)950 instructing
the European Committee on Crime Problems to study whether Council of Europe member States could accede to the Inter-American Convention.
15The Asylum Case, I.C.J.
Rep. 166, 316 (1950). 16Nicaragua v English,I.C.J. B.F.S.P. 606. 88 (1986).28 August 1954. U.S.A., 159 Rep. 14, 87 In force 17 Available in
18E.T.S.
24. See also the two additional protocols E.T.S. 86 (1975) and E.T.S. 98
(1978).
Extradition ratified or acceded to it.1 9 Thus, multilateral extradition arrangements have certainly proliferated since the Harvard Research, but there is no truly international treaty as yet. Beyond the multilateral treaty Other European multilateral extradition arrangements, however, also bring to light the variety of mechanisms that facilitate extradition. The Harvard draft Convention was a true multilateral treaty akin to those seen in the Americas, amongst the League of Arab States and in the 1957 European Extradition Convention. Nevertheless, other non-treaty based mechanisms have been employed by states to permit extradition. In terms of its multilateral character, the European Arrest Warrant that applies within the European Union is one of the most interesting. The EAW 20 can be traced back to the Conclusions of the Tampere European Council of October 1999.21 Nevertheless, it was the terrorist attack on the United States in September 2001 that resulted in the European Commission's proposal being adopted by June 2002.22 As a consequence of the EAW being set out in a Framework Decision under Article 34 of the Treaty of European
1 9
Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herze-
govina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia,

Finland, France, Federal Republic of Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Serbia, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and the United Kingdom. Israel, Montenegro and South Africa acceded, although not members of the Council of Europe; Montenegro became a member of the Council of Europe on 11 May
2007. 2See generally, Alegre and Leaf, European Arrest Warrant: A Solution Ahead of its Time? (2003). 21
See <http://europa.eu.int/council/off/conclu/oct99/oct99_en.htm#milestones>,
para.35. 22
See O.J.L. 190, 18 July 2002, 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
Harvard Research on International Law Union, 23 it was binding on member States and did not need ratification like a treaty would have done. Fundamentally, extradition within the European Union now relies on the backing of a warrant and is akin to transfer within a single state. Simplified schemes for the extradition of transnational fugitive offenders between geographic neighbours are not uncommon, but one that is to be applied across the whole European Union is significant and represents a more co-operative approach to surrender than existed at the time of the Harvard Research. Finally, there is one scheme for extradition that suggests that a global agreement as proposed by the Harvard Research may not be impossible. Ever since 1843, there has been a separate system for extradition throughout what is now the (British) Commonwealth.2 4 In the days of the former British Empire, the scheme was established by statute passed at Westminster. Indeed, the Fugitive Offenders Act 1881 governed extradition in the Empire and then the Commonwealth until 1966.25 The Commonwealth adopted the Scheme Relating to the
23
See O.J.C. 324, 24 DEC 2002, p.5, Consolidated Version of the Treaty of European Union. Art.34.2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect .... 246 & 7 Vict. c.34, An Act for the Better Apprehension of Certain Offenders. 25 See, however, State of Madras v Menon, [1954] All Ind. R.517 (SC India), where it was held that after India became a Republic, the 1881 Act was no longer applicable. In Re Ashman, [1985] 2 N.Z.L.R. 244 (decided 31 May 1976), the Supreme Court of New Zealand held that the 1881 Act, with its references to "Her Majesty's dominions," could not apply to the independent New Zealand. On 15 July 1976, the New Zealand parliament passed the Fugitive Offenders Amendment Act 1976, reinstating in force the 1881 Act one has to
Extradition Rendition of Fugitive Offenders within the Commonwealth in 196626 which, although similar to a multilateral convention, did not have the status of a treaty. It provided guidelines for extradition to and from Commonwealth countries and dependencies, but it was only put into effect through domestic legislation. In 1982, the entire Scheme was reviewed leading to some amendments,2 7 and a completely revised version was agreed in 1990.28 The events of 11 September 2001, however, gave rise to a further revision and the latest version is the London Scheme for Extradition within the Commonwealth. 29 The Scheme has not been converted into a treaty and there is no requirement of reciprocity; 30 therefore, even if the requesting state has not brought legislation into force to implement the Scheme, the requested state should still operate its own Scheme-based statute when dealing with the request. 31 The most notable thing, however, about the Scheme is that it applies to fifty-three states across the entire world with many different forms of government.3 2 Admittedly, the legacy from the United Kingdom of the common law legal system has helped to provide some conformity in legal understandings between the
wonder at this example of expedience over reform ten years after the first Commonwealth Scheme. See now, New Zealand Extradition Act 1999, Part 3. 26
27LMM(83)33.
28
Cmnd. 3008.
See also LMM(86)64. LMM(90)32. 292002 version, available at <http://www.thecommonwealth.org/shared asp files/ uploadedfiles/56F55E5D-1882-4421-9CC1-71634DF17331 } London Scheme.pdf>. 3Clause I talks of returning fugitives to other parts of the Commonwealth without any reference to reciprocity. Clause 23(a) speaks of supplementary and alternative arrangements, 23(b) only of modifications, neither permits non-application. 3 Cf Nauru constitutionally requires reciprocity. 32Antigua and Barbuda, Australia, The Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei Darussalam, Cameroon, Canada, Cyprus, Dominica, Fiji Islands, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Swaziland, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom, United Republic of Tanzania, Vanuatu, and Zambia.
Harvard Research on International Law member states,33 but that could never have been the sole decisive factor that made a worldwide system of extradition possible. Extradition without any agreement between the requesting and requested states Part of the argument for an international multilateral treaty was that it would provide a fallback where no other extradition arrangement existed between the states. A different approach to that particular situation is seen in the use of ad hoc extradition arrangements. Despite the arguments of Grotius,1 4 extradition is an imperfect obligation and there is no general international duty to extradite or punish the fugitive. If there is no arrangement, then there is no duty to extradite and everything is dependent on the comity of nations.35 Nevertheless, as the Harvard researchers noted, there are strong arguments for providing for some means of rendition even in these circumstances. "It is as much to our advantage that such criminals should be punished, and that we should get rid of them, as it is to that foreign State that they should be brought within the reach of its law."36 Civil law states, such as France, statutorily provide for extradition when no treaty exists; the statutes are expressly stated to be
is interesting to note that Cyprus, a civil law system, is treated as a foreign state, not a member of the Commonwealth, by the United Kingdom and extradition is conducted under the European Extradition Convention 1957 and the EAW-Extradition Act 2003 (Amendment to Designations) Order 2004, SI 2004, No. 1898, s2. 34 De Jure Belli Ac Pacis, Bk II, c.21, paras.3 and 4. Cf Pufendorf, Elements, Bk
331t
35
III, c.3, paras.23 and 24. See the Asil Nadir Case, The Guardian pp.1 and 22, 6 May 1993. His presence
in the Turkish Republic of Northern Cyprus meant that he was unobtainable given that only Turkey had recognised the TRNC-The Guardian pp. 1 and 3, 3 September 2003. See also the fact that Pakistan would not extradite Agha Hasan
Abedi to Abu Dhabi because there was no treaty (The Guardian p.14, 15 July1994), nor to the United States because there were not, at that time, good
relations between the two states. 36
Royal Commission on Extradition 1878, C 2039, and Parry, British Digest of
InternationalLaw, vol.6, at pp. 805 86 (1965). See also, Canada's submission to the Human Rights Committee in Kindler v Canada, Communication
No.470/1991, 14 H.R.L.J.307 at para.8.2 (1993).
Extradition subsidiary to any treaty,37 such that the statute can only apply in the absence of a general international arrangement. Whilst Article I of the Law of 10 March 1927 provides that it applies to points not regulated by the treaties, such a provision cannot override the provisions of the Treaty ....3 Nonetheless, this combination of treaties and domestic legislation does not create a duty to extradite as Grotius envisaged, because it merely empowers France to act, it does not impose an obligation to act. Common law states tended to require some more formalised arrangement between the requesting and requested States.39 However, several states have now adopted legislation to permit ad hoc extradition when no arrangement already exists. 40 Usually in these circumstances, the requested state demands greater safeguards for the human rights of the fugitive.41 Having considered the issue of multilateral arrangements for extradition between states, as the Harvard Research proposed, and the alternative mechanism of ad hoc extradition where no formal arrangement exists, it is proper to consider the content of the draft Convention on Extradition even if it never resulted in a universal, multilateral extradition treaty.
37See
the French Law of 10 March 1927 and Blakesley, The Practice ofExtradi-
tion from Antiquity to Modern Franceand the United States: A Brief History, 4 B.C. Int'l & Comp. L. Rev.39 at 53 55. 38Croissant,74 Int'lL Rep. 505 at 509 (1978). 39 Valentine v United States, ex rel. Neidecker, 299 U.S. 5 at 9. See the problem for the Republic of Ireland in the return of the "Colombia Three" who escaped from Bogata after an appeal court reversed their acquittal for training FARC guerrillas: The Guardian p. 10, 6 August 2005; p.7, 9 August 2005; p.5, 19 August 2005: BBC News website 4128568.stm, 2005/08/07 02:55:01; 4164614.stm, 2005/08/19, 06:55:43. 40 E.g., Canada (see The Guardianvis a vis China, p.19, 29 November 2000), the United Kingdom and Australia. The United States seems more than willing to return persons to states with which it has no extradition relations. In many cases, this is irregular rendition (sometimes called Extraordinary Rendition where it concerns alleged terrorists). However, there are cases where the rendition seems to be formalised: see The Guardianp.16, 17 April 2004. 41See Re Bachnofer, 28 Int'l L Rep. 322 (S.Ct. Colombia, 1963).
Harvard Research on International Law The content of the Draft Convention and the developments in extradition law since 1935 The drafters of the Convention recognized there were several areas of extradition law where states did not agree. Divergent practice had developed. They set out four, three of which at least are still the cause for disagreement: "extradition of nationals, the primafacie case as a prerequisite to extradition, non-extradition for fiscal offenses, and non-imposition of the death penalty. 4 2 To that list ought to be added today the political offence exemption and the death penalty needs to be set in a broader human rights context. However, the draft Convention dealt with many other issues, as well, that are still pertinent to extradition law. Thus, it is necessary to review the Convention as a whole if the Harvard Research is to be properly assessed. In reviewing research from 1935, however, there has been a conscious attempt not to criticize it for minor issues that could never have been foreseen at the time.
Fiscal offenses
To start with the issue that is no longer so pressing, Fiscal Offenses were dealt with in Reservation Number Two in Schedule A to the draft Convention. It was presumed by the drafters that fiscal offenses, that is, "[offenses] in connection with the customs or revenue law of a state, and not involving the misuse of public funds," would be subject to extradition and the specific reservation was to allow states to ratify whose domestic law prohibited the extradition of those accused or convicted of fiscal crimes. Today, many states treat fiscal crimes as a form of theft or deception, even if the revenue authorities are the victims. 43 This change reflects a general policy of extraditing fiscal offenders. According to one noted civil law commentator, 44 "[m]ost of the older conventions excluded fiscal offences but this attitude is
42
Supra n. 2, 50.
v Chief Metropolitan StipendiaryMagistrate, ex p. Secretary of State for the Home Department, [1989] 1 All E.R. 151. The U.S. authorities are also willing to extradite fiscal offenders; see Prushinowskiv Samples, 734 F.2d 1016 (1984). 44 Dr Torsten Stein in The 1982 Commonwealth Review of Extradition Arrangements, at 3 1, available from the Commonwealth Secretariat.
4,R
Extradition
changing and there isnow a very strong and unambiguous tendency among European States to allow extradition for fiscal offences. 45 The Second Additional Protocol to the European Convention on Extradition, 46 many national extradition statutes, 47 the Inter-American Convention 48 and the 1996 Convention relating to the Extradition between the Member States of the European Union 49 all make provision for the extradition of fiscal offenders. The revised 2002 Commonwealth Scheme also allows for the extradition of fiscal offenders: Extradition Offences and the Dual Criminality Rule 2(4) An offence described in paragraph (2) is an extradition offence notwithstanding that the offence: (a) is of a purely fiscal character; or (b) was committed outside the territory of the requesting country where extradition for such offences is permitted under the law of the requested country." The problem is still raised, though, in relation to specifically fiscal cases that are not also violations of the general criminal law. In such
45
See the Irish case of Byrne v Conroy, unreported, High Court, 1995
No.351Sp., where the abuse of the EC Common Agricultural Policy by farmers in Northern Ireland who then received unwarranted Monetary Compensation Amounts was held not to be a revenue offence. The judgment consists principally of a definition of 'revenue offence' under Irish and EC law. 46 E.T.S. 98, 1978. 47 Article 3.3, Swiss Federal Act on International Mutual Assistance in Criminal Matters, 20 March 1981, 20 Int. Leg. Mat. 1339 (1981), as amended 4 October 1996 (supplied by the Federal Office for Police Matters, Bern); see also the Decree on International Mutual Assistance in Criminal Matters, 24 February 1982 as amended 9 December 1996 (supplied by the Federal Office for Police Matters, Bern). The United Kingdom Extradition Act 2003, s64(8). 48 See Shearer, supra n. 1, 61-63. 49 Article 6, The Convention Relating to Extradition between the Member States of the European Union, 1996 O.J.C. 313 (Explanatory Report, 1997 O.J.C. 191, 19 20) provided for loose application of the principle of double criminality in relation to fiscal offences in Article 6. Now superseded by the EAW, See O.J.L 190 18 July 2.002, 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA).
Harvard Research on International Law cases, the double criminality rule, discussed below, would render detailed national offences, without an equivalent provision in the requested state's law, non-extraditable. Since fiscal laws are generally very particular, the double criminality rule will limit extradition to fiscal offences that amount to the normal financial crimes. The conduct of the accused must fulfil the requirements of an offence contrary to the law of the requested State, and the likelihood of this will decrease the more specific the offence is to the fiscal laws of the requesting State. Nevertheless, with respect to Category 1 States, the United Kingdom has removed this limitation in its Extradition Act 2003: 64(8) For the purposes of subsections (3)(b), (4)(c) and (5)(b) (a) if the conduct relates to a tax or duty, it is immaterial that the law of the relevant part of the United Kingdom does not impose the same kind of tax or duty or does not contain rules of the same kind as those of the law of the category 1 territory; (b) if the conduct relates to customs or exchange, it is immaterial that the law of the relevant part of the United Kingdom does not contain rules of the same kind as those of the law of the category 1 territory. Therefore, while the current increasing willingness to extradite even when the revenue authorities are involved ought to continue, unless States relax the double criminality rule in line with United Kingdom's 2003 Act, complete extraditability of tax offenders will not be possible, except with States which have particularly close economic links. Yet for many developing States, fugitives who have broken fiscal laws may well have substantially damaged the national economy. "In Ghana's economic situation, in common with that of some others, it was imperative that the country be able to extradite those who had offended in such a serious area of activity.,, 50 Fiscal offences that on their facts could be common crimes ought always to
50
Commonwealth Review 1982, per The Hon. GEK Aikins at.29. Supported by several other states, such as the Seychelles and Lesotho. See also, NS Pholo, at p.31.
The Meeting should take account of the considerable damage which these types of crime could inflict on developing countries with shaky economies.
Extradition
be extraditable; in other cases, there ought to be a generous interpretation of the double criminality rule.
Double criminality and jurisdiction

Articles 2 and 3 of the draft Convention deal with the issues of double criminality and jurisdiction. In terms of the former, the Harvard Researchers were exceptionally progressive while with respect to the latter they betrayed their common law heritage. Double criminality, while not an essential requirement of extradition law, is found in nearly every international arrangement.5 ' There are two ways to implement it: one focuses on comparing the relevant criminal laws in the requesting and requested states, 5 2 while the other concentrates
51
The 1985 Australian case of Riley v The Commonwealth of Australia, 159 C.L.R. I at 11 12, held that positive legislation or treaty provisions could expressly exclude the requirement; it was no more than a guide to interpretation to municipal law. It would seem that its omission will be rectified, but that it can be ousted by specific language. Within the twenty-five member states of the European Union, subject to implementation, the double criminality requirement has no part to play in relation to 32 crimes with respect to a request based on the European Arrest Warrant (O.J.L. 190 18 July 2002, 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA)). Those crimes include terrorism, computerrelated crime, racism and xenophobia, and sabotage, all of which lack precision, yet under Article 2.2 of the EAW, if the defined offence carries a penalty of three years detention in the requesting State, there is no need for the facts to make out a crime in the requested State. 52 See the Irish case of The State (Furlong) v Kelly, which provides a clear explanation of this stricter test (per O'Ddlaigh CJ [ 1971 ] LR. 132 at 141). [The] position may be illustrated algebraically as follows. If the [requesting state's] offence consists of, say, four essential elements a+b+c+d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a+b+c+d+e), then there is no corresponding Irish offence to satisfy the [double criminality] requirements ... for the simple reason that, ex hypothesi, conduct a+b+c+d falls short of being an offence under Irish law or, in plainer words, is not an offence.
Harvard Research on International Law on whether the alleged acts of the transnational fugitive offender would constitute a crime, mutatis mutandis, under the laws of the requested state. The former is based on a convergence of crimes while the latter on a convergence of criminalised behaviour and, as such, it is much easier to satisfy. Contrary to general practice at the time in common law states, the Harvard draft Convention adopted the criminalised behaviour approach in Article 2.2. On the other hand, Article 3 dealing with the place of commission of the extraditable acts reflects a traditional common law stance with respect to extraterritorial jurisdiction over offenses. Only if the requested state would recognize extraterritorial jurisdiction on similar facts will a state be obliged to surrender the fugitive. Given that common law states rely predominantly on territorial jurisdiction, it is likely that Article 3 would not always create an obligation when a non-common law state was asserting extraterritorial jurisdiction. Such an approach is not unexpected; it coincides with practice then and, for the most part, now. However, if the focus is on whether the acts are criminal rather than the convergence of criminal laws between the requesting and requested states, another approach to jurisdiction could be adopted, one that looks at whether the acts would be criminal if committed on the territory of the requested state. If double criminality is met if the acts are criminalised in both states, the fact that one state exerts extraterritorial jurisdiction should have no bearing on that decision.5 3 Such an approach has been adopted by the United Kingdom in 64 and 137 Extradition Act 2003. Nevertheless, it is worth noting that Article 3(2) of the Harvard draft Convention only stated that the requested state may decline to extradite a person claimed where it did not have matching extraterritorial reach to its criminal laws as the requesting state. This discretion, at least, is progressive.
The primafacie requirement

The clash of legal families is evident in the way the draft Convention deals with the evidential requirements for surrender. If proof were needed that the researchers favoured transfer of the transnational fugitive offender to face full trial over procedural rights s/he may
53C( R v Bartle and the Commissioner of Police of the Metropolis, ex p.
Pinochet [ 1999] 2 All E.R. 97.
Extradition have enjoyed in the requested state, then the limited remit of Reservation Numbers Five and Six indicates just how far the draft Convention had eschewed the common law stance in this area in Article 17(2)(a).5 4 It needs to be remembered that at the time in wholly domestic cases common law states would have required a long form committal before sending an accused to jury trial-the prosecution would have had to produce a primafacie case. Extradition hearings, mirroring domestic committal hearings, whether rightly or wrongly, required that a prima facie case be shown by the requesting state if the fugitive were to be surrendered. For other common law states making extradition request, this proved no problem because it corresponded to domestic practice, but civil law states, already under pressure because of time limits in extradition treaties, had to conform to a standard that was alien to their investigation-prosecution proce55 dure. In 1978, the then Anglo-Spanish extradition treaty lapsed because not a single Spanish request had been granted, mainly due to the prima facie case requirement.56 In its 1982 review of extradition law, the United Kingdom Home Office recognized that the prima facie requirement did limit extradition: Something like a third of applications made to the United Kingdom under our extradition treaties fail, and the most common cause of failure is undoubtedly the requesting State's inability to satisfy the primafacie case requirement.57 The civil law model is best seen in Article 24 European Extradition Convention 1957: Article 12-The request and supporting documents
54
See supra n. 2, 187 et seq. 5'69 B.F.S.P. 6, C.2182. Treaty terminated 13 October 1978: Spain (Extradition) (Revocation) Order, 1978, S.I. 1978, No. 1523. 56See The Guardian p.1, 9 November 1984. NB. The Argentine government failed in its request for a former Iranian diplomat for terrorist crimes because of insufficient evidence: The Guardianp. 12, 14 November 2003. 57 See The InterdepartmentalWorking Party'sReview of the Law and Practiceof
Extraditionin the United Kingdom, (Criminal Justice Department, Home Office,

1982): para. 4.6.
Harvard Research on International Law I The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.
2 The request shall be supported by: a. the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; b. a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and c. a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. There is no evidential requirement.5 8 Article 17(2)(a) of the Harvard draft Convention took as its preerred approach that of the civil law states. Nevertheless, recognizing the attachment of common law states to the primafacie requirement, it provided in Reservations Numbers Five and Six for states to include it within the extradition process under the Convention. Reservation Number Five is a simple reinstatement of the classic primafacie case requirement. Reservation Number Six, on the other hand, limits the requirement to requests involving nationals of the requested state. The reasoning of the researchers may be plain to see, but it is a flawed approach. If the request is for several persons, some of whom are nationals and others not, whether or not they come from a state that uses the prima facie case in its domestic criminal procedures, there would
58
While most signatories require no more than Art. 12 sets out, Ireland makes
more detailed demands than the basic minimum set out therein (see the German spokesman in The Irish Times p. 2, 22 June 1990); Israel does demand aprima facie case to be proven, and Germany and the Scandinavian countries reserve the right to require such proof in any particular case. A Russian request under the European Extradition Convention 1957 for Akhmed Zakaev, an alleged Chechen rebel leader, was rejected by the Danish Ministry of Justice for lack of evidence Press Release 3 December 2002; The Guardian p.22, 7 December 2002; p.2, 11 December 2002; p.12, 12 December 2002. See also Shearer, supra n. 1, 157 58. The Australian Extradition Act 1988 adopts the same stance.
Extradition be two different processes governing surrender-to the extent that nationals might not be extradited for lack of evidence linking them to the crime, while non-nationals would be surrendered. The requirement was always a reflection of the domestic criminal procedure, not some guarantee for citizens, an approach that gave rise to a different set of problems in extradition law, to be considered below. Arguments that the primafacie case requirement reflects a belief that systems other than the common law are inadequate can easily be dispelled because the United Kingdom always applied the same requirement towards member states of the Commonwealth. The real justification was that it prevented an individual from being surrendered when, at that time, there was no case against her/him. Equally, while the requirement did prevent requests succeeding, the reason was never fully explored. In the United Kingdom, at least, the main reason was that the extradition hearing required the requesting state to provide evidence that would be admissible in any English court. If the primafacie requirement is unknown in civil law systems, the hearsay rule is beyond comprehension-the investigative process relies on police officers interviewing witnesses and then reporting back to the prosecutor. Thus, whether or not it is proper to require the prima facie case, the justifications for its abolition are unfounded. However, increasingly, extradition law in the twenty-first century is abolishing the requirement to prove aprimafaciecase in line with the approach of the Harvard Research. Non-extraditionof nationals If the primafacie case is seen as predominantly a requirement of common law legal systems, the non-extradition of nationals is very much a characteristic of the civil law countries, often provided for in their constitutions.5 9 As Oppenheim's International Law 60 explained, [many] states, however, such as France and Germany, have adopted the principle of never extraditing one of their own subjects to a foreign state but themselves punishing their own subjects for grave crimes committed
59
See Article 9 of the Austrian Federal Constitution, as cited in Service of Summons in Criminal Proceedings (Austria) Case, 38 Int'l L Rep. 133 at 134,
Austrian Supreme Court.

6
Ed. Lauterpacht, (8th ed. 1955), 699.

abroad. Other states, e.g. Great Britain, have not adopted this principle, and, in the absence of treaty provisions to the contrary, make no distinc-
tion between their own subjects and other persons who are alleged to have committed extraditable crimes abroad. The effect of this restriction can be quite dramatic. In Bonnechaux 61 v Switzerland, the former European Commission on Human Rights upheld the 35-month pre-trial detention of a 74-year-old French national by the Swiss authorities, despite Article 5(3) of the ECHR, on the ground that if he were to be released there was a serious risk that he might flee to France from where extradition would be impossible and where there was no guarantee that he would be prosecuted for the offences committed in Switzerland. The rationale for this policy, as explained by civil law commenta6 tors, is based, first, on one's own national judges being also the natural judges of the offence; next, on a state's alleged duty to protect its own nationals; 63 and, finally, on the fear that a foreigner would be 64 prejudiced at a trial in the locus delicti. Nevertheless, Article 7 of the Harvard draft Convention provided that a requested state shall not decline extradition because such a person is one of its nationals, in part because the state where the crime took place will always have the greatest interest in prosecution.6 5 However, to encourage civil law states to ratify the draft Convention, Reservations Numbers Three and Four allowed for the non-extradition of nationals with or without a duty to prosecute in the requested state, respectively. Civil law states
61(1979)
3 E.H.R.R. 259 at 264, at paragraph 64. See also the decision of the
Swiss Ministry of Justice to surrender the Russian Yevgeny Adamov to the United States despite a competing request from Russia, because he could be extradited from the United States to Russia after serving any sentence whereas the reverse would not be true because of Russia's non-extradition of nationals BBC News website 4304462.stm, 2005/10/03 15:32:12. 62 E.g. Lammasch, Belatzis and Bedi, all cited by Shearer, Extraditionin InternationalLaw (1971), 121. 63 Rousseau's Social Contract(1762). 64 Shearer, supra n. 1, 18-20. This fear of prejudice and discrimination in the
requesting State is one that pre-dates the state and concomitant nationality-in Article II of the Treaty of Kutschuk-Ka'nardji, 1774, between the Russian and
Ottoman Empires, surrender of Christians by Russia and Moslems by the Sublime Porte was the sole exception to a duty to refuse asylum to those guilty
of capital crimes, disobedience or treason. 65

Supra n. 2, 123 et seq., especially 128.
Extradition often possess active personality principle jurisdiction that allows prosecution of nationals for crimes committed anywhere in the world.66 Despite the rationales propounded by the civil law commentators noted above, it had to be questioned whether such an absolute bar to extradition, even allowing for the possibility of trial in the national's own state,67 was still appropriate. Within the European Community with its open borders policy since 1992, two member States, Greece and the Federal Republic of Germany, refused under any circumstances to surrender their nationals.68 Moreover, the Nordic States refused extradition of not just their own nationals, but those of other Nordic States and domiciled aliens, too. 69 However, given that within
66
See Public Prosecutorv Antoni 32 Int'l L Rep. 140 (Swedish Supreme Court, 1960). 67 See Encyclopedie Dalloz: P~nal III (DR-INST), at paragraph 152 (1968). Cf
The decision in In re Korosi, [1925 26] Ann. Dig. 309 (Italian Court of Cassation, 1925). The London Scheme for Extradition within the Commonwealth 2002, provides that "each country which reserves the right to refuse to extradite nationals or permanent residents in accordance with clause 15 paragraph (3), will take, subject to its constitution, such legislative action and other steps as may be necessary or expedient in the circumstances to facilitate the trial or punishment of a person whose extradition is refused on that ground." (clause 16.1). Equally, Article 3.3 of the Anglo-Brazilian Extradition treaty of 1995, in force 1997, UK.T.S. 58, 1997, provided that if a request was turned down on grounds of nationality, then the requested state would submit the case for trial within its own jurisdiction. Where Israel refused the extradition to the United States of a dual Israeli-U.S. national, Israel prosecuted: The Guardian p.18, 26 February 1999; p.16, 23 March 1999. 6 1See paragraph 92, vol. 1, Home Affairs Select Committee, Seventh Report, PracticalPolice Co-Operation in the European Community, 20 July 1990, [ICP 363 (1989-90). As far as the Federal Republic of Germany is concerned, the prohibition against extraditing nationals is part of the Constitution; see, Art.16(II), Basic Law of the FRG, 1949, (155 B.F.S.P. 503). Germany even refused the extradition of a naturalised German who had been Dutch and who had served as an officer in the SS, in which position he had committed war crimes in The Netherlands: The Guardianp. 15, 10 April 2001. 69
0n accession to the European Convention on Extradition, 1957, the Nordic States (Denmark, Finland, Iceland, Norway and Sweden) not only extended the definition of nationals to include those ordinarily resident, but also the nationals and residents of the other Nordic States; see, Karle, Some Problems Concerning
Harvard Research on International Law Europe the United Kingdom had done away with the prima facie requirement, having ratified the European Convention on Extradition upon passage of the 1989 Extradition Act, 70 the civil law states of the European Union were effectively obliged to consider relaxing the absolute bar on the extradition of nationals. The European Union Convention Relating to Extradition between Member States 1996, 71 provides in Article 7.1 that extradition may not be refused on the ground that the "person claimed is a national of the requested Member State." However, paragraphs 2 and 3 permitted a five-year rolling reservation allowing States to continue to refuse extradition of their nationals. The Explanatory Report 72 made clear several matters: first, that the Nordic members of the European Union will no longer classify domiciled aliens as nationals for the purposes of intra-E.U. extradition; secondly, that the protection of nationals might be achieved by those states which do not ordinarily extradite nationals, by entering a reservation that any sentence imposed by the requesting State will be served in the requested State; next, that given that some states are constitutionally prohibited from extraditing their own nationals, that they review the scope of the restriction at least once every five years; and, finally, that reservations are not indefinite and can lapse. More generally, Shearer's prognostication back in 1971,73 that the repatriation of prisoners to serve their sentence in their own country would eventually convince civil law States to extradite their nationals, is at last coming true. The idea of repatriating prisoners is an old one and was included in the Franco-Basle treaty of 1781.7 It was also implemented in the Arab League Agreement of 1952. 75 It is based on the principle that a national's own state is likely to provide the best opportunities for rehabilitation. 76 Given that in the event of convicthe Application of the European Convention on Extradition, at 49 et seq. of
Legal Aspects ofExtradition (Council of Europe, 1970). 70 S.I.1990 No.1507. See now, Category 1 of the Extradition Act 2003. 711996 O.J.C. 313. 72 1997 O.J.C. 191, 20-21. 73 Shearer, supra n. 1, 125 etseq. 74
75
Martens, Recueil de Trait~s, (2nd ed.), vol iii, 376, Arts. I & 11. See 17, 159 B.F.S.P.606. 76See also, the case of the Libyan national convicted of the Lockerbie bombing:
The Guardianp.7, 15 July 2002.
Extradition tion, the extraditee would be returned to The Netherlands to serve his sentence, the Dutch government indicated its willingness to surrender its own nationals to the United Kingdom.7 7 As noted above, this was one possible approach under the European Union 1996 Convention Relating to Extradition between Member States. Such a policy, if adopted generally, would have resulted in a substantial improvement in the free-flow of fugitives to face trial and would still have provided the fugitive with the best opportunity for rehabilitation and maintenance of family contacts. 78 The civil law states' refusal to extradite their own nationals displays a distrust of other states' systems of criminal justice. The civil lawyers' criticism of the British demand that a prima facie case be made out before extradition ought to be granted, was that it displayed a similar distrust of other legal systems. However, the refusal to extradite nationals cannot even be justified on the ground that a person should not be removed from a state where he is free unless the requesting State has at minimum shown that he has a case to answer, an argument that can at least be proposed in favour of the primafacierequirement. Fortunately, as certain crimes increasingly threaten the international community, civil law states, with respect to their extradition relations with common law states, are generally beginning to relax their strict adherence to their previous practice of never extraditing their nationals. The most dramatic change is to be seen in the European Arrest Warrant. 79 As a Council Framework decision, unlike the 1996 EU treaty, it did not need to be ratified by member States of
77See
paragraph 92 and supplementary paragraph 93 (p.lv), Home Affairs Select
Committee Report, H.C.P. 363 (1989 90). Paragraph 15 of the 1990 Conference
on the Human Dimension of the OSCE in Copenhagen, (OSCE (CHD) Copenhagen Document, 11 H.R.L.J. 232 (1990), and Buergenthal, A new public orderfor Europe, 11 H.R.L.J. 217 (1990)), encourages the transfer of sentenced prisoners to their home states and, to that end, recommends states become parties to the 1983 Convention on the Transfer of Sentenced Prisoners, E.T.S. 112. See also, Orie, The Problems with the Effective Use of Prisoner Transfer
Treaties, in Atkins, The Alleged TransnationalCriminal(1995), 59 et seq. 78 See also, The Guardianp.14, 24 September 1998. 79 O.J.L.190 18 JUL 2002, p.1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the
European arrest warrant and the surrender procedures between Member States,
(2002/584/JHA).
Harvard Research on International Law the European Union. Refusal to extradite nationals is limited to the situation set out in Article 5(3): Article 5: The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: ... 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State."0 This change with respect to civil law jurisdictions, though, is still only gradual. The United States concluded an extradition treaty with Colombia on 14 September 1979 that did allow for the surrender of nationals. The problem had previously been that Colombian nationals who had imported drugs into the United States could not be extradited and had corrupted Colombian law enforcement officials to such an extent that trial in Colombia was almost impossible. However, the change in the 1979 treaty was not popular and, after several attempts, it was declared unconstitutional by the Colombian Supreme Court. 81 Nevertheless, Colombia extradited a drug baron in 1999, the first time in nine years. 82 Since 1999, there have been several Colombian nationals surrendered to the United States in relation to drugs crimes, including members of the FARC. 3 Greater success has been achieved in the United States treaty with Italy of the 13 October 1983.84 The Treaty, Article IV of which expressly states that extradition shall not
'NB. The position is still not 100% watertight. A German court has rejected a request for a German national under the EAW on constitutional grounds it appears that the German implementing legislation was not properly passed: The Guardianp.4, 19 July 2005. 8 lSee 27 Int. Leg. Mat. 492 (1988). Colombia passed a new law to allow for the extradition of its nationals in 1997, but it contained a loophole that would protect many of the leaders of the drug cartels and the United States government criticised the new law: see The Guardianp.13, 17 December 1997. 82 The Guardianp. 13, 22 November1999. 83 See BBC News website, 4292849.stm, 2005/02/23 22:09:10; 4342503.stm, 2005/03/12 00:10:16. 84 T.I.A.S. 10837.
Extradition be refused on grounds of nationality, is aimed to combat the coordinated organised crime in the two countries. In sum, although it is not universally accepted, the Harvard Research proposal that nationality should not be a bar to extradition is gaining ground. Capital Punishment and Human Rights The Harvard Research noted in its comment on Schedule A, Reservation Number One, that several existing extradition treaties provided that surrender of a transnational fugitive offender would only be permitted if the requesting state, at the instigation of the requested state, made a declaration that the death penalty would not be carried out. It went on to point out that the Bustamente Code declared "that in no case [would] the death penalty be imposed upon an extradited person. ' 85 Reservation Number One went further and provided that the requested state could insist on an assurance from the requesting state that "neither the death penalty, nor any cruel or unusual punishment, will be imposed upon [the extraditee] by the requesting state." While it was a liberal measure in 1935, modern extradition treaties almost without fail include a provision relating to the death penalty 86 and often give the state a power to refuse extradition if there is a fear of persecution.87 "Supra n. 2 in its comment on Reservation Number One. 86 Article 15.2 deals with the death penalty:
15.2 A request for extradition may be refused if the competent authority of the requested country determines (a) that upon extradition, the person is likely to suffer the death penalty for the extradition offence and that offence is not punishable by death in the requested country; and (b) it would be, having regard to all the circumstances of the case and to the likelihood that the person would be immune from punishment if not extradited, unjust or oppressive or too severe a punishment for extradition to proceed. (c) In determining under paragraph (a), whether a person would be likely to suffer the death penalty, the executive authority shall take into account any representations which the authorities of the requesting country may See the London Scheme for Extradition within the Commonwealth, 2002.

Article 13. The extradition of a person sought also will be precluded by law if(a) it appears to the competent authority that: (i) the request for extradition although purporting to be made for an extradition offence was in fact made for the purpose of prosecuting or punishing the person on account of race, religion, sex, nationality or political opinions, or (ii) that the person may be prejudiced at trial or punished, detained or restricted in personal liberty by reason of race, religion, sex, nationality or political opinions. The death penalty is not unlawful in international law, so multilateral extradition treaties8 8 will always have to include a provision providing a discretion where the requesting state retains it. However, since 1935, the protection of human rights has assumed a pre-eminent position in international law. The interplay of international human rights law and extradition law is not part of this analysis, but the inclusion of non-persecution clauses in extradition agreements, such as Article 13 of the Commonwealth Scheme, reflects that trend. Even where the political offence exemption is excluded, United Nations anti-terrorist treaties will still prohibit surrender if they face prejudice. 89
make with regard to the possibility that the death penalty, if imposed, will not be carried out. 87London Scheme for Extradition within the Commonwealth, Article 13.
88
At least outside Europe where the non-imposition of the death penalty may amount to regional customary international law. 89 1nternational Convention for the Suppression of Terrorist Bombing, UNGA Res. 164, U.N.GAOR, 52nd Sess., Supp. No. 49, at 389, U.N. Doc. A/52/49 (1998): Article 11. None of the offences set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.
Extradition
The Political Offence Exemption

If extradition started in 1280 BC as a process by which to surrender "great men," from the early nineteenth century onwards there had been near universal acceptance of the rule that extradition was prohibited for those who had committed offences of a political character. 90 Nevertheless, the Harvard draft Convention provided that states may decline to extradite political offenders in Article 5. The researchers had found some evidence in bilateral agreements that some states did leave it as a discretion and so felt that should be the primary approach within a multilateral treaty. Schedule B allowed states parties to make a declaration that political offenders would not be extradited, 91 the standard response of nearly every state in 1935. If the logic was not perverse, it was surely devoid of plain common sense. Since 1935, the approach found in the draft Convention towards political offences has become less out of the ordinary. The 1948 Genocide Convention rendered non-political in character the genocide crimes.92 The International Convention for the Suppression of the 93 Financing of Terrorism provides in Article 14 as follows: None of the offences set forth in article 2 shall be regarded for the purposes of extradition or mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence inspired
by political motives. Accordingly, a request for extradition or for mutual Article 12. Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request
for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person's position for any of these reasons.
90 91
Supra n. 2, 107 et seq. Schedule B also allowed for a declaration with respect to military offences, non-extradition of which was simply discretionary under Article 6. 92 Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Art. VII, 78 U.N. S. 277 (1951). 93Annex to UNGA Res. 54/109, 25 February 2000.

legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a
political offence or an offence inspired by political motives. More generally, the United Kingdom Extradition Act 2003 has abolished the political offence exemption. There is no political offence exemption for transnational fugitive offenders from Category 1 or Category 2 countries. However, 13 and 81 provide that extradition shall be refused if, inter alia, the transnational fugitive offender might be prejudiced at his trial "by reason of his race, religion, nationality, gender, sexual orientation or political opinions." The 2003 Act eschews the character of the crime and focuses on the treatment the fugitive might expect if surrendered. The political offence exemption had the benefit that if extradition was refused, it was because of the character of the crime, not because the requested State's competent authorities deemed the system of justice in the requesting State to be subject to prejudice. Rather than avoiding becoming involved in the internal affairs of the requesting State, 13 and 81 of the Extradition Act 2003 force the courts to concentrate on the treatment accorded to specific groups in that society.
13 Extraneous considerations A person's extradition to a category I territory is barred by reason of extraneous considerations if (and only if) it appears that (a) the Part I warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion,
nationality, gender, sexual orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
Settlement of Disputes
Article 28 of the Harvard draft Convention also deserves mention. It resonates of the era in which the Convention was drafted. The interWar period placed great emphasis on the peaceful settlement of disputes through judicial means. Most famously, the so-called Minorities Treaties of 1919 allowed for cases involving disputes between minority groups and the state to be resolved before the Permanent Court of International Justice.94 Article 28 of the draft Convention,
Extradition picking up on similar provisions in other treaties in the Harvard Research,9 5 provided for the settlement of disputes between parties to the Convention over its interpretation or application. There is a presumption in paragraph (a) that the parties would use diplomacy if a dispute arose and that where that failed some pre-existing system for the pacific settlement of disputes between them would be called into play. Paragraph (b) made the Permanent Court of International Justice the default tribunal where pre-existing mechanisms were not in place an agreement could be reached on an ad hoc procedure. Modern multilateral treaties and other agreements tend not to provide for dispute settlement, yet given the possibility that refusal of extradition would lead to interstate tension, as evidenced by the termination of the then Anglo-Spanish Extradition Treaty in 1978,96 some process for arbitration is not necessarily superfluous today. Conclusion That the Harvard Researchers decided to focus part of their study of international law on extradition is itself somewhat surprising. Extradition law was hardly at the forefront of international law at the time, nothing like as important as Treaties, the Responsibility of States for Injuries to Foreigners, Neutrality, or the Rights and Duties of States in Cases of Aggression. On the other hand, the draft Convention adopted some very radical stances for the time, especially in relation to the prima facie case and the non-extradition of nationals. There is still no universal multilateral extradition convention and little prospect of one emerging, but many of the themes taken up in the draft Convention are now commonplace in modern extradition treaties. Given the change in international human rights law following World War II and the rise of terrorism, it is surprising that so much of the work of 1935 is still contemporary. For its innovative thinking alone, the Harvard draft Convention on Extradition and the associated
94 Advisory Opinion of 6 April 1935 on Minority Schools in Albania, P.C.I.J., Series A/B, No.64, at 17. Greco-Bulgarian Communities Case, P.C.LJ., Series B, Nos. 17, 19, 21,22 & 33. 95 Supra n. 2, 223 et seq. 96 Treaty terminated 13 October 1978: Spain (Extradition) (Revocation) Order, 1978, S.I.1978, No.1523.
274
commentaries and background materials ought to be more widely known.
Chapter 10
JURISDICTION WITH RESPECT

TO CRIME: UNIVERSAL JURISDICTION
AND THE HARVARD RESEARCH

Michael P. Scharf
Introduction
The second part of the 1935 Harvard Research Project, which is devoted to the subject of "jurisdiction with respect to crime," contains a draft Convention with commentary that seeks to codify the international legal principles related to extraterritorial criminal jurisdiction.1 The provisions on objective territorial jurisdiction, 2 nationality-based jurisdiction, 3 passive personality jurisdiction, 4 and protective jurisdic29 Am. . Int'l L. (Supp.) 437 (1935) [hereinafter the Harvard Research]. See
also the HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 9. The term "extraterritorial jurisdiction" refers to the assertion of authority by a state to affect the legal interests of individuals located abroad. Extraterritorial jurisdiction may describe the authority to make law applicable to such persons (prescriptive jurisdiction); the authority to subject them to judicial processes (adjudicatory jurisdiction); or the authority to compel compliance and to redress noncompliance (enforcement jurisdiction). The Harvard Research Project focuses on prescriptive jurisdiction. 2 Objective territorial jurisdiction provides the state in whose territory the effects of an act are felt the authority to criminalize acts conmmitted abroad. Typical examples of such jurisdiction include narcotics cases, securities fraud, and antitrust violations which take place abroad but have an effect or are intended to have an effect in the territory of the prosecuting state. 3 Nationality-based jurisdiction provides the state of the perpetrator's nationality authority to criminalize acts committed abroad by the state's citizens or corporations. Although this type of jurisdiction is more widely employed by European continental countries than common law countries, the United States exercises nationality-based jurisdiction over such crimes as tax evasion, failure to register for the military draft, and failure to respond to a judicial subpoena. 4 Passive personality jurisdiction provides the state of the victim's nationality the authority to criminalize acts that injure the state's citizens abroad. This type of jurisdiction is still rarely used and its application often engenders protest. See Michael P. Scharf and Melanie K. Corrin, On DangerousGround: Passive Personality Jurisdiction and the Prohibition of Internet Gambling, 8 NEw ENGLAND J.
Harvard Research on International Law tion 5 have largely been assimilated into modem international law. The greatest source of controversy today concerns the concept of "universal jurisdiction," which provides every state with jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of where the offense occurred, the nationality of the perpetrator, or the nationality of the victim. 6 While other bases of jurisdiction require connections between the prosecuting state and the offense, the perpetrator, or the victim, the universality principle assumes that every state has a sufficient interest in exercising jurisdiction to combat egregious offenses that states universally have condemned. Contemporary scholars are locked in a debate about (1) what crimes are subject to universal jurisdiction and whether there should be limits to prevent conflicts between states over the exercise of such jurisdiction; (2) whether universal jurisdiction established by treaty can be applied to nationals of non-party states; and (3) whether there is a duty to prosecute universal jurisdiction crimes under customary international law. This chapter examines the legacy of the Harvard Research Project in the context of these issues. Crimes of Universal Jurisdiction The expansion of universaljurisdiction under customary internationallaw At the time of the Harvard Research Project, international law only recognized universal jurisdiction over the crime of piracy. 8 For the past 500 years, States have exercised jurisdiction over piratical acts on the high seas, even when neither the pirates nor their victims were nationals of the prosecuting state. 9 Piracy's fundamental nature and consequences
INT'L & COMP. L. 19 36 (2002). 5 Protective jurisdiction provides
a state authority to criminalize acts, such as terrorism, espionage, visa fraud, and arms export control violations that take place abroad but threaten the state's national security. 6 Kenneth C. Randall, Universal Jurisdiction under InternationalLaw, 66 TEX. L. REV. 785, 786 (1988). 7 Harvard Research, supra n. 1, 563-591. 8 Harvard Research, supra n. 1, 563 568.
9 Like
other international criminals, pirates can retain their nationality and still be
subject to universal jurisdiction. Kenneth C. Randall, Universal Jurisdiction under InternationalLaw, 66 TEX. L. REv. 785, 793 (1988).
Jurisdiction with Respect to Crime explained why it was subject to universal jurisdiction. Piracy often consists of heinous acts of violence or depredation, which are committed indiscriminately against the vessels and nationals of numerous states.' 0 Moreover, pirates can quickly flee across the seas, making pursuit by the authorities of particular victim States difficult. 1 In 1820, the U.S. Supreme Court upheld the exercise of universal jurisdiction by U.S. courts over piracy in United States v. Smith.1 2 The Court reasoned that "pirates being hostis humani generis [enemies of all humankind], are punishable in the tribunals of all nations. All nations are engaged in 13 a league against them for the mutual defence and safety of all.", The Harvard Research Project was one of the earliest authoritative texts to suggest that universal jurisdiction might be applied to other crimes that share the two characteristics of piracy. 14 The first involves the gravity of the crime. Crimes subject to the universality principle are
10 Hari M. Osofsky, Domesticating InternationalCriminalLaw: Bringing Human Rights Violators to Justice, 107 YALE L. J. 191 (1997); Kenneth C. Randall, Universal Jurisdiction under InternationalLaw, 66 TEX. L. REV. 785, 793 (1988); Daniel Bodansky, Human Rights and UniversalJurisdiction, in WORLD JUSTICE?
U.S. COURTS AND INTERNATIONAL HUMAN RIGHTS 9 (Mark Gibney, ed., 1991).
" Hari M. Osofsky, Domesticating InternationalCriminalLaw: Bringing Human Rights Violators to Justice, 107 YALE L. J. 191 (1997); Kenneth C. Randall, Universal Jurisdiction Under InternationalLaw, 66 TEX. L. REv. 785, 793 (1988); Daniel Bodansky, Human Rights and UniversalJurisdiction, in WORLD JUSTICE?
U.S. COURTS AND INTERNATIONAL HUMAN RIGHTS 9 (Mark Gibney,ed., 1991). 12 UnitedStates v. Smith, 18 U.S. (5 Wheat.) 153 (1820). The piracy Statute of 1819 provided "if any person or persons whatsoever, shall, on the high seas, connit the crime of piracy, as defined by the law of nations, and ... shall afterwards be brought into or found in the United States, every such offender ... shall, upon conviction ... be punished with death." The Supreme Court upheld this statute over the objection that it failed to define the crime with sufficient particularity. Id. at 162. 13United States v. Smith, 18 U.S. (5 Wheat.) 153, 156 (1820). Accord, U.S. v. Klintock, in which the Supreme Court stated: a pirate, being hostis humani generis, is of no nation or State. ... All the States of the world are engaged in a tacit alliance against them. An offense committed by them against any individual nation, is an offense against all. It is punishable in the Courts of all. So, in the present case, the offense conmmitted on board a piratical vessel, by a pirate, against a subject of Denmark, is an offense against the United States, which the Courts of this country are authorized and bound to punish. U.S. v. Klintock, 18 U.S. (5 Wheat.) 144, 147-48 (1820). 14 Harvard Research, supra n. 1, 571, 573-592.
Harvard Research on International Law so threatening to the international community or so heinous in scope and degree that they offend the interest of all humanity, and any state may, as humanity's agent, punish the offender. The second involves the locus delicti (place of the act). Crimes subject to the universality principle occur in territory over which no country has jurisdiction or in situations in which the territorial State and State of the accused's nationality are unlikely to exercise jurisdiction, because, for example, the perpetrators are State authorities or agents of the State. While acknowledging that in 1935 "there seems to be little or no basis for common agreement as to which offenses should fall within the class of delicta juris gentium which are to be prosecuted and punished on the same basis as piracy," the Harvard Research Project listed several potential candidates, including "slave trade," "crimes against humanity," "crimes against the public health of the world by spread of contagious disease," and certain war crimes. 15 Ten years after the publication of the Harvard Research Project, in the aftermath of the atrocities of the Second World War, the international community implemented the proposal to extend universal jurisdiction to war crimes and crimes against humanity. Trials exercising this jurisdiction took place in international tribunals at Nuremberg and Tokyo, as well as domestic courts. Some individuals faced trial in the states in which they had committed their crimes, but others were tried by other states in which they were later captured, surrendered, or 17 16 found-including such far off countries as Canada and Australia. Thus, on the basis of universal jurisdiction, Israel tried Adolph Eichmann in 1961,18 and John Demnjanjuk in 198819 for crimes committed before Israel even existed as a State.
15
16 R. v. Imre Finta [1994] 28 C.R. (4th) 265
Harvard Research, supra n. 1, 569 571.
(S.C.) (Canada) (reaffirming universal
jurisdiction over crimes against humanity committed against Jews in Hungary during Second World War, but finding that the available evidence did not meet the
requisite standard for such crimes).

17
Polyukhovich v. Commonwealth, 172 C.L.R. 501 (Austl. 1991) (Australia) (reaffirming universal jurisdiction over crimes against humanity and war crimes committed against Jews in the Ukraine during Second World War). 18 Israel kidnapped Adolph Eichmann in Argentina and prosecuted him in Jerusalem in 1961 for crimes against humanity and war crimes. As chief of the Gestapo's Jewish Section, Eichmann had primary responsibility over the persecution, deportation, and extermination of hundreds of thousands of Jews. Although the Security Council condemned Israel for violating Argentina's territorial sover-
Jurisdiction with Respect to Crime In extending universal jurisdiction to war crimes and crimes against humanity, an analogy was made between those offenses and piracy. Like piracy, the Nazi and Japanese offenses during the war involved violent and predatory action, and were typically committed in locations where they would not be prevented or punished through other bases of jurisdiction. z On December 11, 1946, the United Nations General
eignty in apprehending Eichmann, there was no averment that Israel lacked jurisdiction to try him. In upholding the District Court's conviction and death sentence, the Supreme Court of Israel stated: There is full justification for applying here the principle of universal jurisdiction since the international character of crimes against humanity ... dealt with in this case is no longer in doubt. ... The basic reason for which international law recognizes the right of each State to exercise such jurisdiction in piracy offenses ... applies with even greater force to the above-mentioned crimes. Not only do all the crimes attributed to the appellant bear an international character, but their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations. The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction and in the capacity of a guardian of international law and an agent for its enforcement, to try the appellant. That being the case, no importance attaches to the fact that the State of Israel did not exist when the offenses were committed. Attorney General of Israel v. Eichmann, 36 I.L.R. 277, 299, 304 (Isr. Sup. C1962). 19The United States granted Israel's request for the extradition of John Demjanjuk, a retired auto worker accused of being the infamous Treblinka Nazi death camp guard, "Ivan the Terrible." See Demjanjuk v. Petrovsky, 776 F. 2d 571 (6th Circ. 1985). The Court held that Israel had the right to try Demjanjuk under universal jurisdiction for crimes committed in Poland during 1942 or 1943, prior to the establishment of the Israeli State. Id. at 582 83. Demjanjuk was found guilty and sentenced to death for crimes against humanity by the Israeli court, but his conviction was subsequently overturned when new evidence discovered after the collapse of the Soviet Union was considered by the Israeli Supreme Court. Cr. A. 347/88, Demjanjuk v. State of Israel (Special Issue), 395-96; Mordechai Kremnitzer, The Demjanjuk Case, in WAR CRIMES IN INTERNATIONAL LAw 321, 323 (Yoram Dinstein and Mala Tabory, eds., 1996). 20 Kenneth C. Randall, UniversalJurisdictionunder InternationalLaw, 66 TEX. L. REV. 785, 793 (1988). As Col. Willard Cowles wrote on the eve of the establishment of the Nuremberg Tribunal: Basically, war crimes are very similar to piratical acts, except that they take place usually on land rather than at sea. In both situations there is,
Harvard Research on International Law Assembly unanimously affirmed the "principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal," 21 thereby "codifying the jurisdictional right of all States to prosecute the offenses addressed by the IMT [Nuremberg Tribunal], 22 namely war crimes, crimes against humanity, and the crime of aggression. 23 The General Assembly has subsequently confirmed that no statute of limitations or amnesty may be applied to bar prosecution of such crimes and that all states have a duty to cooperate in their prosecution.24
broadly speaking, a lack of any adequate judicial system operating on the spot where the crime takes place-in the case of piracy it is because the acts are on the high seas and in the case of war crimes because of a chaotic condition or irresponsible leadership in time of war. As regards both piratical acts and war crimes there is often no well-organized police or judicial system at the place where the acts are committed, and both the pirate and the war criminal take advantage of this fact, hoping thereby to conmmit their crimes with impunity. Willard B. Cowles, Universality of Jurisdictionover War Crimes, 33 CAL. L. REV. 177, 194 (1945). 21 G.A. Res. 95, U.N. Doc. A/64/Add. 1, at 188 (1946). 22 Kenneth C. Randall, Universal Jurisdictionunder InternationalLaw, 66 TEX. L. REV. 785, 834 (1988). 23 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and the Charter of the International Military Tribunal annexed thereto, 8 Aug. 1945, art. 6, 82 U.N.T.S. 279, reprinted in 2 VIRGINIA MORRIS AND
MICHAEL P. SCHARF, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
473
(1998). 24 See, e.g., Declaration on Territorial Asylum, G.A. Res. 2312, 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967) ("states shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a war crime or crime against humanity"); United Nations Resolution on War Criminals, G.A. Res. 2712, 25 U.N. GAOR Supp. (No. 28) at 78 79, U.N.
Doc. A/8028 (1970), reprinted in M.
CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 698 (1992) (adopted by a vote of 55
in favor to 4 against with 33 abstentions) (Condemns war crimes and crimes against humanity and "calls upon the States concerned to bring to trial persons guilty of such crimes"); G.A. Res. 2840, 26 U.N. GAOR Supp. (No. 29), at 88, U.N. Doc. A/8429 (1971) (adopted by a vote of 71 in favor to none against with 42 abstentions) (affirming that a State's refusal "to cooperate in the arrest, extradition, trial and punishment" of persons accused or convicted of war crimes or crimes against humanity is "contrary to the United Nations Charter and to generally recognized norms of international law"); United Nations Resolution on Principles of Interna-
Jurisdiction with Respect to Crime
Limits to the exercise of universaljurisdiction under customary internationallaw

Although the exercise of universal jurisdiction by domestic courts remains fairly rare, in recent years domestic courts of Denmark and Germany have relied on the universality principle in trying Croatian and Bosnian Serb nationals for war crimes and crimes against humanity committed in Bosnia in 1992,25 and courts in Belgium have cited the universality principle as a basis for issuing arrest warrants against persons involved in the atrocities in Rwanda in 1994.26 While these cases were not particularly controversial, in other recent cases assertions of universal jurisdiction engendered diplomatic tensions between states, such as in 2002 when Belgium indicted Israeli Prime Minister Ariel Sharon for crimes committed by forces under his command in Lebanon, or in 2006 when Germany indicted former U.S. Secretary of Defense Donald Rumsfeld for acts of torture committed by U.S. troops at Abu Ghraib and Guantanamo Bay detention facilities. 2 7
tional Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074, GAOR Supp. (No. 30) at 79, U.N. Doc. A/9030 (1973), reprintedin M. CHERIF BASSIOUNI, CRIMES AGAINST HuMANITY IN INTERNATIONAL CRIMINAL LAW 701 (1992) (adopted by a vote of 94 in favor to none against with 29 abstentions) (War crimes and crimes against humanity "shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trials and, if found guilty, to punishment"). 25 In the 1994 case of Director ofPublic Prosecutionsv. , the defendant was tried by a Denmark court for war crimes committed against Bosnians in the territory of the former Yugoslavia. See Mary Ellen O'Connell, New InternationalLegal Process, 83 AM. J. INT'L L. 334, 341 (1999). On April 30, 1999, the German Federal Supreme Court upheld the conviction of a Bosnian Serb convicted for conmmitting acts of genocide in Bosnia. See 5 INTERNATIONAL LAW UPDATE 52 (May 1999) (a press release on this case Number 39/1999-is available on the German Federal Supreme Court's website: <www.unikarlsruhe.de/-bgh>. 26 See Theodor Meron, InternationalCriminalizationofInternalAtrocities, 89 AM. J. INT'L L. 554, 576 (1995) (While several of the warrants involved the killing of Belgian peacekeepers, one of the warrants was issued against a Rwandan responsible for massacres of other Rwandans in Rwanda). 27 Stefaan Smis and Kim Van der Borght, ASIL Insight: Belgian Law Concerning the Punishment of Grave Breaches of InternationalHumanitarianLaw: A Contested Law with Uncontested Objectives (July 2003), available at <http://asil.org. insights>; Scott Lyons, ASIL Insight: German Criminal ComplaintAgainst Donald Rumsfeld and Others (December 14, 2006), available at <http://asil.org.insights>.
Harvard Research on International Law To avoid such interstate tension, courts and legislatures have begun to apply various limits to the exercise of universal jurisdiction. In the 2002 Belgian Arrest Warrant Case, for example, the International Court of Justice held that head of state immunity prevents the exercise of universal jurisdiction by a domestic court over current heads of state and other high ranking officials, even for crimes against humanity. 28 While this precedent may limit the use of universal jurisdiction over such persons while they remain in office, the Pinochet case decided by the British House of Lords suggests that former officials may be prosecuted for acts of torture and certain other international crimes committed while they were in power. 29 Echoing the approach advocated in 1935 by the Harvard Research Project, 30 the French courts refuse to exercise "universal jurisdiction in absentia"-that is, over individuals who are not present in French territory at the time an indictment is issued.31 Meanwhile the courts of Germany and the legislatures of Austria, Canada, and the United Kingdom, have limited the exercise of universal jurisdiction to cases involving non-citizens who have a residence in those states.3 2 One leading expert, Anne-Marie Slaughter, has referred to this as "universality plus," since it requires a connection with the prosecuting state, 33 though it does not amount to full nationality jurisdiction.
28
International Court of Justice, Case Concerning the Arrest Warrant of 11 April
2000 (Democratic Republic qf the Congo v. Belgium), judgment of 14 February 2002.
29 Regina v. Bow St. Metro. Stipendiary Magistrate,ex parte Pinochet Ugarte (No.
3), (2000) 1 A.C. 147, 148 49 (H.L. 1999) (U.K.). 30 Harvard Research, supra n. 1, 573, 582. 31 In Re Javor, Cass. Crim., March 26, 1996, Bull. Crim. 1996, No. 132, 379, summarized in Brigitte Stem, International Decisions: Universal Jurisdiction over Crimes againstHumanity underFrenchLaw," 93 AM. J. INT'L L. 525 (1996). 32 Public Prosecutor v. Jorgic, discussed in Sascha Rolf Luder and Gregor
Schotten, Correspondent's Reports: Germany, 2 Y. B.
INT'L HUMANITARIAN L. 366 (1999); War Crimes Amendment Act 1988, Section 11 (Australia); War Crimes Act of 1991, C. 13, Section 2 (England); Canadian Criminal Code, R.S.C., Ch. C-46, Sections 7 (3.71 3.73) (1985) (Canada). 33 Anne-Marie Slaghter, Defining the Limits: Universal Jurisdictioniand Na-
tional Courts in
STEPHEN MACEDO,
UNIVERSAL JURISDICTION:
NATIONAL
COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL
LAW 21-25 (2004) at 170.
Jurisdiction with Respect to Crime Finally, in the 2003 Judgment on the Peruvian Genocide Case, the Supreme Court of Spain held that there was an inherent limit on the principle, which it called "the necessity of jurisdictional intervention," according to which Spanish courts should only intervene if Peruvian courts fail to take effective steps to prosecute. Observing that Peru was in the process of initiating criminal investigations related to the crimes alleged by the petitioners in their claims, the Spanish Supreme Court held that "for the present time" there was no need for the Spanish courts to intervene on the basis of universal jurisdiction. 34 Analogous to the complementarity principle applicable to the International Criminal Court, 35 this "subsidiary principle" articulated by the Supreme Court of Spain would permit exercise of domestic universal jurisdiction only upon a finding that the territorial jurisdiction is unwilling or unable to prosecute. Universal Jurisdiction by Treaty The Harvard Research Project was the first authoritative text to suggest that universal jurisdiction could be created over additional "crimes which states have agreed by treaty to repress., 36 In addition to piracy, war crimes, crimes against humanity, and genocide, in recent years a growing number of other international offenses have been made subject to universal jurisdiction through the negotiation of multinational conventions under the auspices of the United Nations and other international bodies such as the International Civil Aviation Organization and the International Maritime Organization. Such treaties include (in chronological order): the 1949 Geneva Conventions, 37 the 1958 Law of
34 Tribunal Supremo (Supreme Court) of Spain: Judgment on the Peruvian 35Rome Statute for the International Criminal Court arts. 16, 53, July 17, 1998,
Genocide Case, Judgment No. 712/2003 (May 20, 2003).
2187 U.N.TS. 90 [hereinafter Rome Statute], available at <http://www.un.org/ law/icc/statute/englishrome-statute(e).pdf>. 36 Harvard Research, supra n. 1, 571. See also M. CHERIF BASSIOUNI & EDWARD
M. WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE TN INTERNATIONAL LAW (1995) (concluding that international law permits nations
to agree through treaties to exercise universal jurisdiction over offenses that might not otherwise permit such jurisdiction). 37 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 6 U.S.T 3114, TI.A.S. No. 3362, 75 U.N. 31 (Art. 49: duty to search for and prosecute; Art. 50: recognition TS.
Harvard Research on International Law the Sea Convention, 38 the 1970 Hijacking Convention, 39 the 1971 Aircraft Sabotage Convention, 40 the 1973 Internationally Protected Persons Convention, 4 1 the 1979 Hostage Taking Convention,42 the 1984 Torture Convention, 43 the 1988 Airport Security Protocol, 44 the 1988 Maritime
as a crime); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 6 U.S.T 3316, TI.A.S. No. 3364, 75 UN.TS. 85 (Art. 50: duty to search for and prosecute; Art. 51: recognition as a crime); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 U.S.T 3316, TLA.S. No. 3364, 75 UN.TS. 135 (Art. 129: duty to search for and prosecute; Art. 130: recognition as a crime); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T 3516, TI.A.S. No. 3365, 75 UNTS. 287 (Art. 146 (duty to search for and prosecute; Art. 147: recognition as a crime). 38 Geneva Convention of the High Seas, 29 April 1958, 13 U.S.T 2312, TiA.S. No. 5200, 450 UN. TS. 82 (Art. 5: definition of piracy; Art. 14: duty to co-operate in the repression of piracy; Art. 19: establishment of universal jurisdiction). 39 Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 22 U.S.T 1641, TLA.S. No. 7192, 860 UN.TS. 105 (art. I: recognition as crime, art. II: duty to punish; art. IV: duty to establish jurisdiction; art. V: duty to apprehend; art. VII: duty to prosecute or extradite; art. X duty to cooperate in prosecution). 40 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 24 U.S. T. 564, T.A.S. No. 7570, 974 UN.TS. 177 (art. 1: recognition as crime; art 3: duty to punish; art. 5: duty to establish jurisdiction; art. 6: duty to apprehend; arts. 7,8: duty to prosecute or extradite; art. 11: duty to cooperate in prosecution). 41 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, 14 December 1973, 28 U.S.T 1975, T.LA.S. 8532 (art. 2: recognition as crime); art. 3: duty to establish jurisdiction; art. 4: duty to prevent; arts. 6,7: duty to prosecute or extradite; art. 10: duty to provide judicial assistance). 42 International Convention Against the Taking of Hostages, 18 December 1979, U.N. G.A. Res. 34/145 (XXXIV), 34 U.N. GAOR Supp. (No. 46), at 245, U.N. Doc. A/34/146 (art. 1: recognition as crime; art. 2: duty to punish; art. 4: duty to prevent; art. 5: duty to establish jurisdiction; art. 6: duty to apprehend; arts. 7,8: duty to prosecute or extradite; art. 11: duty to provide judicial assistance). 43 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 December 1984, U.N. Doc. A!Res/39/46 (art. 1: recognition as international crime; art. 4: duty to criminalize; Art. 5: duty to establish jurisdiction; art. 7: duty to extradite; art. 9: duty to provide cooperation and judicial assistance). 44 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention of September 23, 1971, Feb. 24, 1988, S. Treaty Doc. No. 100-19 (1988).
Jurisdiction with Respect to Crime Terrorism Convention, 45 1994 Convention on the Safety of United Nations Peacekeepers, 46 and the 1998 International Convention for the Suppression of Terrorist Bombings. 47 It is noteworthy that none of these treaties purport to limit their application to offenses committed by the nationals of parties; nor do any of the domestic implementing statutes 48 expressly limit prosecution to the nationals of the treaty parties. Recent events involving the establishment of the International Criminal Court (ICC) have raised the question of whether the State parties to these conventions can use the treaties to prosecute the nationals of nonparty states who are found on their territory. The issue first came to light when then U.S. Ambassador-at-Large for War Crimes Issues, David Scheffer, testified before the U.S. Senate Foreign Relations Committee that the ICC Treaty "purports to establish an arrangement whereby U.S. armed forces operating overseas could be conceivably prosecuted by the
45 Convention and Protocol on the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, adopted by the International Maritime Organization, at Rome, 10 March 1988, I.M.O. Doc. SVA/CON/15 (art. 3: definition of offense; art. 5 duty to punish; art. 6: duty to establish jurisdiction; art. 10: duty to prosecute; art. 11: duty to extradite; art. 12: duty to render mutual legal assistance). 46 The Convention on the Safety of United nations and Associated Personnel, Dec. 9, 1994, 34 LL.M.482 (1995) (entered into force on January 15, 1999) (art. 9: recognition as crime and duty to punish; art. 10: duty to establish jurisdiction; art. 14: duty to prosecute or extradite); See also Evan T. Bloom, CurrentDevelopment: Protecting Peacekeepers: The Convention on the Safety of United Nations and AssociatedPersonnel,89 AM. J. INT'L L. 621 (1995); TJAGSA PracticeNote, 1999 ARMY LAw. 21, 22 (1999) ("This Convention implements international law by making it a universal jurisdiction crime to attack neutral persons deployed on behalf of the UN"). 47 International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249 (1998) (art. 2(1): recognition as crime; art. 4: duty to punish; art. 6: duty to establish jurisdiction; art. 8: duty to prosecute or extradite; art. 12: duty to prosecute in prosecution); see also Samuel M. Witten, Current Developments: The International Convention for the Suppression of Terrorist Bombings, 92 AM. J. INT'L L. 774 (1998). 48 Kenneth C. Randall, Universal Jurisdictionunder InternationalLaw, 66 TEX. L. REv. 785, 820 (1988). See, e.g., 18 U.S.C. 32 (1994) (destruction of aircraft); 18 U.S.C. 37 (1994) (violence at international airports); 18 U.S.C. 112, 878, 1116 (1994) (threats and violence against foreign officials); 18 U.S.C. 1203 (1994) (hostage taking); 18 U.S.C. 1653 (1994) (piracy); 18 U.S.C. 2280 81 (1994) (violence on or against ships and fixed platforms); 21 U.S.C. 960 (1994) (drug trafficking); 49 U.S.C. 46502 (1994) (hijacking), 18 U.S.C.A. 2340 (West Supp. 1997) (torture).
Harvard Research on International Law international court even if the United States has not agreed to be bound by the treaty.... This is contrary to the most fundamental principles of treaty law."4 9 Specifically, Ambassador Scheffer argued that ICC jurisdiction over the nationals of a non-party State would violate the Vienna Convention on the Law of Treaties, which provides: "A Treaty does not create either obligations or rights for a third state without its consent." 50 Soon thereafter, legislation opposing the ICC was introduced in the U.S. Senate and House of Representatives. The preamble to the legislation quoted Ambassador Scheffer's argument that a treaty cannot lawfully provide the basis of criminal jurisdiction over the nationals of non-party 51 states. Elsewhere, this author has provided a detailed critique of the validity of this argument as applied to the ICC.52 The ramifications of this illconceived legal argument go far beyond America's response to the creation of the ICC, however. It squarely presents the question of whether the United States or any other country can exercise universal or other types of extraterritorial jurisdiction granted by a multilateral treaty over the nationals of non-party states. In addressing this controversial question, this section assesses the two main arguments that have been made
49 Statement of David Scheffer, HearingBefore the Subcommittee on International
Operations of the Committee on Foreign Relations of the United States Senate, July 23, 1998, 105th Cong. 2nd. Sess. S. Hrg. 105-724, at 13. 50 David Scheffer, "International Criminal Court: The Challenge of Jurisdiction," address at the Annual Meeting of the American Society of International Law (March 26, 1999), at 3, citing Vienna Convention on the Law of Treaties, Art. 35, May 23, 1969, U.S. Doc. A/Conf. 39/27 at 289 (1969). 51 On June 29, 1999, Representative Bob Ney (R-Ohio) introduced a bill (H.R. 2381) entitled "Protection of United States Troops From Foreign Prosecution Act of 1999," which inter alia would prohibit economic assistance for countries that ratify the ICC Statute. Drawing upon Ambassador Scheffer's argument, the preamble of the bill, which sets forth its rationale, declares "the treaty known as the Rome Statute of the International Criminal Court ... claiming the unprecedented by power over ... citizens of nations that are not party to the treaty-based upon events taking place in the territory of a nation party to the treaty, is entirely unsupported in international law." H.R. 2381, 106 Cong., 1st Sess., June 29, 1999. Similar language is contained in S. 2726, 106th Cong. (2000), introduced by Senator Jesse Helms (R-NC) on June 14, 2000. 52 See THE ICC'S JURISDICTION OVER THE NATIONALS OF NON-PARTY STATES, IN
THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT: NATIONAL SECURITY AND INTERNATIONAL LAW (Sarah Sewall and Carl Kaysen, eds., 2000) at
213 237.
Jurisdiction with Respect to Crime against the validity of treaty-based extraterritorial jurisdiction over the nationals of non-party states. This is followed by an examination of state practice which supports the exercise of treaty-based jurisdiction over non-party nationals. The Lotus principle Whether a State's exercise of extraterritorial jurisdiction is legitimate is governed by the so called "Lotus principle," articulated by the Permanent International Court of Justice (PCIJ) in 1927. In one of the most frequently quoted passages of the PCIJ's jurisprudence, the World Court stated: "Restrictions upon the independence of States cannot ... be presumed" and that international law leaves to States "a wide measure of discretion which is only limited in certain cases by prohibitive '5 3 rules." The context in which this principle was articulated was a dispute between France and Turkey about whether Turkey had jurisdiction to try a French sailor for negligence on the high seas. A French vessel (The SS Lotus) had run into a Turkish vessel, causing the death of Turkish citizens. When the French vessel anchored at a Turkish port, Turkey took custody over and prosecuted the French watch officer for criminal manslaughter. France argued that the flag state alone had jurisdiction in such cases and that Turkey could not legitimately try a French citizen under international law since it could not "point to some title of jurisdiction recognized by international law.",5 4 The PCIJ rejected France's argument, ruling that the burden was on France to demonstrate that Turkey's exercise of jurisdiction violated some prohibitive rule of inter55 national law. With respect to the question of the application of treaty-based universal jurisdiction, application of the Lotus principle would mean that sovereign states are free to collectively establish an international jurisdictional regime applicable to the nationals of both State parties and non-party States unless it can be shown that this violates a prohibitive rule of international law. So long as States have a legitimate interest in establishing such an arrangement, the question is not whether intema-
53
54 Id. 55
S.S. Lotus (Francev. Turkey), 1927 P.C.J.(Ser. A), No. 10, at 18.
id.
Harvard Research on International Law tional law or precedent exists permitting it, but rather whether any international legal rule exists which would prohibit it. Despite the fact that the Lotus opinion began its jurisprudential life as a 6-6 decision of the World Court (with the tie broken by the President of the Court), the now-venerable Lotus principle continues to be cited with approval by the ICJ as well as the United States Government. Most recently, the International Court of Justice confirmed the continuing vitality of the Lotus principle in its July 8, 1996, Advisory Opinion on 5 the Legality of the Threat or Use of Nuclear Weapons. 6 Moreover, the United States Government cited the Lotus principle to justify its prosecution of German war criminals after World War II in military courts set up pursuant to international agreement of the victor states. In response to the Defense argument in the Hadamar Trial57 that no international legal authority existed that would permit an occupying power's military commissions to try offenders whose crimes were committed prior to the occupation, the United States argued "The principle of the Lotus Case, applied to the case before this Commission, means that the jurisdiction of the Commission, as a question of international law, need be denied only upon a showing that there is a generally accepted rule of interna' tional law which would prohibit the exercise of such jurisdiction. 58 Fifty years later, in its brief to the World Court in the Nuclear Weapons Case, the United States similarly argued: "It is a fundamental principle of international law that restrictions on States cannot be presumed but
The ICJ majority opinion concluded: "State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition" which the Court found existed in the form of international humanitarian law. Advisory Opinion on the
56
Legality of the Threat or Use of Nuclear Weapons, I C.J.Rep. 1996 at para. 52.
Only the dissenting judges (Weeramantry and Shahabuddeen) argued that the burden of showing "authorization" fell on the nuclear powers. Id., Shahabuddeen Dissent, at 15. 57 The case involved claims that the defendants and their underlings had executed by lethal injection nearly five hundred Polish and Russian civilians at a sanatorium in Hadamar, Germany. 58 Charles H. Taylor, Memorandum, Has the Commission Jurisdictionto Hear and Determine the Hadamar Case?, U.S. JAGD Document declassified on June 19,
1979 (on file with the author).
Jurisdiction with Respect to Crime must be found in conventional law specifically accepted by them or in 59 customary law generally accepted by the community of nations., In the setting of international criminal law, the contemporary logic of the Lotus principle is supported by the nature of State sovereignty and the embryonic status of international law relative to domestic law. The continued growth and evolution of international criminal law requires a permissive legal culture, which encourages State experimentation with new forms of collective international jurisdictional arrangements. While several of the universal jurisdiction treaties cannot be said to represent a codification of existing customary international law (indeed some, like the Hostage Taking Convention have been ratified by relatively few states), the offenses they proscribe do share the two fundamental characteristics of other crimes of universal jurisdiction, namely: (1) they are so threatening to the international community or so heinous in scope and degree that they offend the interest of all humanity; and (2) they generally occur in situations in which the territorial State or State of nationality of the accused is unlikely to exercise jurisdiction. Thus, under the Lotus principle, the parties to these treaties have a legitimate interest in exercising extraterritorial jurisdiction over the nationals of non-party States who commit these offenses, so long as no international legal rule exists which would prohibit it. The nullem crimen sine lege principle The international maxim nullem crimen sine lege, codified in the International Covenant on Civil and Political Rights, as well as the Nuremberg Judgment, provides that "no one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed. ' ' 60 Some might argue that application of treaty-based universal jurisdiction over the nationals of non-party States runs afoul of the nullem crimen principlebecause the defendant is being prosecuted for an offense that did not constitute a recognized crime in
'9Written Statement of the Government of the United States of America, Before the International Court of Justice, Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, June 20, 1995, at 8 (on file with the author). 60 International Covenant on Civil and Political Rights, 16 Dec. 1966, art. 15, 999
U.N.T.S. 171; Nazi Conspiracy and Aggression: Opinion and Judgment 49 (U.S. Gov. Printing Office 1947).
Harvard Research on International Law the defendant's State of nationality or even in the State in whose territory the offense was committed. An analogous argument was raised and rejected by the Nuremberg Tribunal fifty years ago. In explaining its holding, the Nuremberg Tribunal stressed that "the maxim nullem crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice.' The Tribunal concluded that it was not unjust to punish the Nazis for the crimes prescribed in the Nuremberg Charter because given the nature of the crimes the defendants must have known that what they were doing was wrong, whether or not it was permitted by their State of nationality. 62 In rejecting the nullem crimen objection to the newly defined "crime against humanity," the Control Council Law No. 10 Tribunal at Nuremberg similarly reasoned: "In the main, the defendants in this case are charged with murder [though on a massive scale]. Certainly no one can claim with the slightest pretense that there is any taint of ex post 63 factoism in the law of murder Similarly, whether or not a defendant's state of nationality is a party to the Hostage Taking Convention, the Hijacking Convention, or the Aircraft Sabotage Convention, the perpetrator cannot seriously argue that he did not know that hostage taking or hijacking or blowing up an aircraft was a crime. And he is on notice by the existence of these multilateral conventions (whether or not they are widely ratified) that he can be called to answer for such crimes in the courts of State Parties to these treaties. Thus, the nullem crimen principle is not violated by the exercise of treaty-based jurisdiction over the nationals of non-party states. The Vienna Convention Article 34 of the Vienna Convention on the Law of Treaties provides that "[a] Treaty does not create either obligations or rights for a third state without its consent," and Article 35 states that a Treaty cannot establish an obligation on a non-party State unless it "expressly accepts that obligation in writing. '64 Does a State's exercise of Treaty-based
61 Decision
of the International Military Tribunal at Nuremberg, In re Goering and
Others (October 1, 1946) InternationalLaw Reports 203. 62
id.
In Re Ohlendorf and Others (EinsatzgruppenTrial), U.S. Military Tribunal at Nuremberg, 15 Int'l L. Rep. 656 (1948). 64 David Scheffer, "International Criminal Court: The Challenge of Jurisdiction,"
63
address at the Annual Meeting of the American Society of International Law
Jurisdiction with Respect to Crime universal jurisdiction over the nationals of non-party States for crimes that are not yet assimilated into customary international law contravene this rule of international law? In answering this question, one must appreciate that the treaties conferring universal jurisdiction on State parties that have been discussed above do not per se impose "obligations" in the sense of duties or responsibilities on non-parties by providing for jurisdiction over their nationals. 65 The specific obligations imposed on State Parties by these treaties include the duty to domestically criminalize the specified offense, the duty to extradite or prosecute an offender found in its territory, and the duty to provide judicial assistance for the prosecution of such offenders by other States. None of these obligations are applied directly or indirectly to non-party States. The legal objection to treaty-based jurisdiction over non-party nationals is perhaps better cast as a claim that such exercise of jurisdiction would abrogate the pre-existing rights on non-parties which, in turn, would violate the law of treaties. Support for this view can be garnered from the International Law Commission's official Commentaries to the Vienna Convention, which state: "[i]ntemational tribunals have been firm in laying down that in principle treaties, whether bilateral or multilateral, neither impose obligations on States which are not parties 66 nor modify in any way their legal rights without their consent., The real question then is whether there are any rights of non-party States that are abrogated by the exercise of treaty-based universal jurisdiction over their nationals. As an initial matter, it must be understood that states do not have a right to exercise exclusive jurisdiction over their nationals, even in the case of official acts. It is true that in the Middle Ages, Western states used treaties to protect their nationals from the jurisdiction of foreign courts. By the 19th century, however, the principle was applied only to legal systems seen as "inferior" to those of Western countries. And with the limited exception of status of forces (March 26, 1999), at 3, citing Vienna Convention on the Law of Treaties, Art. 35,
May 23, 1969, UN. Doc. A/Conf 39/27 at 289 (1969). 65 Cf, Madeline Morris, High Crimes andMisconceptions: The ICC and Non-Party States, 63 L. & CONTEMP. PROB. 114 (2000). 66 Report of the International Law Conmmission on the Work of its Eighteenth Session, Draft Articles on the law of Treaties with Commentaries, II Yearbook of the Int'l L. Comm'n 226 (Commentary to Draft Art. 30, "General Rule Regarding Third States").
Harvard Research on International Law agreements governing prosecution of members of the military, such treaties do not exist in modem times. 67 Thus, when another State seeks to prosecute a State's nationals, the latter may seek to intercede diplomatically on behalf of its citizen on the basis of comity, but it has no legal right under international law to insist that it be the exclusive fora for such prosecution. Another possible argument is that cases involving official acts taken pursuant to state policy and under state authority can affect the most fundamental interests of the State of nationality. It has been suggested that in such cases, the court's function resembles less that of a municipal criminal court than that of an international court for the adjudication of interstate legal disputes. 68 Since states are generally reluctant to agree to submit their disputes to binding third-party adjudication, this argument goes, their national policies should not be subject to adjudication in foreign courts without their consent. 69 This line of argument, however, blurs the important distinction between the state and its nationals.7 Under international law, these are two distinct legal entities, just as are a corporation and its shareholders under domestic law. With the exception of genocide and crimes against humanity, it is not relevant to proving the crimes enumerated in the above listed international conventions that the perpetrator acted in an official capacity on behalf of the state. 7 1 Thus, in most of these cases, there is not even the potential for indirect infringement of the interests of the State of nationality. And even with respect to genocide and crimes against humanity, evidence of state policy may be relevant, but is not necessary to prove the crimes. Further, even a finding that an individual is guilty of committing a crime in an official capacity in the context of a state policy implies at most an obiter dictum as to state responsibility, and it will
See Reid v. Covert, 354 U.S. 1 (1957). Cf Madeline Morris, High Crimes andMisconceptions: The ICC and Non-Party States, 63 L. & CONTEMP. PROB. 103 (2000). 69 d. 70 See Barcelona Traction Case (Belgium v. Spain) 5 Feb. 1970, 1C.J. Rep. 1970,
67
68
at3. 71 Indeed, in the Lockerbie bombing trial of two Libyian intelligence agents before the Scottish Court in the Netherlands, the Prosecutor agreed before trial not to make the case about Libyan leader Moamar Khadafi.
Jurisdiction with Respect to Crime often fall short of that. 7 2 Modem international practice highlights the distinction between individual criminal responsibility and state responsibility, and the different fora and procedures for determining these issues. Thus, military officers and civilian leaders acting at the behest of the Federal Republic of Yugoslavia have been indicted and tried by national courts for crimes against humanity and genocide, while the Federal Republic of Yugoslavia is charged with genocide by Bosnia in a 73 case pending before the International Court of Justice. State practice As early as 1983, U.S. courts were exercising treaty-based universal jurisdiction over the nationals of non-party States with respect to the crews of so-called "stateless" vessels on the high seas engaged in 74 narcotics trafficking. In the case of United States v. Marino-Garcia, the U.S. Eleventh Circuit Federal Court of Appeals held that the 1958 Law of the Sea Convention gave the United States jurisdiction 75 to prosecute Honduran and Columbian crew members of two "stateless" vessels, which were boarded by U.S. Coast Guard officials on the high seas and found to contain thousands of pounds of marijuana. The Court was not troubled by the fact that neither Honduras nor Colombia were parties to the 1958 Law of the Sea Convention nor that customary international law 76 not authorize prosecution of crew members of a did "stateless" vessel.
72 See Otto Triffterer, Prosecutionof Statesfor Crimes ofState, 67 INT'L REV. PEN.
L. 341, 346 (1996).

73
See Francis A. Boyle, The Bosnian People Charge Genocide: Proceedings at the International Court of justice Concerning Bosnia v. Serbia on the Prevention and Punishment of the Crime of Genocide 4-80 (1996). 74 679 F.2d 1373, 1383, 1386 87 (11th Circ. 1982). See also Carmine R. Zarlenga, Case Note: UnitedStates v. Marino-Garcia,52 U. CIN. L. REv. 292 (1983); Patrick
Sorek, Jurisdiction over Drug Smuggling on the High Seas: It's a Small World AfterAll, 44 U. PITT. L. REv. 1095 (1983). 75 21 U.S.C. Section 955a makes it a crime to possess a controlled substance with intent to distribute it on board a vessel subject to the jurisdiction of the United States. Section 955b(d) includes stateless vessels, as defined by Article 6 of the
1958 Convention on the High Seas, as vessels subject to the jurisdiction of the
United States. Under this definition, "stateless vessels" include vessels that sail under the flags of two or more states using the flags according to convenience. 76 TREATIES IN FORCE, U.S. Department of State Publication 9453 (1990), at 345.
Harvard Research on International Law The question of the application of universal jurisdiction under the anti-terrorism treaties with respect to nationals of non-party States was addressed by the D.C. Circuit Federal Court of Appeals in the case of United States v. YuniS. 7 7 The United States had indicted, apprehended and prosecuted Fawaz Yunis, a Lebanese national, for hijacking from Beirut airport a Jordanian Airliner whose passengers included two U.S. citizens. 78 The United States asserted jurisdiction in the first instance on the basis of the International Convention against the Taking of Hostages, 79 a treaty which provides jurisdiction over hostage-takers, despite the fact that Lebanon was not a party to the treaty8 and did not consent to the prosecution of Yunis in the United States.8" The Court upheld its jurisdiction based on the domestic legislation implementing the Convention which had conferred upon it universal and passive personality jurisdiction over this type of terrorist act.8 2 As Counsel to the State Department's Counter-Terrorism Bureau at the time, I recall that U.S. government officials in the Departments of Justice and State perceived this confirmation that the anti-terrorism conventions could
77 United States v. Yunis, 681 F. Supp. 896 (D.D.C. 1988); United States v. Yunis,
924 F.2d 1086 (D.C. Cir. 1991). See also Peter D. Trooboff, Aircraft Piracy FederalJurisdiction-Nonresident Alien on Foreign Soil, 83 AM. J. INT'L L. 94 (1989); Mason H. Drake, United States v. Yunis: The D.C Circuit's Dubious Approval of U.S. Long-Arm Jurisdictionover Extraterritorial Crimes, 87 Nw. U. L. REV. 697 (1993). 78 UnitedStates v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). 79 International Convention Against the Taking of Hostages, 18 December 1979, U.N. G.A. Res. 34/145 (XXXIV), 34 U.N. GAOR Supp. (No. 46), at 245, U.N. Doc. A/34/146, reprinted in 18 I.L.M. 1456.
so
TREATIES TN FORCE,
U.S. Department of State Publication 9453 (1990), at 386
(listing parties to the treaty). 81 Yunis, 924 F.2d at 1092. After Yunis was brought to the United States pursuant to the hostage-taking charge, the prosecution obtained a superseding indictment that included the additional crime of hijacking pursuant to the Convention for the Suppression of Unlawful Seizure of Aircraft (to which Lebanon was a party). Since the airliner in question was not registered to the United States and did not take off from or land in the United States, the hijacking charge could be brought only after the accused was "found" in U.S. territory. Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 22 U.S.T 1641, TI.A.S. No. 7192, 860 U.N.TS. 105. The hostage-taking Convention, in contrast, permits a State to assert jurisdiction (e.g., issue an indictment and make an arrest) where its nationals were victims of the hostage-taking. 82 UnitedStates v. Yunis, 924 F.2d at 1091.
Jurisdiction with Respect to Crime provide the basis for the United States to prosecute the nationals of nonparty States as an important precedent in the fight against terrorism. The Yunis precedent was later reaffirmed in United States v. Ali Rezaq, where the United States apprehended and prosecuted a Palestinian national for hijacking an Egyptian airliner, despite the fact that Palestine (his claimed country of nationality) is not party to the Hague Hijacking Convention. 83 The principle has also been applied in a series of recent cases in which the United States has asserted jurisdiction pursuant to the hostage-taking Convention over Chinese nationals who smuggled foreign citizens into the United States and held them captive until their relatives living in the United States paid ransom to secure their release. 84 In these cases the defendants unsuccessfully challenged the court's jurisdiction on equal protection grounds because only nonU.S. nationals in U.S. territory could be convicted of violating the domestic criminal statute implementing the Hostage Taking Convention, which carries with it a higher sentencing range than mere kidnapping. In none of these cases did the courts exhibit concern that China was not a party to the Convention which served as the basis for 85 U.S. jurisdiction over the defendants. The United States is not the only country that has asserted treatybased jurisdiction over the nationals of non-party States. In a case similar to Razaq, a Dutch court confirmed that it had jurisdiction pursuant to the Hijacking Convention and the Aircraft Sabotage Convention over a Palestinian defendant who claimed to be resident of East 86 Jerusalem. In light of these precedents, the United States' position that international law prohibits the ICC from exercising jurisdiction over the nationals of non-party States has the potential of negatively effecting existing law enforcement authority with respect to terrorists and narcotraffickers, as well as torturers and war criminals. Had Ambassador Scheffer's remarks been on the record prior to the Yunis, Ali Rezaq,
83
84
134F.3d 1121, 1130 (D.C. Cir. 1998). United States v. Wang Kun Lue, 134 F. 3d 79 (2nd Cir. 1998); United States v.
Lin, 101 F.3d 760 (D.C. Cir. 1996); United States v. Ni Fa Yi, 951 F. Supp. 42 (S.D.N.Y. 1997); United States v. Chen De Yian, 905 F. Supp. 160 (S.D.N.Y. 1995). Cf. UnitedStates v. Santos-Riviera, 183 F.3d 367 (5th Cir. 1999). 85 TREATIES rN FORCE, U.S. Department of State Publication 9453 (1990), at 386
(listing parties to the treaty). 86
Public Prosecutorv. S.H.T., 74 Int'lL. Reports 162, 163 (1987).
Harvard Research on International Law Marino-Garcia and the Chinese smuggling cases, the defendants in those cases would undoubtedly have cited this "official U.S. position" to support their challenge to the validity of the United States assertion of treaty-based jurisdiction over nationals of non-party States. Since terrorist acts and other international crimes are most often committed by nationals of rogue states that encourage or condone such activity, limiting the application of the treaties to nationals of state parties would significantly undermine their effectiveness. It would render the community of States essentially helpless to take legal measures against perpetrators found in their 87 territory who are nationals of states that do not ratify the conventions. Permissive verses Mandatory Jurisdiction While the entire focus of the Harvard Research Project was on permissive rather than mandatory jurisdiction, the commentary to Article 17 ("Interpretation of Convention") does acknowledge that "[a] State may be under an international obligation to exercise penal competence in certain cases, by virtue of some principle of international law or treaty provision." 88 In the decades since the publication of the Harvard Research Project, several international conventions have been concluded that require parties to prosecute or extradite offenders found within their territory, using universal jurisdiction. Other than torture and genocide, however, crimes against humanity are not subject to such a convention. In recent years, a growing number of scholars and international human rights organizations have asserted that there now exists a customary international law duty to prosecute perpetrators of all crimes against humanity, and that consequently the granting of amnesty or asylum to such individuals is unlawful. 89 This section examines the merits of such a contention.
87 Malvina Halberstam,4 Terrorism on the High Seas: The Achille Lauro, Piracy and
the IMO Convention on Maritime Safety, 82 8 HarvardResearch, supra n. 1, 632.

89
AMER.
J.
INT'L
L. 269, 272 (1988).
See M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW, 492, 500-01 (1992) (arguing that there is an international duty to prosecute or extradite those who commit crimes against humanity); Leila Nadya Sadat, Universal Jurisdiction, National Amnesties, and Truth Commissions:
Reconciling the Irreconcilable, in
UNIVERSAL
JURISDICTION:
NATIONAL
COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL
LAW 194-201 (Stephen Macedo ed., 2003) (arguing that amnesties create a
Jurisdiction with Respect to Crime
Customary internationallaw
Customary international law, which is just as binding upon states as treaty law, arises from "a general and consistent practice of states followed by them from a sense of legal obligation" referred to as opinio juris.90 Under traditional notions of customary international law, "deeds were what counted, not just words." 91 Yet those who argue that customary international law precludes amnesty/exile for crimes against humanity base their position on nonbinding General Assembly resolutions,92 hortative declarations of international "culture of impunity" incompatible with international justice); M. Cherif
Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 LAW & CONTEMP. PROBS. 63, 63 (1996) (arguing that states have an obligation to prosecute jus cogens crimes); Carla Edelenbos, Human Rights Violations: A Duty to Prosecute?, 7 LEIDEN J. INT'L L. 5, 14 (1994) (noting U.N.'s affirmation of duty to prosecute war crimes); Diane F. Orentlicher, Settling Account: The Duty to Prosecute Human Rights Violations of a PriorRegime, 100 YALE L.J. 2537, 2585, 2593 (1991) (explaining that analysts interpret law generated by the Nuremberg trials, and U.N. actions ratifying that law, to "require punishment of crimes against humanity"); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in InternationalLaw, 78 CAL. L. REv. 451, 461 (1990) (urging the necessity of an international duty to investigate grave human violations).
90 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
102(2) (1987); see also Statute of the International Court of Justice art. 38(1)(b), June 26, 1945, 59 Stat. 1031, 1051, available at http://www.icjcij.org/icjwww/ibasicdocuments.htm (providing that sources of international law applied by the court include "international custom, as evidence of a general practice accepted as law").
STATES
91Bruno Simma, InternationalHuman Rights and General International Law: A
Comparative Analysis, in 4 (Book 2) Collected Courses of the Academy of

European Law 153, 216 (1995). 92 See, e.g., Declaration on Territorial Asylum, G.A. Res. 2312 (XXII), art. 4, U.N. GAOR, 22d Sess., Supp. No. 16, U.N. Doc. A/6716 (Dec. 1, 1967) (stating that the right to asylum may not be invoked for crimes contrary to the purposes and principles of the United Nations); Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against Humanity, G.A. Res. 2712 (XXV), 3, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A18028 (Dec. 15, 1970) (adopted 55 4 with thirty-three abstentions) (condemning crimes against humanity and calling "upon the States concerned to bring to trial persons guilty of such crimes"); Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against Humanity, G.A. Res. 2840 (XXVI), 4, U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc.
Harvard Research on International Law conferences, 93 and international conventions that are not widely ratified, 94 rather than on any extensive state practice consistent with such a rule. Commentators often cite the 1967 U.N. Declaration on Territorial Asylum 95 as the earliest international recognition of a legal obligation
A/8429 (Dec. 18, 1971) (adopted 71 0 with forty-two abstentions) (affirming that a state's refusal "to cooperate in the arrest, extradition, trial and punishment" of persons accused or convicted of crimes against humanity is "contrary to the United Nations Charter and to generally recognized norms of international law"); Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074 (XXVIII), 1, U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/9030 (Dec. 3, 1973) (adopted 94-0 with twenty-nine abstentions) (providing that crimes against humanity "shall be subject to investigation and the persons against whom there is evidence that they have conmmitted such crimes shall be subject to tracing, arrest, trials and, if found guilty, to punishment"); Declaration on the Protection of All Persons from Enforced Disappearances, G.A. Res. 47/133 pmbl., art. 14, U.N. Doc. A/47/49, at 207, 209 (Dec. 18, 1992) (equating disappearances to a crime against humanity and requiring states to try any person suspected of having perpetrated an act of enforced disappearance); see also Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. Res. 1989/65 annex 18, U.N. Doc. E/1989/89, at 53 (May 24, 1989) (resolving that states shall bring to justice those accused of having participated in extra-legal, arbitrary, or summary executions). It is noteworthy that large numbers of countries abstained during voting on the above listed resolutions, and thereby did not manifest their acceptance of the principles enumerated therein. 93 The final Declaration and Programme of Action of the 1993 World Conference on Human Rights affirms that "[s]tates should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law." World Conference on Human Rights, June 14-25, 1993, Vienna Declarationand Programme ofAction 60, U.N. Doc. A/Conf. 157/23 (June 25, 1993). 94 See, e.g., Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, art. l(b), done Nov. 26, 1968, 754 U.N.TS. 73 (entered into force Nov. 11, 1970) (providing that no statutory limitation shall apply to crimes against humanity, iffespective of the date of their conmmission). Only thirty-nine states have ratified the Convention. Even if the Convention were more widely ratified, the prohibition on applying a statute of limitations to crimes against humanity is not the equivalent of a duty to prosecute such crimes.
Jurisdiction with Respect to Crime to prosecute perpetrators of crimes against humanity. The Declaration provides that "the right to seek and enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for 96 considering that he has committed a ...crime against humanity. Yet according to the historic record of this resolution, "[t]he majority of members stressed that the draft declaration under consideration was not intended to propound legal norms or to change existing rules of international law, but to lay down broad humanitarian and moral principles upon which States might rely in seeking to unify their practices relating to asylum.",97 This evidences that, from the outset, the General Assembly resolutions concerning the prosecution of crimes against humanity were aspirational only, and not intended to create any binding duties. In addition to this contrary legislative history, the trouble with an approach to proving the existence of customary international law that focuses so heavily on words is "that it is grown like a flower in a hothouse and that it is anything but sure that such creatures will survive in the much rougher climate of actual state practice." 98 Indeed, to the extent any state practice in this area is widespread, it is the practice of granting amnesties or asylum to those who commit crimes against humanity. 99 That the United Nations itself has felt free of legal
15
Declaration on Territorial Asylum, G.A. Res. 2312 (XXII), art. 1(2), U.N. d. at 81. Even if the Declaration were binding, the prohibition on granting
Sess. 24, Supp. No. 16, U.N. Doc. A/6716 (Dec. 14, 1967).
GAOR, 96
asylum is not the equivalent of a duty to prosecute, and informal sanctuary can
be accorded without a formal grant of asylum.

E.68.1.1.
97 Declarationof TerritorialAsylum, 1967 U.N.Y.B. 758, 759, U.N. Sales No.

98 Simma, supra note 91, at 217. 99 During the past thirty years, Angola, Argentina, Brazil, Cambodia, Chile, El
Salvador, Guatemala, Haiti, Honduras, Ivory Coast, Nicaragua, Peru, Sierra Leone, South Africa, Togo, and Uruguay have each, as part of a peace arrangement, granted amnesty to members of the former regime that committed interna-
tional crimes within their respective borders. In addition to amnesty (which

immunizes the perpetrator from domestic prosecution), exile and asylum in a foreign country (which puts the perpetrator out of the jurisdictional reach of domestic prosecution) is often used to induce regime change, with the blessing and involvement of significant states and the United Nations. Peace negotiators call this the "Napoleonic Option," in reference to the treatment of French emperor Napoleon Bonaparte who, after his defeat at Waterloo in 1815, was exiled to St. Helena rather than face trial or execution. More recently, a number
Harvard Research on International Law constraints in endorsing recent amnesty and exile-for-peace deals in situations involving crimes against humanity suggests that customary international law has not yet crystallized in this area. The Special Court for Sierra Leone confirmed this when it recently held that domestic amnesties for crimes against humanity were not unlawful under international law.' 00 Commentators may point to the Secretary General's August 2004 Report to the Security Council on the Rule of Law and Transitional Justice as an indication that the United Nations has recently altered its position on the acceptability of anmesty/exile for peace deals. In that report, the Secretary-General of the United Nations said that peace agreements and Security Council resolutions and mandates should "[r]eject any endorsement of amnesty for genocide, war crimes, or crimes against humanity, including those relating to ethnic, gender and sexually based international crimes, [and] ensure that no such amnesty previously granted is a bar to prosecution before any United 0 Nations-created or -assisted court." 1 1 It is more significant, however, that in the Security Council's debate on the Secretary-General's Report, there was no consensus on this particularly controversial recommendation (only two of the fifteen members of the Council of dictators have been granted sanctuary abroad in return for relinquishing power. Thus, for example, Ferdinand Marcos fled the Philippines for Hawaii; Baby Doc Duvalier fled Haiti for France; Mengisthu Haile Miriam fled Ethiopia for Zimbabwe; Idi Amin fled Uganda for Saudi Arabia; General Raoul Cedras fled Haiti for Panama; and Charles Taylor fled Liberia for exile in Nigeria-a
deal negotiated by the United States and U.N. envoy Jacques Klein. See Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, 63 WASH. & LEE L. REV. 339 376 (2006). 100 Prosecutor v. Kallon & Kambara, Case Nos. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lom6 Accord Amnesty 7 (Mar. 13, 2004), available at <http://www.sc-sl.org/Documents/ SCSL-04-15-PT-060-I.pdf> & <http://www.sc-sl.org/ SCSL-04-15-PT-060-
II.pdf> (holding that there was no "general obligation for States to refrain from amnesty laws on these crimes .... that] [c]onsequently, if a State passes [and any such law, it does not breach a customary rule" (quoting ANTONIO CASSESE,
315 (2003))). 101 Secretary-General, Report of the Secretary-Generalon the Rule of Law The and TransitionalJustice in Conflict and Post-Conflict Societies 64, U.N.Doc. S/2004/616 (Aug. 23, 2004). See also U.N. SCOR, 59th Sess., 5052nd mtg. at 5, U.N.Doc. S/PV.5052 (Oct. 6, 2004), for the Secretary-General's remarks to the Security Council.
INTERNATIONAL CRIMINAL LAW
Jurisdiction with Respect to Crime Brazil and Costa Rica-spoke in favor of it while several opposed it), and the statement approved by the Council at the end of the debate made no reference to the issue of amnesty. 102
Jus cogens
The concept of jus cogens-meaning "peremptory norms" -is said to be among the "most ambiguous and theoretically problematic of the doctrines of international law."' 10 3 Since the inception of the modem state system three and a half centuries ago, 10 4 international law has been based on notions of consent. Under this concept of jus dispositivium (positive law), states were bound only to treaties to which they had acceded and to those rules of customary international law to which they had acquiesced. The concept of jus cogens, in contrast, is based in part on natural law principles that "prevail over and invalidate international agreements and other rules of interna0 tional law in conflict with them."'1 5 Though the term itself was not employed, the jus cogens concept was first applied by the U.S. Military Tribunal at Nuremberg, which declared that the treaty between Germany and Vichy France approving the use of French prisoners of war in the German armaments industry was void under international law as contra bonus mores
U.N. SCOR, 59th Sess., 5052nd mtg. at 14, U.N. Doc. S/PV.5052 (Oct. 6, 2004); U.N. SCOR, 59th Sess., 5052nd mtg., Resumption 1 at 26, 37 38, U.N. Doc. S/PV.5052 (Resumption 1) (Oct. 6, 2004). 103 Christopher A. Ford, Adjudicating Jus Cogens, 13 WIS. INT'L L.J. 145, 145 (1994); see also Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens, 6 CONN. J. INT'L L. 1, 1 2 (1990) (discussing the broad array of norms lumped under the heading jus cogens). 104The state system, characterized as an association of sovereign states governed
102
by positive law rules to which they must consent before they are bound, is widely believed to have originated with the Peace of Westphalia, which ended the Thirty Years War in 1648. Stephane Beaulac, The Westphalian Legal
Orthodoxy-Myth or Reality?, 2 J. HisT. Latin and English versions, see 1 (Clive Parry ed., 1969).
INT'L
L. 148, 148 (2000). For the full 119, 270
text of the Peace of Westphalia (Osnabruck and Munster) Treaties, in both their
CONSOLIDATED TREATY SERIES 105 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 102 cmt. k (1987).
Harvard Research on International Law (contrary to fundamental morals). 10 6 The debates within the U.N. International Law Commission, which codified the jus cogens 17 0 concept in the 1969 Vienna Convention on the Law of Treaties, reflect the view that the phenomenon of Nazi Germany rendered the purely contractual conception of international law insufficient for the modem era. 10 8 Consequently, the International Law Commission opined that a treaty designed to promote slavery or genocide, or to prepare for aggression, ought to be declared void. 0 9 Thus, pursuant to the jus cogens concept, states are prohibited from committing crimes against humanity and an international agreement between states to facilitate commission of such crimes would be void ab initio. Moreover, there is growing recognition that universal jurisdiction exists such that all states have a right to prosecute 110 or entertain civil suits against the perpetrators of jus cogens crimes. From this, some commentators take what they view as the next logical step and argue that the concept also prohibits states from undertaking
106
United States v. Krupp, 9
TRIALS OF WAR CRIMINALS BEFORE THE
NIERENBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW
No. 10, at
1395 (1950). 107 Article 53 of the Vienna Convention provides:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Vienna Convention on the Law of Treaties art. 28, May 23, 1969, 112 Stat. 2681-822, 1155 U.N.TS., at 344.
108
Remarks of Antonio de Luna (Spain) in Summary Records of the 15th
Session, 684th Meeting, [1963] 1 Y.B. Int'l L. Comm'n 72, A/CN.4/156 & Addenda. 10 9
Id. 110
61, U.N. Doc.
Michael P. Scharf, The ICC's Jurisdiction over the Nationals of Non-Party

LAW
States: A Critique of the U.S. Position, 64
&
CONTEMP. PROBS.
67, 88 90
(2001) ("It is now widely accepted that crimes against humanity are subject to
universal jurisdiction."); Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir.
1985) (observing that "[i]nternational law recognizes 'universal jurisdiction' over certain offenses," including crimes against humanity and genocide).
Jurisdiction with Respect to Crime any action that would frustrate prosecution, such as granting amnesty or asylum to those who have committed crimes against humanity. Such scholars fail, however, to take into consideration the fact that althoughjus cogens has natural law underpinnings, the concept is also related to customary law. A rule will qualify as jus cogens only if it is "accepted by the international community of States as a whole as a norm from which no derogation is permitted."'11 Thus, jus cogens norms have been described by one court as "a select and narrow subset of the norms recognized as customary international law."'1 12 As with ordinary customary international law, jus cogens norms are formed through widespread state practice and recognition,113 but unlike ordinary customary international law, a state cannot avoid application of ajus cogens norm by being a persistent objector during its formation. Though there is no question that the international community has accepted that the prohibition against committing crimes against humanity qualifies as a jus cogens norm,11 4 this does not mean that
I Vienna Convention on the Law of Treaties art. 28, May 23, 1969, 112 Stat. 2681-822, 1155 U.N.TS., at 344. 112Princz v. FederalRepublic of Germany, 26 F.3d 1166, 1180 (D.C. Cir. 1994) (Wald, J., dissenting) (citing Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988)). 113As Judge Patricia Wald noted in Princz: To ascertain customary international law, judges resort to "the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators." These same tools are used to determine whether a norm of customary international law has attained the special status of ajus cogens norm. Id. (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). 11 4 See Siderman de Blake v. Argentina, 965 F.2d 699, 715 (9th Cir. 1992) ("The universal and fundamental rights of human beings identified by Nurembergrights against genocide, enslavement, and other inhumane acts-are the direct ancestors of the universal and fundamental norms recognized as jus cogens." (citation omitted)); Demjanjuk, 776 F.2d at 582 (stating that "[i]nternational law recognizes 'universal jurisdiction' over certain offenses," including crimes against humanity and genocide); Hirsh v. Israel, 962 F. Supp. 377, 381 (S.D.N.Y. 1997), aff'd 133 F.3d 907 (2d Cir. 1997) ("A foreign state violatesjus cogens when it participates in such blatant violations of fundamental human rights as 'genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination."' (quoting Comm. of U.S. Citizens Living in Nicar. v.
Harvard Research on International Law the associated duty to prosecute has simultaneously attained an equivalent status. In fact, all evidence is to the contrary. Not only have there been numerous instances of states providing amnesty and asylum to leaders accused of crimes against humanity, but, even more telling, there have been no protests from states when such amnesty or asylum has been offered. Moreover, there has been widespread judicial recognition that the jus cogens nature of crimes against humanity does not prevent accused perpetrators from successfully asserting head of state immunity or sovereign immunity to avoid criminal or civil liability in foreign courts. 15 Becausejus cogens, as a peremptory norm, would by definition supersede the customary international law doctrine of head of state immunity where the two come into conflict, the only way to reconcile these rulings is to conclude that the duty to prosecute has not attainedjus cogens status.
Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988)); Barcelona Traction, Light & Power Co. (Belgium v. Spain), 1970 IC.J.Rep. 3, 32 (Feb. 5) (distinguishing between rights of protection that have entered into the body of general international law and those that are conferred by international instruments); Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 IC.J.Rep. 15, 23 (May 28) ("The principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation."); Theodor Meron, International Criminalizationof InternalAtrocities, 89 AM. J. INT'L L. 554, 558 (1995) ("The core prohibitions of crimes against humanity and the crime of genocide constitute jus cogens norms."). 115 See Wei v. Jiang, 383 F.3d 620, 627 (7th Cir. 2004) (concluding that violation ofjus cogens is not an implied waiver of head of state immunity); Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 244 (2d Cir. 1996) (same); Princz v. FederalRepublic of Germany, 26 F.3d 1166, 1173 (D.C. Cir. 1994) (same); Siderman de Blake v. Argentina, 965 F.2d 699, 719 (9th Cir. 1992) (determining whether sovereign immunity under U.S. law applies to jus cogens violations); Regina v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147 (H.L. 1999) (U.K.) (allowing head of state immunity defense for crimes committed prior to ratification of Torture Convention); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 1.C.J. Rep. 21 22 (Feb. 14), available at http://www.icjcij.org/icjwww/idocket/ iCOBE/iCOBEframe.htm (denying exception to head of state immunity for war crimes); Al-Adsani v. United Kingdom, No. 35763/97, 61, Eur. Ct. H.R. (2001) (affirming state immunity from international civil
suits).
Jurisdiction with Respect to Crime As compared to the substantive rule of law prohibiting states from entering into international agreements that facilitate the commission of crimes against humanity, the procedural obligation of third parties to prosecute such crimes after their commission constitutes a far greater intrusion into a state's internal sovereignty, with far less justification. Thus, it is sensible that such an encroachment would require the state's consent through the carefully negotiated provisions of a treaty such as the Geneva Conventions, Genocide Convention, or Torture Convention which would narrowly define the applicable circumstances and perhaps like the Rome Statute provide escape clauses permitting states to disregard the obligation to prosecute when strict enforcement 16would frustrate greater interests of international 1 peace and justice. Conclusion In recent years, various academic and professional organizations have sought to replicate and update the work of the Harvard Research Project. Thus, in 2001, Princeton University convened a distinguished group of scholars which promulgated the "Princeton Principles on Universal Jurisdiction,"'1 17 and in 2005 the Institut de Droit International adopted a comprehensive resolution on universal jurisdiction.1 18 Although neither of these texts explicitly references the Harvard Research Project, they unmistakably reflect the continuing influence and vitality of the 1935 work. The Harvard Research Project proved quite prescient in regard to the evolution of universal jurisdiction during the seventy years subsequent to its publication. The Harvard Research Project accurately foresaw the expansion of both treaty-based and customary law-based universal jurisdiction, and the need for limits to the exercise of universal jurisdiction "in absentia" to avoid interstate tensions. Its
116 Rome Statute for the International Criminal Court arts. 16, 53, July 17, 1998,
2187 UNTS. 90 [hereinafter Rome Statute], available at http://www.un.org/
law/icc/statute/englishrome-statute(e).pdf.
117 STEPHEN MACEDO, UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE
PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL LAW
21 25 (2004)
(reproducing Princeton Principles). 118 Claus Krebeta, Universal Jurisdiction Over International Crimes and the
Institut de Droit International,4 J.
INT' CRIM. JUSTICE
561 (2006).
Harvard Research on International Law view that, in the absence of a treaty requiring prosecution, universal jurisdiction should be deemed permissive rather than mandatory reflects the fact that the international legal order is still governed by principles of positive law under the 357-year-old Westphalian concept of sovereignty.11 9 Indeed, contemporary state practice belies the existence of a customary international law duty (based on the positive law notion of state acquiescence to rules over time) to exercise universal jurisdiction outside of the treaty framework. Consequently, the obligation to prosecute and the corresponding duty to refrain from frustrating prosecution through amnesty or exile applies only to certain treaty-based crimes of universal jurisdiction where the treaty sets forth such an obligation and the affected states are party to the treaty at the time of the acts in question.
119 The state system, characterized as an association of sovereign states governed
by positive law rules to which they must consent before they are bound, is widely believed to have originated with the Peace of Westphalia, which ended the Thirty Years War in 1648. Stephane Beaulac, The Westphalian Legal Orthodoxy Myth or Reality?, 2 J. HIST. INT'L L. 148, 148 (2000). For the full text of the Peace of Westphalia (Osnabruck and Munster) Treaties, in both their Latin and English versions, see 1 CONSOLIDATED TREATY SERIES 119, 270
(Clive Parry ed., 1969).
Chapter 11
LAW OF TREATIES
Anthony Aust
A good reason for now assessing the value of the 1935 Harvard draft Convention on the Law of Treaties 1 is to see if we can learn any lessons which may be useful for future attempts at codification of customary international law. This may best be done largely by reference to the later work of the International Law Commission which eventually resulted in the (spectacularly successful) Vienna Convention on the Law of Treaties 1969. What lessons can we learn from what the Harvard project, and later the Commission, did in attempting to codify this fundamental area of international law? And what general conclusions can be drawn from the attempt. The work on the law of treaties was carried out by the Research in International Law project under the auspices of the Harvard Law School. Mr. James W. Garner was appointed as the "Reporter" assisted by Mr Valentine Jobst, both of the University of Illinois ("the authors"). Mr. Garner (age 61) had as advisers 11 academics and, apparently, seven practitioners. The latter included the State Department Legal Adviser, Green H. Hackworth, and three legal colleagues from the State Department (Charles M. Barnes, Richard W. Flournoy, and Hunter Miller). Hackworth was then 49 and had been with State for 16 years. From 1946 to 1960, he was a judge of the International Court of Justice, including three years as President. Miller was 57, with long experience of treaty practice. The three private practitioners were from New York or Washington. So the advisers would seem to have been fairly well balanced as between scholars and practitioners. The authors and their advisers had only seven two or three-day meetings between November 1932 and December 1934. We will come back to the issue of time when later assessing the value of their work. They compiled an extensive and impressive 14-page bibliography, 2 including important works by Manley Hudson and Charles Hyde. Since the First World War, there had been some half-hearted
' 29 Am. J. Int'lL. (Supp.) 653 (1935). See also the HarvardResearchin Inter-
national Law (reprint by W.S. Hein, 2008). The text of the draft convention
appears below as Appendix 10. 2 Ibid., 671-685.
Harvard Research on International Law attempts to codify the law of treaties. In 1927, the League of Nations Committee of Experts for the Progressive Codification of International Law concluded that the time was "sufficiently ripe" for codifycation of the law of treaties. But nothing happened, the League leaving the initiative to its Secretariat and the Member States, which by the 1930s had more important problems to grapple with. In 1928 the Conference of American States adopted the Havana Convention on Treaties. 3 Only a few States ratified it, and it is now almost completely forgotten. The Introductory Comment 4 to the Harvard draft dismisses the Havana Convention as being "subject to many objections," the principles embodied in it not making "any significant contribution to the clarification of the law of treaties." The 1930 Hague Conference for the Codification of International Law did not attempt to deal with the subject, being concerned instead with nationality and statelessness. The Introductory Comment emphasises that there was no clear and well-defined law of treaties, due partly to the making of treaties being "for the most part in the hands of persons who are not experts and whose habits lead them to seek results with little regard for legal forms" (i.e. diplomats). The source of this (perhaps Hackworth) would be sad to hear that lack of knowledge of the law of treaties is still rife among diplomats and other government officials, though some of them are now saved from the worst excesses by in-house legal advisers. Perhaps the three most important matters highlighted in the Introductory Comment were the lack of an agreed definition of a "treaty;" confused practice as to which persons could enter into treaties (i.e. capacity); and the need for the law of treaties to be "elastic" (i.e. flexible). In this the authors showed good understanding of the problems, which may reflect the knowledge and experience of Hackworth and his State Department colleagues. The Introductory Comment sums up the approach of the Harvard draft as (1) an attempt to set out the existing law, and sometimes the "desirable law," (2) an avoidance of classification of treaties according to their subject matter, since most such attempts were of "little
3 bid., 1205 1207. 4 Ibid., 666-671.
Law of Treaties practical value," 5 and (3) keeping the distinction between bilateral and multilateral treaties. Apart from the third point, this basic approach was sound. The first ILC Special Rapporteur on the Law of Treaties, James Brierly, had all the texts which the Harvard project had studied, but found the Harvard draft the most useful. But he also had an updated bibliography and detailed information about the latest practice from the Treaty Section of the UN Office of Legal Affairs.6 Harvard and Vienna
7 We will now consider the Harvard draft in the light of the work of the International Law Commission between 1950 and 1966, and against the text of the Vienna Convention on the Law of Treaties 1969 ("Vienna Convention" or "1969 Convention"). This does, of course, pose a temporal problem: should we not assess the Harvard Convention by reference to the law and practice of the 1930s? Certainly, we should not blame the authors for not foreseeing developments in treaty-making, but to consider their draft as if it were still 1935 would be a somewhat arid exercise. Furthermore, unless it points to a substantive problem, the drafting will not be criticised.
Definition of treaty Arts. 1, 4 and 5 need to be considered together:

Article ]
As the term is used in this Convention: (a) A "treaty" is a formal instrument by which two or more States establish or seek to establish a relation under international law between themselves. (b) The term "treaty" does not include an agreement effected by exchange of notes.
5 However, they may serve a purpose in explaining the various uses to which
treaties are put and their effects. See, the change of mind by McNair from his The Functions and Differing Legal Character of Treaties (1930) 11 B.Y.LL. 100, to his Law of Treaties (2nd ed., 1961), 239 305. 6 See Brierly's First Report in 1950 II I.L.C. Yb. 222, paras. 1 12 (http:// www.un.org/law/ilc/). 7 Unless otherwise indicated expressly or by necessary implication, references to articles are to those of the Harvard draft. Statistics are correct as of August 2006.

(c) The term "treaty" does not include an instrument to which a person other than a State is or may be a party Article 4 The international juridical effect of a treaty is not dependent upon the name given to the instrument. Article 5 (a) Although a treaty, as the term is used in this Convention, must be a formal instrument, no particular form is required. (b) In the absence of agreement upon a procedure which dispenses with the necessity for signature, a treaty must be signed on behalf of each of the States concluding it.
The Vienna Convention boils these three articles down to the simple
definition in art. 2(1)(a):
"treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation
The two definitions are not that different. Given that it took the International Law Commission 16 years to produce their final draft articles, it should not be surprising that their definition is succinct. The Harvard definition does capture the essence of the concept of treaty, but can now be seen to be deficient, and contradictory, in requiring a "formal instrument," even though "no particular form is required." The Comment on art. 1 says that a treaty must be in writing and "formal." That appears to mean that an instrument which lacks certain formalities-no date, signature, seal or indication of where it was made cannot be said to be "formal" and so is outside the definition. So, international agreements concluded by an exchange of telegrams, letters or radio messages, or in the form of minutes 8 or memoranda are excluded. Where the Harvard definition is perhaps most open to criticism is expressly excluding agreements effected by exchange of notes: art.l(b). This is rather surprising, and not just given our more informal times. It cannot be because such agreements were little known in 1935. As the authors acknowledged, they were being
8 See now Qatar v. Bahrain, 1995 1C.J. Rep. 6; 34 I.L.M. 1207 (1995); 102 I.L.R. 1.
Law of Treaties employed for a great variety of international purposes. Indeed, the Comment gave as an example of an agreement which would be excluded, the exchange of telegrams in 1924 between the French Prime Minister and Soviet Foreign Minister recognising the Soviet Government and existing treaties between the two States. Although one of the most common uses of exchanges of notes was to record "understandings" about a treaty, they could also record an entirely new agreement. But, the Harvard authors saw them as "strikingly different in form from a treaty." This suggests that the authors were still wedded to the more formal character of treaties as they had been known in the past and, rather like King Canute and the tide, they did not fully understand that it would be difficult to hold back the advance of treaties drafted in a less formal manner. 9 Yet, only 15 years later, in his first report in 1950, Brierly had no doubt that an international agreement constituted by an exchange of notes was a treaty,' though he was helped by the evidence of the accumulation of practice in the intervening years, including their registration since 1945 under art. 102 of the UN Charter as treaties. Although the Harvard authors did at least accept that a treaty may be typewritten, their approach does seem to reflect a continuing belief that to be a treaty it had to be executed according to certain established procedures. Art. 1(c) excludes also any instrument to which a person other than a State is or may be a party. The purpose was to exclude agreements between one or more States, on the one hand, and a company, on the other. Some of these had been registered with the League of Nations as treaties even though they were clearly not so, and would not be regarded as treaties even in today's more relaxed world. Also excluded were agreements with subdivisions of federal States, overseas territories and indigenous people. Depending on the circumstances, and with the consent of the parent State, some of them can 1 now conclude treaties. 1 The Comment on art. 1(c) does not mention
9 See, 1966 IILL.C. Yb. 173, at 188-189, paras. (1)-(8). To see the ILC Reports
online, go to <http://untreaty.un.org/ilc/guide/1-1.htm>. For the Final Draft Articles on the Law of Treaties and the ILC Commentary on them, see also Watts, The InternationalLaw Commission 1949 1998 (1999), Vol. II, 609 at 619 794. 10 195011 I.L.C. Yb. 222, at 229, para. 33. " See Aust, Modern Treaty Law and Practice(2nd ed. 2007), Chap. 4.
Harvard Research on International Law international organisations. Although several existed in 1935, they were not the serious players on the international scene which they were to become after the Second World War. Brierly's first draft therefore includes treaties with or between international organisations, though later they were effectively excluded from the Vienna Convention and did not have their own convention until 1986, though it is still not in force (see below). Arts. 4 and 5(a) are basically right: a treaty is a treaty whatever you call it and whatever its form, and was largely based on a study of the nearly 3,600 treaties which, by then, had been registered with the League of Nations. 12 Eventually, the League registered 4,834 treaties. Interestingly, there is no mention of that misleading name still given to too many treaties: "Memorandum of Understanding." It would therefore seem that it might not have been used much until some years later. 13 The essence of this recognition of the variety of forms which treaties can take came to be expressed more subtly in the Vienna definition of "treaty." Art. 5(b) on signature is rather better, and more elaborately articulated, in Vienna arts. 11 and 12, but is otherwise unexceptional. The Harvard definition is spot on in excluding from the definition of treaty instruments not "under international law." This equates to the phrase "governed by international law" in the Vienna definition. Thus, there can be a treaty about the lease of land for an embassy, and 14 under it a lease executed in accordance with the local land law. Ratification and accession Art. 6(b) provides that a treaty may designate the State organ which must ratify it, but if the treaty does not, ratification can be done by "any authorised organ of the State." In contrast, Vienna arts. 2(1)(b) and 7 provide that ratification is done by the State and that, by virtue of their functions, Heads of State, Heads of Government and Ministers of Foreign Affairs can perform "all acts relating to the conclusion of a treaty" (which of course includes giving consent to be bound) without producing full powers. Interestingly, in contrast to
Supra n. 1, 710 732. Aust, supra n. 11, 25 27. 14 See the Russia-UK Agreements on Leases of New Embassy Premises 1996,
12
13
1967 U.N.TS. 142; UKTS. (1997)1 and 2.
Law of Treaties Vienna art. 7, the Harvard draft mentions full powers only-and indirectly-in art. 7(b)). Compared with Vienna arts. 11-17, Harvard arts. 6,7, 8 and 12 are simpler and rather unsophisticated, being based on practice at the time, though it was still developing. The Harvard draft reflects the more rigid view of the role of giving consent to be bound, particularly for accession. Given Harvard's rather narrow view of what constituted a treaty a formal document which is usually signed and then ratified perhaps that is not so surprising. The 17 pages of Comment on art. 6 have a long discussion on whether ratification amounts to approval of the signature of the treaty or of its text, and comes down in favour of the latter. This shows that, even in 1935, such perplexing issues were not yet quite settled. The provisions in art. 12 on accession reflect what by 1950 had become an outmoded concept. Although the article acknowledges that a treaty may provide otherwise, it states as a general principle that accession can be done only after the treaty has entered into force, and then only with the consent of all the parties to the treaty. At the time, the option of accession was usually restricted in this way. The Comment sees the exceptions to the principle, such as in the General Act for the Pacific Settlement of International Disputes 1928 5 or the International Convention for the Suppression of Counterfeiting Currency 1929,16 as "still somewhat unusual," rather than as an increasing trend. The Comment also sees the exceptions as in conflict with the "fundamental theoretical [reason]" why treaties are not open to accession until they are in force, it being only then that an invitation to accede can be effective-which shows a lack of imagination. This is all very different to Vienna art. 2(1)(b) which lists accession together with ratification, acceptance and approval, as the international act whereby a State establishes on the international plane its consent to be bound. Although Vienna art. 15 treats accession separately from ratification, acceptance and approval, that does not affect its legal character, or limit it to treaties which are already in force, or make accession subject to the consent of all the parties. This reflects developments in practice, and in particular the rise in univer15 93
L.N.T.S. 343; UK.T.S. (1931) 32 (arts. 43 and 44). The Comment sees the
chief reason for the "unusual" [sic] provision as a desire to avoid the "all-toofrequent tendency of States to sign treaties without following up signature with ratification": Plus a change: Aust, supra n. 11, 103-104. 16112 L.N.T.S. 371 (art. 25).
Harvard Research on International Law sal, so-called law-making, treaties adopted within or under the auspices of the United Nations from the late 1940s. 17 It is therefore somewhat surprising that in Brierly's first draft of 1950, art. 7, is similar to the Harvard text, though this would change as more evidence was gathered. Obligation of a signatoryprior to the coming into force of a treaty Art. 9 reads:
Unless otherwise provided in the treaty itself, a State on behalf of which a treaty has been signed is under no duty to perform the obligations stipulated, prior to the coming into force of the treaty with respect to that State; under some circumstances, however, good faith may require that pending the coming into force of the treaty the State shall, for a reasonable time after signature, refrain from taking action which would render
performance by any party of the obligations stipulated impossible or
more difficult.
Here we have the germ of what would become the celebrated Vienna art. 18 (obligation not to defeat the object and purpose of a treaty prior to its entry into force). Although the element of good faith is not expressly mentioned in that provision, it clearly underlies the concept. Art. 18 falls back on the now familiar, but hazy, concept of the object and purpose of a treaty. The unsatisfactory result, though avidly grasped by desperate students, 8 is no advance on the Harvard formulation. The only notable example of the principle in art. 18 being used was when the United States "un-signed" the Rome Statute of the International Criminal Court 1998. Then Mr. Bolton notified the Depositary (the UN Secretary-General) that the United States did not intend becoming a party and, accordingly, it had no legal obligations arising from its signature. 19 Yet, despite this dramatic example,
See for example, arts. XI and XIII of the Genocide Convention 1948 (78
17
UNTS. 277; U.K.TS. (1970) 58); and arts. 39 and 43 of the Refugee Convention 1951 (189 UNTS. 137; UK.T.S. (1954) 39). 18 See Aust, supra n. 11, 117 119.
19 See <http://untreaty.un.org/English/access.asp> Status of Multilateral Treaties deposited with the Secretary-General, Chap. XVIII.10, note to US entry. Since the US is not party to the Vienna Convention, it presumably considers that art. 18 may represent customary international law.
Law of Treaties it must be doubted whether art. 18 serves any really useful purpose, except to test students. Reservations Arts. 13 to 16 deal with reservations. They reflect the clear basic rule which then prevailed: a reservation required the unanimous consent of the contracting parties. Article 13 defines reservation. Although the wording differs from Vienna art. 2(1)(d), it reflects the same essential concept. The lengthy Comment on the article notes that, although some treaties already had express provisions to prevent or limit reservations to them, "the possibility of making reservations to treaties seems to be unchecked" and "the practice of making them has far from disappeared." It then states that the purpose of arts. 13 to 16 is to "lay down rules which will regulate that practice," yet without encouraging the making of "unnecessary" reservations. The articles need to be read in that light: the authors were not only stating what they thought to be lex lata, but also a bit of lexferenda. Several pages are devoted to U.S. constitutional practice going back to Thomas Jefferson in 1801. The Vienna Convention does not draw a distinction between reservations to multilateral treaties and bilateral treaties, and nor does Harvard art. 13, though the Comment on it makes the good point that the effect of the other contracting party to a bilateral treaty agreeing to the reservation is to amend the treaty, and that if the other party will not agree to the reservation, but the reserving State insists on it, there can be no 0 2 treaty. Arts. 13 to 16 illustrate the problem facing the authors which, with the benefit of hindsight, becomes all too clear: on this subject practice was still developing. Writing in 1961, McNair pointed out that since the 1930s there had been an increase in the practice of making reservations, and in the previous 50 years there had been many more multilateral treaties. 21 This fact influenced not only the International Law Commission and the Vienna Conference, but had earlier been reflected in the International Court of Justice's 1951 advisory opinion on Reservations to the Convention on the Prevention and Punishment
20 See Aust, supra n. 11, 131 132.

21
See McNair, Law of Treaties (2nd ed. 1961), 158-177.

22 of the Crime of Genocide. That the opinion was controversial is amply demonstrated by the fact that the judges were split almost evenly, seven to five. Of the two dissenting opinions (one by Alvarez and the other by Guerrero, Hsu Mo, McNair and Read), McNair described the latter as representing the "traditional" view. 23 In contrast, the opinion adopted the new test of "admissibility." Instead of the traditional one of unanimous consent, the Court substituted the objective requirement that to be legally effective a reservation had to be "compatible with the object and purpose" of the Genocide Convention. Understandably, McNair emphasised that the opinion was founded on the "special characteristics" of the Genocide Convention,2 4 and that UN General Assembly Resolution of 195225 requested the Secretary-General to conform his practice to that of the opinion only in respect of the Genocide Convention; in the case of other conventions, he was to leave it to each State to draw the legal consequences of any reservation or objection. McNair stood firmly behind the principle that no reservation is valid unless either it complies with any special provisions on reservations which are in the treaty or it has received the assent of the parties. This was despite not only the increase in the number of multilateral treaties, but also their lawmaking and regulatory character, the complexity of international life and the corresponding increase in the number of topics requiring international regulation, as well as the increasing number of possible contracting parties to multilateral treaties. And he was writing just as the era of decolonisation was about to get really underway. The problem was to find a solution which would encourage and make it easier for States to become parties to universal treaties, yet without destroying the essential uniformity of treaty obligations or violating the principle of consent as the basis of those obligations. McNair saw no problem with "minor" reservations which would not impair the value of the treaty, since in that case it was unlikely that any States would object. Nevertheless, the advisory opinion influenced the general development of the law which eventually produced
1951 LC.J. Rep. 15; 18 I.L.R. 364. McNair, supra n. 21, 165. 24 Ibid., 166 168. 25 G.A. Res. 598(VI) of 12 January.
22
23
Law of Treaties Vienna articles 19 to 23, with their less than satisfactory provisions, even if they have given commentators endless hours of enjoyment and produced abundant literature, particularly on the problem of reservations to human rights treaties. Yet, even in the 1930s, the requirement for unanimous consent was not absolute. Arts. 14, 15 and 16 reflect the then-accepted principle that a State can make an effective reservation only if all the other States which are parties to the treaty (or which as signatories are likely to become parties) consent to the reservation. This rule gave preference to the existing parties and signatories who are satisfied with the treaty as it stood. If they objected to the reservation, and the reserving State was unwilling to become a party without the reservetion, then it just could not be a party.26 But, the consent did not have to be explicit. It was sufficient if the reservation was communicated to the other parties or signatories, and they did not formally reject it, that is, they tacitly accepted it. It would seem after a certain (unspecified) period silence would be deemed to be consent. But if only one State objected (and would not withdraw the objection), the reserving State could not become a party. Although this strict rule might have been understandable at the time, it did not make any allowance for reservations which would not seriously affect the obligations under the treaty. Most reservations are of that type. This was recognised by the International Law Commission in its final draft art.17(4)(b) which provided that an objection precludes the entry into force of the treaty between the objecting and reserving States, unless the objecting State says otherwise. In what became art. 20(4)(b), the Vienna Conference reversed the rule so that the objection would not preclude entry into force of the treaty between the objecting and reserving States, unless a contrary intention is "definitely" expressed by the objecting State. It is doubtful if this made any material change, and had the useful advantage of putting the onus on objecting states to decide what to do. Treaties and third states The law on when treaty rights and obligations bind third States was very well established by 1935. Harvard art. 18 is in substance the If a signatory had decided not to become a party, the authors thought that in practice it would not object to the reservation. They were probably right.
16
Harvard Research on International Law same as Vienna arts. 34 to 36, except that it does not provide, as does Vienna art. 35, that a third State is only bound by an obligation which it has expressly accepted in writing. However, this is implicit. Interpretation The 33 pages of Comment show the importance that the authors rightly gave to this issue. They also contain a good survey of the many and varied views on the matter. Since 1935 much ink has been spilt, and continues to be spilt, on the matter, despite the International Court of Justice having long taken the eminently sensible approach that Vienna art. 31 says all that needs to be said, and can be used to interpret treaties concluded over a century ago.2 Harvard art. 19 has as its principal rule that one must interpret a treaty "in the light of the general purpose which it is intended to serve." It then lists some of the factors which have also to be considered: historical background, travaux, the parties' circumstances, changes which were sought to be effected and subsequent conduct. Thus, not surprisingly, the Harvard approach differs from the Vienna rule. The latter emphasises "the ordinary meaning to be given to the terms of the treaty in their context" (which includes subsequent agreements and practice) and "in the light of its object and purpose." This reflects the "cardinal rule" of the Permanent Court of International Justice 28 that words must be interpreted in the sense which they normally have in their context, unless such interpretation would lead to something unreasonable or absurd, this latter leg of the rule being found in Vienna art. 32 (b). The authors were acutely aware of the danger of prescribing "hard and fast rules," not least because treaty drafters cannot foresee all possible situations, and the task is then to find a reasonable interpretation which accords with the purpose of the treaty. Although the (American) authors quoted extensively from judgments and advisory opinions of the Permanent Court, by placing rather more importance to finding out the "purpose" of the treaty, they may have, albeit unconsciously, followed the more teleological approach taken by U.S. courts in interpreting its domestic legislation.
Kasikili/Sedudu Island (Botswana/Namibia) 1999 LC.J Rep. 1045, para. 18; 39 I.L.M. 310 at 320 (2000). 28 Polish Postal Service in Danzig Advisory Opinion, P. C.I.J., Series B, No. 11,
27
39; 6 A.D. 47.
Law of Treaties Harvard art. 19(b) embodies the same basic rule as Vienna art. 33, that when a treaty is in two or more of languages, and none is stated to prevail, one must seek to find a common meaning which reflects the general purpose. Effect of governmental changes Art. 24 states the useful (if obvious) 29 rule that, unless the treaty provides otherwise, any change of a State's government or constitution does not affect the treaty obligations of the State. The Vienna Convention does not have a specific provision to this effect. Instead, the point has to be inferred from its terms which clearly speaks throughout of treaties being binding on States: see, for example, the definition of "party" in art. 2(g), and arts. 26 and 27. It is a pity that something was not put into the Vienna Convention. At the very least, it would have been useful for a foreign ministry legal adviser to show a sceptical and lay minister of a new government.
Effect of war
Art. 35 confirms that a treaty which is meant to apply in time of war between the parties applies during the war and, unless it provides otherwise, a treaty which "by reason of its nature and purpose was not manifestly intended by the parties to be operative in time of war" between the parties, is suspended during the war. The Comment runs to 20 pages. Regrettably, the topic is not covered in the Vienna Convention (see art. 73), the International Law Commission having considered, rather primly, in 1966, that in the international law of today the outbreak of hostilities between States must be considered as an entirely abnormal condition, and that the rules
governing its legal consequences should not be regarded as forming part between States.
of the general rules of international law applicable in the normal relations 0 3
There have been numerous international armed conflicts since 1945, and although their legal effect on treaties is important, this may well have been a convenient way for the Commission to dodge the
29 See McNair, supra n. 21, 668 672.
30
Commentary of the ILC on draft Art. 69, para. (2).
Harvard Research on International Law issue, though it is a pity that it did not try to build on the work done by Harvard. It may well be that, during the Cold War, the subject was just too hot to handle. The only comprehensive treatment of the subject (at least in English) is now out of date. 31 Although it was written over 40 years ago, McNair's fairly detailed treatment of the topic is one starting point: 32 armed conflict between parties to a treaty does not per se terminate the treaty as between them, but exactly which treaties may be affected, and in what manner, is uncertain. Basing himself mainly on British cases and practice, McNair saw the issue as turning upon the nature and purpose of each treaty, since that was a good indication of the presumed intention of the parties. He noted that, historically, treaties were assumed to be abrogated by the outbreak of an armed conflict between the parties. But, he put forward a "modem" approach in which he identified certain categories of treaties and the effect of an armed conflict between the parties. For the moment, the matter is still governed by customary international law, except in so far as a particular treaty, expressly or by necessary implication, envisages the effect of an armed conflict on its provisions. It is therefore fitting that with the end of the Cold War though with international armed conflict (whether lawful or not) still very much still with us the International Law Commission should have embarked on a study of the subject. One can only hope that Professor Brownlie, appointed by the International Law Commission in 2004 as Special Rapporteur, will be successful in tying up this loose end left dangling by the Commission over 40 years ago. At least, there is enough state practice to examine. Effect of severance of diplomatic relations Art. 25 is in substance the same as Vienna Art. 63.
31
Oppenheim, InternationalLaw (7th ed.), Vol. II (War and Neutrality), para. See also McNair, supra n. 21, 693 728; Connell, InternationalLaw (2nd ed.
99.
32
1970), 268 271. Oppenheim's InternationalLaw, 9th ed. 1992), Vol. 1, 1310 says that the effect of war on treaties will be dealt with in volume II, which will be a revision the 7th edition of that volume (see previous note).
Law of Treaties
Rebus sic stantibus

Art. 28 is much less detailed that Vienna Art. 62 (Fundamental change of circumstances). The Harvard authors were well aware of the controversial nature of the doctrine. Art. 28 therefore provided for "an international tribunal or authority" to declare that the doctrine applied in any particular case, though a party seeking a declaration could provisionally suspend performance of its obligations under the treaty pending agreement on a competent tribunal or authority, and its decision. Similar, but more elaborate, provisions are found in the rather moribund Vienna arts. 65 68. The Harvard draft does not have an equivalent of Vienna art. 61 (supervening impossibility of performance).
Invalidity
The Harvard text has three provisions on invalidity: arts. 29 (mutual error), 31 (fraud) and 32 (duress). In contrast, the Vienna Convention has five more (arts. 46 (internal law), 47 (restrictions on authority), 50 (corruption of representative), 52 (coercion of a State) and 53 (jus cogens)). I have already questioned the amount written on 33 the subject of invalidity, since it has very little practical importance. But this has not stopped the topic figuring large on syllabuses. I therefore prefer the Harvard treatment, less being more.
Registrationand publication
Art. 17 takes as its starting point the familiar rule in art. 18 of the Covenant of the League of Nations, that "[e]very treaty or international engagement" entered into by any member of the League shall be forthwith registered with the Secretariat, and shall not be binding until so registered. But, given that there had been doubt whether the quoted formula covered all treaties, paragraph (b) provided that treaties not required to be registered will not be binding until registered or published officially. This reflects the Harvard authors' belief that the term "treaty" did not include all international agreements, as well as treaties between non-Members of the League and between them and Members. The authors admit that the paragraph was drafted de legeferenda, and that its purpose was to erect an extra
33 Aust, supra n. 11, Chap. 17.
Harvard Research on International Law barrier against so-called secret treaties. Yet, the less stringent rule of art. 102 of the U.N. Charter has not stopped the relentless rise of the non-binding international instrument (MOU). 3 4 It does not seem that any registration rule could ever meet Wilsonian concerns.
The Harvard Research and the International Law Commission

The report of the Harvard project on the Law of Treaties is, of course, a mine for scholars interested in how international law developed in the inter-war period. It is an invaluable account of differing views at the time. But, as a starting point one needs to emphasise that, as in the case of domestic law, international law is a very practical subject. Although this may be a rather obvious statement, it can be rather overlooked in the heady atmosphere of law libraries and international courtrooms. Some areas of international law are more practical than others, in the sense that they form part of the day-to-day practice of international law practitioners, particularly those working in foreign ministries and international organisations. The law of treaties is intensely practical. It is mostly not about treaty interpretation. Most problems are considered and resolved without having to go to international or national courts and tribunals. But, every day States draft, negotiate, sign, ratify, register, interpret, amend and terminate treaties. Knowing clearly what practitioners in fact do, and what they want by way of rules, is essential to any work of codification. The Harvard draft was an attempt at codifying the essential principles and rules of the law of treaties, but it was deficient in certain important respects. When embarking on codification one needs to take one's time, though not necessarily the 40 years it took the International Law Commission to produce final draft articles on state responsibility. As the General Introduction to the Research in International Law (Phase III) says, the Harvard project states the views of a group of Americans concerning subjects which may be considered in connection with the codification of international law. In other words, it was never meant to be a codification exercise as such. Although it also says the work was the result of "thorough consulta34
Ibid., 20-21 and Chap. 3.
Law of Treaties tion," it qualifies this by also making clear that the draft was completed "within the limits of a rigorous time-schedule, by men already burdened with exacting duties; and these facts should be borne in mind in any appraisal of the work done. 35 In contrast, the International Law Commission took 16 years trying to codify the law of treaties. Even though this may have been longer than strictly necessary due partly to having had four Special Rapporteurs in succession it did allow for more evidence of practice (and its evolution) to be collected and thoroughly assessed. The thinking of the Special Rapporteurs and the members of the Commission could also mature, aided by the comments of the customers, the Members of the United Nations. Such comments were almost exclusively the work of the main practitioners in treaties: foreign ministry legal advisers. Finally the Commission's final draft articles were scrutinised again thoroughly by the customers at two sessions of the Vienna Conference in 1968 and 1969. One cannot stress too much the need to involve the customers. For they know how the law of treaties works in practice. It is no good devising a rule (especially a rigid rule) which may seem logical and right, if those who work with treaties every day do not recognise or want it. The Vienna Convention acknowledges in 35 of its articles that States will inevitably want to depart from the Convention's rules.36 The rules are thus largely residual, leaving treaty practice very much in the hands of States-as it should be. The Convention is well capable of coping with the demands of the twenty-first century. For practitioners, it is their "bible." Although the Harvard authors were assisted by 11 academics and 7 practitioners, given the short length of time they were given, and despite the impressive scholarship, there does not seem to have been quite enough input from practitioners. More important, however, is the perspective of the study. Although its quotes many foreign scholars, including some foreign ministry lawyers, the study was essentially non-public; the views of States were not sought directly. In contrast, the International Law Commission has to report each year to the U.N. General Assembly on
35
Supra n. 1, 7 8.
36
See arts. 7(1)(b), 9(2), 10(a), 11, 12(1)(b), 13, 14(1)(b), 15, 16, 17(1), 20(1), (3)
and (4)(b), 22, 24, 25, 28, 29, 33(1) and (2), 36(1), 37(1), 39, 40, 41, 44(1), 55 60, 70(1), 72(1), 76 78 and 79(1).
Harvard Research on International Law its work during the preceding year; and the report is considered and debated in the Sixth (legal) Committee by legal advisers of the Member States. This two-way exchange of ideas means that the customer is able to see and comment on the work as it progresses. It does not mean that the final draft articles will not be amended by the Sixth Committee or at a plenipotentiary conference convened to discuss and finalise them, as happened with the Vienna Convention. But it does mean that the preliminary work will have a better chance of being accepted as an accurate and useable statement of customary international law, and thus a sound basis for the eventual adoption of a convention. Another advantage which the 38 members of the International Law Commission have is that they are part of an international, not a national, body. This is important, and not only now when virtually every State is a Member of the United Nations. Even in the 1930s, States were diverse. Quite apart from the 17 Latin American States, the 63 States which were members of the League of Nations (though some later withdrew for various reasons) included nine other non-European States (Afghanistan, China, Egypt, Ethiopia, India, Iraq, Japan, Persia and Siam). It may not have been as diverse as the United Nations was to become, but, even in those days, the League did not reflect just a Western approach to the law of treaties. A drawback of the Harvard draft was its rather national approach. When considering codification of customary international law, one needs also to get the timing right, which involves a large element of luck. If the task is left too late, the work will not have the same influence on thinking and practice as if it were done at a time when the law is almost ripe for codification. But, if done too soon, it is more likely that the work will not find general acceptance. The four 1958 Geneva Conventions on Law of the Sea were based on International Law Commission's final draft articles, submitted in 1956 after six years work. 3 7 The fact that they had to be, in effect, renegotiated only 15 years later (and over a 10 year period), and were then effectively replaced in 1982 by the UN Convention on the Law of the Sea, 38 shows that timing is everything. 39 But the Harvard authors
37 Watts, supra n. 9, Vol. 1, 23 137.

38
1833 U.N.T.S. 397; 17LL.M. 1261 (1982); U.KT.S. (1999) 81.
Law of Treaties should not be blamed for not foreseeing developments, any more than that they should be criticised for not predicting the rise of Hitler, the Second World War or the establishment of the United Nations. In the 1920s, some forecast correctly what would happen, but most did not. Yet the work of the International Law Commission has not been an unalloyed success. 40 The International Law Commission came spectacularly unstuck with its final draft articles on Succession of States in respect of Treaties and on the Law of Treaties between States and International Organisations or between International Organisations. Although they were, with few material changes, adopted as Conventions in 197841 and 198642 respectively, both have been failures. Given the subject matter, there was no question of the Vienna Convention on Succession of States in respect of Treaties 1978 being based on the 1969 Convention. Most articles were adopted by separate votes, and the Convention did not enter into force until nearly 18 years later when it achieved the necessary 15 ratifications. Today, it has but 20 parties. Its entry into force was possible only because between 1991 and 1996 Bosnia and Herzegovina, Croatia, Estonia, Slovakia, Slovenia, Macedonia and Ukraine acceded or succeeded to it. Not surprisingly, being new States they thought it might be useful to them.4 3 The final draft articles raised controversial issues and a second session of the Vienna Conference had to be held. The International Law Commission had noted that state practice indicated no general doctrine which resolved the various problems of succession to treaties, and that the number of different theories of succession did not make the task any easier. As a result, the Convention contains
39 And, even then, it needed the adoption of the Implementation Agreement
1994 (1836 U.N.TS. 42; 33 I.L.M. 1309 (1994); U.K.T.S. (1999) 82) before Western States could be induced to become parties. 40 Much of the rest of this chapter is drawn on Aust, Limping Treaties: Lessons from Multilateral Treaty-Making'(2003) N.I.L.R. 243-266. 41 1946 U.N.T.S. 3; 17 IL.M. 1488 (1978); Watts, supra n. 9, Vol. II, 987-1208. 42 25 LL.M. 543 (1986); Watts, supra n. 8, Vol. II, 825-986. 43 Estonia is included in the category of new State even though it resumed its previous statehood. Since it was for 50 years defacto part of the Soviet Union, it had to resolve succession problems of some novelty. Although Ukraine was a Member of the United Nations from the beginning, and party to many treaties while still part of the Soviet Union, it also had special succession problems: see Aust, supra n. 11,376 378.
Harvard Research on International Law much that is progressive development of international law. When the Commission was developing its draft (in the relatively short space of seven years), the most recent state practice related to former colonies and was not consistent. Consequently, those rules of the Convention which are concerned with newly independent States are excessively complex. They also give undue prominence to the so-called clean slate principle, and not adequate weight to the abundant state practice of concluding devolution agreements or, even more important, making declarations of succession. Moreover, decolonisation was almost at its end by 1978, and, unless a successor State agrees otherwise, the Convention does not apply to a succession of States which occurs before its entry into force (6 November 1996). Nor did the Convention rules about the break-up of States reflect modem State practice, though admittedly at the time there was little on which to draw. Although the Convention is an example of progressive development of international law, and is not therefore a reliable guide to the rules of customary law on treaty succession, such as there are, its entry into force (albeit late), practice following the end of the Cold War, and decisions of the International Court of Justice, may now have breathed a little life into some of its provisions. But that is unlikely to result in a sudden flood of accessions. The Convention may remain little more than an interesting historical document. Although parts of the Convention may have been relied upon in drafting certain bilateral succession agreements, 44 its influence and practical value will continue to be considerably less than that of the 1969 Convention. The Vienna Convention on Law of Treaties between States and International Organisations or between International Organisations 1986 has still not yet entered into force, although that needs only 35 States to ratify. International organisations can become parties, and the United Nations and 11 other international organisations have ratified, being mostly UN specialised agencies, though not all of them. International organisations do not count for entry into force, and 20 years on only 28 States have ratified. The Convention follows the 1969 Convention very closely. Indeed, until Article 73, the topics it covers are the same as in the 1969 Convention. This is hardly
44
See, for example, Succession of States in Respect of Treaties, 89 Am. J. Int'l
L. 761 761 (1995).
Law of Treaties surprising since, as the International Law Commission acknowledged, the relationship between the two topics was extremely close; it therefore took each of the articles of the 1969 Convention and made only those changes that were necessary to accommodate the slightly different situation and needs of international organisations. In fact, the Convention is even closer to the text of the 1969 Convention than was the Commission's draft. This is almost certainly the principal reason why the great majority of States have been reluctant to become parties. If the substantive rules are the same for all treaties, there would seem to be little point in making the effort to become a party, especially if the domestic process involves seeking the approval of the legislature. No State concludes that many treaties with international organisations, but when it does it can easily be guided by the organisation and, if necessary by the Convention, as to any different rules or practices that apply when dealing with an international organisation. The Convention was a worthy attempt at making the law of treaties more comprehensive, but it did not meet a real need, and could as well have been expressed as guidance rather than as a convention. The International Law Commission has also produced final draft articles on other areas of international law, yet some of the resulting conventions have also been spectacular failures. After nearly 25 years, the Vienna Convention Succession of States in respect of State Property, Archives and Debts 198345 has yet to get to its feet. It requires only 15 parties to enter into force. Seven States acceded between 1991 to 2005: Croatia, Estonia, Georgia, Liberia, Macedonia, Slovenia and Ukraine. Most presumably saw the Convention as germane to the settlement their own succession issues, but only three of the former republics of the Socialist Federal Republic of Yugoslavia (SFRY) thought it worth joining. The Agreement on Succession Issues 2001 between the former republics of Yugoslavia makes no mention of the 1983 Convention.46 As with the final draft articles produced by the International Law Commission, the 1983 Convention contained provisions representing progressive development of international law. It thus neither reflected customary law, nor made new law that would be generally acceptable.
45 22 I.L.M. 298 (1983); Watts, supra n. 9, Vol. 11, 1209. 46 2262 U.N. T.S. 253; 41 LL.M. 3 (2002); www.ohr.int/succession.html.
Harvard Research on International Law The fact that the conference took place during the Cold War may not have been a major factor. The draft was just not good enough. It may be that the subject is just not amenable to prescriptive treatment. As with succession to bilateral treaties, it may be something that has to be dealt with more on a case-by-case basis. 47 These weaknesses were evident at the six-week Vienna Conference-which was not able to improve much on the draft and where it was adopted by a vote of 54 for, 11 against, and 11 abstentions. The Convention on Special Missions 196948 did not enter into force until 1985 when it received the necessary 22 ratifications, but even now it has only 37 parties. This is only because in the 1990s, in a bout of post-independence enthusiasm, 11 former republics of the Soviet Union or Yugoslavia ratified it. The Convention applies to temporary missions sent by one State to another, with its consent, for the purpose of dealing with it on specific questions or performing in relation to it a specific task (art. l(a)). 4 9 Although the permanent diplomatic mission is still the cornerstone of diplomatic relations, special missions are an essential supplement. In preparing the draft articles, the International Law Commission drew copiously on the Vienna Convention on Diplomatic Relations 1961. The final draft articles were submitted to the General Assembly in 1967, and the Convention was adopted without much difficulty in 1969. The Convention does not depart much from the Commission's draft. This means that the scale of privileges and immunities of special missions and their members are almost identical to those of permanent diplomatic missions. Yet, because members of special missions generally live in hotels, stay for only a few days or weeks, and do not bring their families, they do not have to cope with the problems of permanent missions; nor do they cause the same problems for the host State as permanent missions. Therefore conferring on special missions the same scale of privileges and immunities is difficult to justify.
47
Aust, supra n. 11,372-383. 1410 U.N.T.S. 231. This formulation ignores the practice of two or more States sending temporary missions to meet on the "neutral" territory of a third State. When they are at Head of State level customary international law may well accord members
48 49
sufficient immunity, but when they are at official level there may be doubt
whether they enjoy any immunity, apart perhaps for their official acts.
Law of Treaties After over 30 years, the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character 197550 has only 32 of the 35 parties needed to bring it into force. No western States (apart from a few former communist states), or host States to major international organisations, are parties. The Convention provides for the relations between States and international organisations of a universal character (those whose membership and responsibilities are worldwide), and to the representation of States at conferences convened by or under the auspices of such organisations. In particular, the Convention lays down a scale of privileges and immunities for permanent missions of States to such organisations, and for delegations to their conferences. The Convention was first drafted by the International Law Commission. Even though the position of delegates to international conferences (like members of special missions) is very different to that of members of a permanent diplomatic mission, the draft followed closely the Vienna Convention on Diplomatic Relations 1961, as well as the Special Missions Convention 1969, which, as we have seen, had itself been modelled on the 1961 Convention. For instance, art. 60(1) of the draft convention provided that the "private accommodation" of a member of the diplomatic staff of a delegation to a conference enjoyed inviolability. The Commission's commentary explained that this had been based on art. 30 of the Special Missions Convention, and that private accommodation included even hotel rooms. The provision was essentially unchanged in art. 59 of the Convention, and is just one example of the scale of privileges and immunities laid down in the Convention that goes further than that in, for example, the Convention on the Privileges and Immunities of the United Nations 51 as well as similar treaties of other universal international and regional organisations. It illustrates how, in those days, the Commission sometimes adopted a rather mechanistic approach, borrowing formulas from other conventions without properly considering whether they would fit a different situation. This may have been partly, or largely, due to the problem of reaching a consensus among the members of the Commission during the Cold War.
50 Watts, supra n. 9, Vol. 1, 449 et seq.
51 1 U.N.T.S. 15.
Harvard Research on International Law The Convention was negotiated at a six-week U.N. conference in Vienna. The flawed approach of the Commission was seized on by the communist States of the Eastern Bloc and supported by most developing States. For various reasons, they were keen to have maximum privileges and immunities, and since the Eastern Bloc numbered 11 and the developing States about 97, they were easily able to outvote the two dozen States of the Western European and Others Group (WEOG). In those days, it was the practice at U.N. conferences to vote on nearly everything. No attempt was made to seek consensus. As a result, much of the substance was unacceptable to WEOG. And since most international organizations of a universal character had their headquarters, and most of their meetings, in Western States, those States have not ratified, or even signed, the Convention. The existing treaties on the privileges and immunities of those organisations and of persons connected with them (which treaties are preserved by art. 4(a)), are regarded as sufficient, and good models for future agreements. The supporters of the text therefore achieved a pyrrhic victory. The Convention may be seen as an intriguing leftover from the Cold War.5 2 All international lawyers see the Vienna Convention on the Law of Treaties 1969 as a cornerstone of modem international law. Yet, in contrast to other successful codification conventions, after nearly 40 years it has still only 107 parties. That other most successful treaty, the Vienna Convention on Diplomatic Relations 196153 has no less than 184 parties. Both deal with matters which have been essential to the conduct of international relations for centuries.54 The over 80 States that have not yet become parties to the 1969 Vienna Convention include Brazil, France, India, Indonesia, Iraq, Iran, Ireland, Israel, Kenya, Libya, Malta, Norway, Pakistan, Romania, Singapore, South Africa, Sri Lanka, Thailand, Turkey, Uganda, the United States, Venezuela and Zimbabwe. Although some may have a particular objection, the list of non-parties includes States large and small, developed and developing. There being no obvious common link
The present author was a junior member of the UK delegation. Otherwise, the six-week conference was great fun.
52
53
54 See Watts,
500 UNTS 95 (No. 7310); UKTS (1965) 19. supra n. 9, Vol. II, 609 et seq.
Law of Treaties between them, we have to look elsewhere for why they are not parties. It has been suggested that the reason is the progressive elements. At first, the Convention was regarded with some suspicion. It follows closely the final draft articles prepared by the International Law Commission, 55 and the Commission's Commentary says that some parts represented progressive development. Sinclair, who was at the Vienna Conference, suggests that the following represented, at least in some measure, progressive development: art. 9(2), on the majority needed to adopt a treaty at an international conference; arts.19 to 23, on reservations; arts. 40 and 41, on the amendment and modification inter se of multilateral treaties; and some provisions of Part V on 56 invalidity, in particular jus cogens. But these few articles are not 57 It is difficult to believe that progressive elements have core articles. prevented so many States from joining the Convention. Any lingering doubts that they might have could be adequately dealt with by interpretative declarations or reservations. The practical importance for all States of a clear statement of the rules governing the making and operation of treaties should have been enough to commend the Convention to most foreign ministries. On the other hand, the reason the number of parties is still surprisingly low may well be that the Convention is simply a victim of its own success. Almost before signatures were dry on the Final Act of the Vienna Conference, States were referring to the Convention as an authoritative statement of the law of treaties. This was so even though the Convention took 11 years to enter into force, and was irrespective of whether a State invoking the Convention had ratified it, or not. France and the United States, neither of which is yet a party, refer to the Convention in treaty disputes. This has of course happened before. Although many provisions of the UN Convention on the Law of the Sea 1982 (UNCLOS) went beyond mere codification, during the 12 years before it entered into force in 1994, most of
5
56
See 8 LL.M. 714 (1969) for a comparative table of draft and adopted articles.
Sinclair, The Vienna Convention on the Law of Treaties (2nd ed. 1984), 12 See, for example, Gardner (ed.), Human Rights as General Norms and a
18.
57
State's Right to Opt Out' (1997).
Harvard Research on International Law its provisions came to be accepted as reflecting customary law.58 Given the need for common rules on the subject, this was important since even now UNCLOS has but 149 parties. Whether a particular rule in the Vienna Convention represents customary international law is only likely to be an issue if the matter is litigated, and the court or tribunal will take the Convention as its starting and normally also its finishing point. This is the eminently realistic approach taken by the International Court of Justice, as well as by other courts and tribunals, international and national.59 In its 1997 Gabcikovo judgment (in which the principal treaty at issue predated the entry into force of the Convention for the parties to the case) the Court brushed aside the question of the possible nonapplicability of the Convention's rules on questions of termination and suspension of treaties, and applied arts. 60 to 62 as reflecting customary law, even though they had once been considered rather 60 controversial. Given previous similar pronouncements by the Court, and mentioned in that judgment, it is reasonable to assume that the Court will take the same approach in respect of virtually all of the substantive provisions of the Convention. For example, in its 1999 judgment in 6 Kasikili/Sedudu Island (Botswana Namibia) 1 the Court interpreted an Anglo-German treaty of 1890 by applying art. 31 of the Convention, noting that neither State was a party to the Convention but that both accepted that the article reflected customary international law. The Court referred also to previous judgments where it had held that customary international law found expression in that article, something that Queen Victoria and Kaiser Wilhelm would have found surprising if they could have foreseen the intense 20th century debate on what the rules of treaty interpretation should be.
58
See Treves, Codification du droit international et pratique des Etats dans le
droit de la mer, (1990) 223 Recueil des Cours), 25-60; Caminos and. Molitor, Progressive Development of International Law and the Package Deal, 79 Am. J Int'l L. 871-890 (1985). See also, Bos and Siblesz (eds.), Realism in Law-
Making (1986), 211-229 (Sinclair) and 231-246 (Sohn).
59 Numerous examples, particularly concerning Articles 31 and 32 (Interpreta-
tion) are to be found in International Law Reports (see the lengthy entry in the
ILR Consolidated Table of Cases and Treaties, Vols. 1 80 (1991), pp. 799 801). 6o ICJ Reports (1997), p. 7, paras. 41 6 and 99; ILM (1998) 162; 116 ILR 1. 61 1999 LC.J Rep. 1045, para. 18; 39 LL.M. 310 at 320 (2000).
Law of Treaties There has as yet been no case where the Court has found that the Convention does not reflect customary law. 62 This is not so surpriseing. As with any good codification of the law, the Convention inevitably reduced the scope for judicial law making. For most practical purposes, treaty questions are resolved by applying the rules of the Convention. To attempt to determine whether a particular provision of the Convention represents customary international law is now a rather futile task. Despite the slow rate of ratification, which will probably not increase, the Convention has become the authoritative statement of the law of treaties, and thus represents one of the most successful exercises in international law-making.
Conclusions
Can we draw any useful lessons from this short survey? All the treaties mentioned above aspire to universal ratification. The Vienna Convention on the Law of Treaties 1969 has been much more successful than the bare statistics would suggest. Although the sample studied may not be significant statistically, seeking the reason why some treaties are not a success does illuminate the treaty-making process. One thing is clear: however worthy the purpose of a multilateral treaty, and however well it has been drafted, that will not make it a success if States have reasons for not becoming parties. There is no such thing as a perfect treaty anymore than there can be a perfect solution to any legal problem, whether a court or a legislature is considering it. Any idea for any new universal treaty needs to be thought through carefully. Would it meet a real need? Would it add something useful? Would it have rivals? Would there be a genuine consensus for it? Would public or informed opinion in most States support it? These are quite some obstacles for the sponsoring State or States to overcome. They need to take full notice of the doubts of States as to the real need for the treaty and, in particular the reasons for the failure of previous treaties on similar subjects.
62
Mendelson in Lowe and Fitzmaurice (eds.), Fifty Years of the International
Court of Justice (1996), at 66; Vierdag, The time of the "Conclusion" of a Multilateral Treaty, 1988 B. YI.L. 145-6; Thirlway, The Law and Procedure of the International Court of Justice, 1991 B. YI.L. 3.
Harvard Research on International Law As for conventions based on final draft articles prepared by the International Law Commission, like national law commissions the Commission's success has been distinctly patchy. Of the some two dozen sets of final draft articles prepared during its nearly 60 years, so far only 16 have led to conventions, though this is not all the fault of the Commission. Only the Conventions on Diplomatic Relations, Consular Relations, and the Law of Treaties can be said to have been really successful. Each of these was, of course, founded on a solid base of customary international law. The Commission has on occasion adopted a somewhat mechanist approach, for example, in the case of Special Missions, Representation of States in their Relations with International Organisations, and Treaties and International Organisations. And when dealing with topics (such as state succession to treaties or in respect of property, archives and debts), where the solution to a problem will vary greatly depending on the circumstances, the solution has too often been of a one-size-fits-all nature. During the Cold War, there were other factors that made it difficult to get a reasonable outcome either in the Commission or later in the interstate negotiations. So, the Commission has had its successes and failures. It has been more comfortable when drafting codifications of well-established rules of customary international law. It has been less happy with a topic where the customary law was not so clear. Over the years, the Commission has been criticised in the Sixth Committee for not listening more to the comments of States. Hopefully, things have improved, but the continued preponderance of non-practitioners on the Commission does mean that views expressed within it do not always take fully into account what States need. The Commission's great success in finally producing, after nearly 40 years, a final set of draft articles on the complex subject of state responsibility is overwhelmingly due to the efforts of Professor James Crawford, an academic yet also a busy practitioner, albeit at a more rarefied level.63 Although it has been said that foreign ministry legal advisers, current or former, may be too political and not objective enough, greater participation by lawyers who have day-to-day experience of the international legal problems faced by States helps to produce draft conventions which meet more closely the needs of States who, after
63
See Chapter 3, supra.
Law of Treaties
335
all, are the eventual customers. Although it should be possible to correct things once the final draft articles are discussed in the Sixth Committee, or at a diplomatic conference, in practice it may then not be so easy to change substantially the course set by the Commission. To come back to the Harvard draft: perhaps the main lesson is that codification of public international law needs the involvement of all States, and in particular the primary consumers, foreign ministry legal advisers. Although the International Law Commission has made many mistakes, they were mostly during the Cold War years. In addition, States represented in the Sixth Committee did not give serious enough consideration to the various drafts put before them. Things have changed a lot in the last 20 years. Although the Commission is not a perfect body (and which international or national body can claim to be that?), it is all that we have to produce draft articles on international law of usually high quality, and superior to any which any other body, international or national, could produce today.
Chapter 12
JUDICIAL ASSISTANCE'
Jeremy Thomas Introduction
The Draft Convention on Judicial Assistance 2 (the "Judicial Assistance Convention") was part of the fourth and final phase of the work of the Research in International Law, with meetings of the reporters and advisers taking place in 1937-1938. When the Executive Committee of the Research in International Law proposed the topic, it was against the background that the Committee of Experts for the Progressive Codification of International Law in 1928 had recommended "the formulation of general international rules concerning 'the communication of judicial and extra-judicial acts in penal matters and letters rogatory in penal matters."' 3 In the same year the Busmante Code concerning the grant of letters rogatory in civil and criminal matters was drawn up.4 By 1938 the convention to which this code was annexed had been ratified by 15 South American states. At the Hague in 1929, a revision to the Hague Convention on Civil Procedure 5 (the "Hague Convention of 1905"), which was binding on many European states had been proposed.6 The United Kingdom was active in drawing up a large number of limited bilateral treaties on judicial assistance of enduring significance. Meanwhile, from these developments the United States government stood aloof. Thus, the object of the Judicial Assistance Convention in "stating the collective views of a group of Americans interested in the development of international law" was of particular interest.
The views expressed in this chapter do not necessarily represent those of
Ashurst.
2 33 Am. J. Int'lL. (Supp), 11-166 (1939). See also HarvardResearch in Inter-
nationalLaw (reprint by W.S. Hein, 2008); and the text of the draft convention appears below as Appendix 11. 3 General Introduction, supra n. 2, 7. 4 For the text of this, supra n. 2, 152. 5 The French text of this is found at supra n. 2, 148 151. 6 Documents relatifs a la Septi~me Session (1951) (vol. ii) 60. 7 At the time there was a general feeling, certainly in the United States, that topics which fell under the heading of private international law were more likely
Harvard Research on International Law The Judicial Assistance Convention was comprehensive in approach, embracing proceedings before civil, criminal and international tribunals.8 However, such an approach has not subsequently been emulated. Perhaps the chief reason for this at any one time is the varying level of consensus on, and interest in, judicial assistance with regard to any particular type of proceedings, combined with the appearance of regional approaches to certain types of proceedings such as civil proceedings. In addition, it has proved especially difficult to make progress on a universal or even regional convention providing for judicial assistance to international tribunals. 9 Accordingly, as in other areas of international law, a process of fragmentation has emerged so that different topics, often even within the field of civil procedure, have their own separate corpus of law.' 0 Given the limitations imposed by available space, this chapter will focus on the civil procedure and related provisions of the Judicial Assistance Convention. These cover the service of documents and the taking of evidence abroad, and the provision of information on the law of other states. The reason for choosing them is principally because the field of civil procedure possesses the longest history of judicial assistance and provides the greatest opportunity for comparito be ones upon which agreement could be reached for codificatory purposes: see Report of Special Committee on Collaboration with the League of Nations Committee for the Progressive Codification of International Law, 20 Am. J Int'l
L. (Spec. Supp.), 10 (1926).
8 The Judicial Assistance Convention consists of 14 articles and is divided up into eight parts namely: Use of Terms; Civil Proceedings Service of Documents; Civil Proceedings Obtaining Evidence Abroad; Criminal Proceedings Service of Documents; Criminal Proceedings Obtaining Evidence
Abroad; International Proceedings; Information on Law of Other States; and
General Provisions. 9 The basis on which any such tribunal receives assistance is usually under its own statute or perhaps because of national legislation rather than by virtue of an overarching international convention applicable to all international tribunals. The lack of such a convention means that the statutes of some international
courts, such as that of the International Criminal Court, expressly provide for ad
hoc judicial assistance by non-members: see Article 87(5)(a) of the Rome Statute of the International Criminal Court. 10 However, one should not overestimate the differences between practice of
judicial assistance in civil and criminal proceedings. For instance, the Common-
wealth Scheme for Mutual Assistance in Criminal Matters uses concepts taken from various civil procedure conventions.
Judicial Assistance son with what went before and what followed after." The other reason for choosing to emphasise the civil procedure provisions is that the authors assimilated the provisions in criminal and international proceedings to those in civil proceedings, while adding to or varying the civil provisions for circumstances uniquely applicable to criminal or international proceedings. In their view "in matters of procedure simplicity is a prime requisite" 12 so concepts and provisions used in one part of the Judicial Assistance Convention were replicated elsewhere, and in the same order, without further explanatory commentary. Accordingly, an analysis of the civil procedure provisions will give an indication of the strengths and weaknesses of the Judicial Assistance Convention as a whole.
Judicial Assistance in Civil Proceedings in Historical Context

Examples of international judicial assistance can be found in antiquity.1 3 However, it was not until the last quarter of the nineteenth century when a movement for the codification of the rules of private international law took place, including those relating to judicial assistance, that a multinational treaty on the subject became a possibility. An early example of such a treaty was the Convention on Civil Procedure, Montevideo 1889. Nevertheless, the origins of today's provisions on judicial assistance in civil matters, can more usefully be traced back to the Second Hague Conference of 1894 which led to the Hague Convention of 1896. The relatively terse
11 the date of the Judicial Assistance Convention, the subject of criminal At judicial assistance, as the authors candidly aclnowledged, "had not received the same development in international relations as judicial assistance on civil and commercial matters. There is no multipartite treaty comparable to the Hague Convention [of 1905] and there are relatively few bipartite treaties": see Draft
Convention on Judicial Assistance, supra n. 2, 91. The position with regard to
international tribunals was even worse, the subject of judicial assistance there being described as "sadly neglected:" see Draft Convention on Judicial Assistance, supra n. 2, 104. 12 Draft Convention on Judicial Assistance, supra n. 2, 91.
13
A short history of judicial assistance by the authors is found in the intro-
ductory comment to the Draft Convention on Judicial Assistance, supra n. 2,
26 29.
Harvard Research on International Law provisions of that treaty were subsequently replaced by the Hague Convention of 1905. By 1938, the Hague Convention of 1905 was binding upon 23 states all from Western or Eastern Europe. The common law countries were notable for their absence. The United Kingdom was active in this area but in a different way. It preferred to enter into bilateral treaties, and did so with no less than 22 other states in the inter-war years.1 4 The United States, albeit that a number of individuals 15 and organisations championed the cause of judicial assistance, was engaged in its "long policy of not collaborating on this kind of endeavour." 16 Indeed, one important result of the Judicial Assistance Convention, was the stimulus it gave to official thinking on judicial assistance in the United States.' 7 The Judicial Assistance Convention was published just before the Second World War but it was not until 1954, and the revival of the activities of the Hague Conferences, that a new civil procedure convention emerged. The substantive provisions of this are almost identical to the Hague Convention of 1905.18 It was to be a few more years before significant developments emerged. The most significant post-war conventions on civil procedure are the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters of 1965 (the "Hague Service Convention") 19 and the Convention on the Taking of Evivery useful table of these is set out in D. McClean, International Co-operation in Civil and Criminal Matters (2002), 21 and their influence should not be underestimated: see H. Jones, Service and Evidence Abroad under English Civil
15 For example A. Kuhn,
14 A
Procedure, 29 Geo. Wash. L. Rev. 495 (1960-1961).
Should Great Britain and the United States be
represented at the Hague Conferences on Private International Law? Am. J. Int'l L. 774 (1913).
16
K. Nadelmann, The United States joins the Hague Conference on Private Commission on International Rules of Judicial Procedure in the United
International Law, 30 Law & Contemp. Probs. 291 (1965).

17 The
States attributed the roots of reform of judicial assistance in that country to the authors together with a study initiated at about the same time by the Department of Justice: The FirstAnnual Report of the Commission on InternationalRules of JudicialProcedure(1959), 10.
18An unofficial translation of the latter is found in 1 Am. J. Comp. L. 283 (1952). 19 For a detailed commentary see PracticalHandbook on the Operation of the
Hague Service Convention (2006).
Judicial Assistance dence Abroad in Civil or Commercial Matters 20 of 1970 (the "Hague Evidence Convention") which came respectively out of the tenth and eleventh sessions of the Hague Conference (together the "Hague Service and Evidence Conventions"). They enjoy the most widespread and numerous participations of any multipartite convention on 21 civil judicial assistance today. Based upon the experience of these conventions the European Union enacted Council Regulation (EC) 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and Council Regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. These regulations support the objective of maintaining and developing the European Union as an area of freedom, security and justice. Given the high level of political integration between the Member States of the European Union it is not surprising that these regulations probably represent the most sophisticated legal instruments supporting the provision of judicial assistance in civil proceedings today. In other parts of the world there have also been further developments, especially in Latin America. 22 However, this chapter will focus primarily on a comparison between the Judicial Assistance Convention and the Hague Service and Evidence Conventions, and the Hague Convention of 1905, as these treaties were intended to operate at a universal rather than regional level which was the aim of the authors. In addition there will be some reference to practice in the European Union. This will enable us to view the ideas and concepts of the authors in some detail against the contemporary practice of the region where judicial assistance has reached its most sophisticated form.
20
Articles 1-14 of the Evidence Abroad Convention provided for execution of
letters rogatory, while Articles 15-22 covered the taking of evidence by diplomatic officers, consular agents and commissioners. 21 On 3 October 2006 the Hague Service Convention had 53 contracting states and on 16 November 2005 the Hague Evidence Convention had 43. 22 For a summary of the principal treaties and forces impacting judicial cooperation in Latin America see A. Garro, Unification and Harmonization of Private Law in Latin America, 40 Am. J. Comp. L. 587 (1992). For an overview of such developments in America, Africa and Asia see D. McClean, supra n. 14, 64 72.
Harvard Research on International Law However, before we go further, in order to appreciate the issues facing the authors of the Judicial Assistance Convention (the "authors"), we need to note the issue that makes judicial co-operation difficult in both civil and criminal matters, that is, the different views that common and civil law systems take of the role of the judge. In common law countries, broadly, the service of documents, the preparation of the case for trial and the obtaining of the necessary evidence of the witnesses is not a function of the judge or supporting judicial machinery, it is for the parties themselves. This means that in common law countries there has been much greater emphasis on the parties serving documents and obtaining evidence abroad. For civil law countries this has meant they have found that common law courts, especially in the United States, will not execute their requests for assistance, and without such assistance they have in the past often been unable to serve documents or take evidence. In civil law countries, obtaining evidence is a function of the judge. This means, on the one hand, that letters rogatory are to be used for the collection of evidence and possibly service of documents because their execution is in accordance with the judicial will. On the other hand, the service of documents and collection of evidence by the parties is a usurpation of the judicial role and a challenge to judicial sovereignty, unless official permission is obtained. For common law countries, this has meant that adopting their normal method 23 of service in civil law countries may lead to prison. Definitions Used by the Judicial Assistance Convention Article 1 sets out definitions of many key terms.2 4 Neither the Hague Convention of 1905 nor the Hague Service and Evidence Conventions use definitions. This points to an issue to keep in mind when considering the impact of the Judicial Assistance Convention, namely, that the common nationality and perspective of the authors
23
See B. Ristau: Overview of International Judicial Assistance, 18 Int'l L. 531
(1984) and Deutsch, Judicial Assistance: Obtaining Evidence in the United States Under 28 U.S.C. 1782, for use in a Foreign or International Tribunal, 5 B. C. Int'l Comp. & L. Rev. 178 (1982). 24 Henceforth references to Articles are to articles of the Judicial Assistance
Convention, unless the circumstances otherwise require.
Judicial Assistance enabled them to be more precise in their use of language than those who followed after. For their successors, lacking such a common perspective, precision in drafting was unlikely to prove so attractive when ambiguity in language was necessary to disguise substantive disagreement. It is also worth noting that the Judicial Assistance Convention also uses the definitions and explanatory commentary to ensure that a particular term is given an expansive interpretation and that potential technical restrictions are not implied. Our first defined term is "tribunal of a state." It is significant because the Judicial Assistance Convention makes one entity, tribunals, the key actor in civil judicial assistance, and especially so whenever compulsion is required. 26 In contrast, the Hague Convention of 1905 provided that the principal means of service was by demand of the consul of the requesting state addressed to the authority designated by the requested state, although other means were permitted so that existing practice on service of documents was "greatly diversified." The authors foresaw that if one body was responsible for the transmission of documents and the taking of evidence it would encourage efficiency, speed and a greater knowledge of the relevant issues. All the more so if the body involved was at the heart of the legal process. As the authors put it "the essential requisite is simplicity and speed. Requests for execution of documents involve no great issues of state policy. They concern only the workings of tribunals and the simplest way to carry them out is to permit tribunals to come into direct relation with each other., 27 Such language is not very different from that used over 60 years later by the European Commission to explain why
25
The open-ended language of the Hague Service and Evidence Conventions as
distinguished from the use of elaborate definitions, has been given as one reason why the Supreme Court of the United States has sometimes struggled with these Conventions: Borchers, The Incredible Shrinking Hague Evidence Convention, 38 Tex. Int'l L. 73 (2003). J. 26 Under Article 2 requests for the service of documents is a matter for the tribunals of the state of origin and execution, although others may be involved. Under Article 4 the granting of and execution of letters rogatory is a matter for the same tribunals and under Article 5 the appointment of a commissioner to take evidence is the right of a tribunal from the state of origin and it is only a tribunal from the state of execution which can provide compulsion to assist. 27 Draft Convention on Judicial Assistance, supra n. 2, 50.
Harvard Research on International Law only local bodies designated by Member States can be used for transmission of documents 28 or why the taking of evidence is only to be undertaken by courts.2 9 However, the idea was ahead of its time. Trust between states was lacking so diplomatic channels to lubricate, as necessary, the system were still required. Accordingly, when the time was ripe for a treaty of universal application on the service of documents, it was not politically possible to make mandatory direct contact between the courts of the contracting states. Instead, the Hague Service Convention places states under an obligation to designate a Central Authority to receive requests for service coming from Contracting States and in 3 0 practice this functions as the primary recipient of incoming requests. The Central Authority can be the Ministry of Justice, Foreign Office or part of the court services of a state or indeed even a new body. To the relevant Central Authority, any authority or judicial officer under the law of the state in which the documents originate can forward a request for service, with the option of using consular channels if necessary. 31 Although the Hague Service Convention did not require the requesting body to be the same as the Central Authority some states, such as the United Kingdom, have required outgoing requests
Council Regulation (EC) 1348/2000: "Efficiency and speed in judicial procedures in civil matters means that the transmission of judicial and extrajudicial documents is to be made direct and by rapid means between local bodies
28
designated by the Member States." Although this regulation does not require the transmitting body to be at the court the fact that the transmitting and receiving agency can be the same points in this direction. 29 Council Regulation (EC) 1206/2001: "The efficiency of judicial procedures in civil or commercial matters requires that the transmission and execution of
requests for the performance of taking of evidence is to be made directly and by the most rapid means possible between Members States' courts." 30 Article 2 of the Hague Service Convention. This Convention also provides that it shall not interfere with the freedom of judicial officers and any person interested in judicial proceedings to effect service through the judicial offices of the state of destination (Article 10(b) and (c) of the Hague Service Convention) or for two or more states to agree as between themselves the channels of transmission and, in particular, for direct communication between their respective
authorities (see Article 11 of the Hague Service Convention).
3' Article
9 of the Hague Service Convention.
Judicial Assistance to be forwarded through their Central Authority. 2 Not until the new millennium has a legal instrument governing a large number of states required direct service between the transmitting and receiving agency and encouraged a designated body to act as both for service of documents 33 or to receive direct contact between requesting and requested courts for the taking of evidence, thus doing away with the delays that can build up when successive intermediaries are used.34 The definition of a "tribunal of a state" included certain administrative authorities. This was "an important departure from a number of existing treaties," 35 including the Hague Convention of 1905. Although there was a certain ambiguity, as we will see, as to whether the Hague Convention of 1905 covered administrative matters, the authors could find no good reason for such an approach. They believed that the reluctance to extend the Hague Convention of 1905 to administrative matters "stems from the traditional refusal to execute foreign tax laws" 36 and continued, "[w]hile there may be well-founded reasons for not collecting taxes levied by a foreign State, there seems little reason to deny assistance in the service of documents and the obtaining of evidence. The modem State administers justice through administrative agencies as well as through courts. If there be need for international co-operation in furthering the administration of justice in controversies involving private interests, there is an equal, if not greater, interest in the case of controversies involving public interests." The Hague Service Convention moved towards embracing administrative authorities. Pursuant to that convention the requesting entity must be an "authority or judicial officer" and at first blush reference to "authority" looks wide. However, such authority has to be competent under the law of the relevant state. Given, as we will see below, the reluctance of some states to extend the Hague Service Convention to administrative matters, states can exclude administrative authorities from those competent to initiate requests.
32
This was for much the same reasons that the authors suggested requesting and
receiving bodies should be the same, so that their mutual familiarity and the familiarity of their officers with the system would grow. 33 Article 2(3) of Council Regulation (EC) 1348/2000. 34 Article 3 of Council Regulation (EC) 1206/2001. 35 Draft Convention on Judicial Assistance, supra n. 2, 36. 36 Draft Convention on Judicial Assistance, supra n. 2, 38.
Harvard Research on International Law However, in practice the authors have been vindicated because, even in those states which have not yet accepted that judicial assistance extends to administrative matters (increasingly few), the Central Authorities through whom requests are served do not keep definitive lists of the competent authorities so requests from bodies other than competent bodies often slip through.3 7 Our second defined term is "civil proceedings." In adopting this term the authors deliberately departed from the earlier Hague Conventions which applied the provisions of such treaties on civil judicial assistance to "civil and commercial matters." Although the phrase "civil proceedings" is ostensibly narrower on its face than judicial assistance in "civil and commercial matters," the authors intended to give wider application to the provisions on civil procedure than the previous Hague Conventions. This was because in many states of Continental Europe, in the absence of a definition of "civil and commercial" in such conventions, a distinction was made between "civil," ''commercial" and "administrative" matters causing administrative matters to be excluded. Under the Judicial Assistance Convention, very broadly, everything before a national tribunal, whether contentious or non-contentious, is civil unless it is a criminal matter. Subsequent treaties and regulations use the "civil and commercial" formulation without definition. It is found in the Hague Service and Evidence Conventions. It is also in the relevant European Union legislation.3 8 It has proved more attractive in subsequent practice 39 because of its inherent ambiguity, or more positively, its flexibility. Without a definition it has permitted the relevant states to give the See Report on the Work of the Special Conmmission on the Operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (21-25 November
37
1977) 17 . L. M. 325 (1978). Some countries have considered tightening this up
by requiring their Central Authorities to keep lists of the competent bodies of

others; see Law Reform Commission of Ireland Report on the Hague Convention on the Service Abroad of Judicial and ExtrajudicialDocuments in Civil or Commercial Matters (1965) (December 1987), 9.
38 Council
39
Regulations (EC) 1348/2000 and 1206/2001. These terms are construed more strictly in application to the Hague Evidence
Convention than in the practice relating to the Hague Service Convention, Practical Handbook on the Operation of the Hague Service Convention (2006), 24.
Judicial Assistance phrase the meaning they wish and in practice there have not been many issues. 40 The Special Commission of 1977 on the operation of the Hague Service Convention (the "Special Commission") concluded that different states took different positions on the meaning of the phrase but that the only effective barriers against service were in criminal or tax matters. Accordingly, it recommended that in the absence of a uniform solution acceptable to all these states "... the Convention be applied in the most liberal possible manner in respect of the scope of its subject matter., 4 1 This suggests that the spirit which impelled the authors to provide that the civil procedure provisions should have a wide application is likely to prevail, although they were some years ahead of their time. Our final defined term is "evidence." This is very widely defined, as any form of "probative material", and the examples given in the definition are said to be "for the purposes of illustration and must not be taken as limiting the generality of the term. It is immaterial that the evidence is given by a party or by an outside person, by an ordinary witness or by an expert. The term is not used in any technical sense and it is not to be limited by definitions or explanatory rules in the law of any particular State. ' ,4 2 The Hague Evidence Convention provides no such similar explanation of the term and, on occasion, national courts giving effect to that convention have not been willing to give it the same expansive interpretation provided for by the Judicial Assistance Convention.4 3
40
For instance, the United States has tended to regard the Hague Service
Convention as applicable to all matters other than criminal: see E. Alley, Hague Conference on Private International Law: 1989 Special Committee Meeting on the Operation of the Hague Evidence Convention and the Hague Service Convention 8 B.U.Int'l L.J. 89 (1990). 41 See Report on the Work of the Special Commission on the Operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (21-25 November 1977) 17 LL.M. 321 (1978). The 2003 Special Commission confirmed that by then, tax in some states fell within the scope of the Hague Service Convention, Practical Handbookon the Operationof the Hague Service Convention (2006), 29. 42 Draft Convention on Judicial Assistance, supra n. 2, 43. 43 See D. McClean, supra n. 14, 112.
Judicial Assistance Convention and Civil Proceedings-Service of Documents

The Judicial Assistance Convention provides tribunals with a variety of means for serving documents in civil proceedings.4 4 Article 2 sets out the power of a tribunal to request assistance from the tribunals of the state of execution. Such a request was perceived in the common law way as "probably one of the lesser used methods," but it had the great advantage that "compulsion may be used to effect service." 45 Where compulsion was not desired, simpler and more expeditious methods could be used. These were set out in Article 3, which gave authority to a tribunal from the state of origin to serve documents in the state of execution without any intervention by the authorities of that latter state, either by diplomatic or consular officers of the state of origin, or by an agent appointed by the tribunal which requires the service, or by an agent appointed by a party to the proceedings before the tribunal which requires the service. The class of document which could be served was wide, there being no attempt to define what constituted a document. The language of the earlier Hague Convention of 1905, which suggested that the service of documents was to be limited to "communication d'actes judiciaires et extra-judiciaires,"was expressly rejected as "possibly inadvisable" or confusing. 46 The authors stated that the only limitation on the class of documents to be served was that (a) the document must be required to be served by a tribunal and (b) it must be required for the purpose of a civil proceeding. Notwithstanding the authors' strictures, the language referring to judicial and extrajudicial documents very much forms part of the Hague Service Convention. However, if the language remains the same, it has enjoyed an expansive interpretation of which the authors would have approved. One leading commentator suggests that the meaning of extrajudicial now "appears almost unlimited in scope," the only limit on service being that the documents must be ones 47 emanating from an authority or judicial officer of a contracting state. Indeed, such has been the liberality of
44 Article 13 should also be noted in the context of serving 45 Draft Convention on Judicial Assistance, supra n. 2, 64.
46
documents abroad.
Draft Convention on Judicial Assistance, supra n. 2, 47.
47 D. McClean, supra n. 14, 44. See also PracticalHandbook on the Operation of the Hague Service Convention (2006), 29 and 30.
Judicial Assistance approach that a practice has evolved whereby some documents are served even if they do not emanate from an authority or judicial officer, if they are of a type which would normally call for service by such person in their respective country. Article 2: The service of documents with the compulsion of the requested tribunal The Judicial Assistance Convention draws a distinction48 between, on the one hand, tribunals which request service of documents and the tribunals to whom they are addressed and, on the other,49 the means of transmitting those requests. Transmission of requests could be made in three ways: (a) directly by the tribunal; (b) by a diplomatic or consular officer of the state of origin; or (c) by the government of the state of origin through the diplomatic channel. Further flexibility was provided in that the recipients of such transmission could be, in the first two cases above, to the authority designated 5 to receive such requests by the state of execution or to a particular tribunal or to the Ministry of Justice of the state of execution. Where the request went through the diplomatic channel, the recipient had to be the government of the state of execution. For the future this distinction was important because it pointed to the fact that the diplomatic channels were merely one way by which documents could be served. Diplomatic channels were to be the servants of the courts, to be used if they "will serve the ends of simplicity and speed which are essential in judicial assistance." 5 1 The relative unimportance of the means of transmission, save for using the quickest route, was recognised in the Hague Service Convention 52 and has been emphasised in recent European legislation on service of documents. Council Act 97/C 261/01 drawing up a convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or common law
48
50 51
49 Section 4 of Article 2.
Section 1 of Article 2.
Section 4 of Article 2. Draft Convention on Judicial Assistance, supra n. 2, 54. 52 Practical Handbook on the Operation of the Hague Service Convention (2006), xxvii.
Harvard Research on International Law matters 53 affirms that direct contact between the relevant bodies is "an antidote to the slow transmission of documents by diplomatic channels. 54 The explanatory note expressly says "the Convention does not list the means of transmission which may be used." 55 The task for the requesting state is first to find the means of transmission which will lead the document to arrive most swiftly in the receiving state, an idea not very different from that of the authors, although given the politics at the time they felt the need to list the options. Other helpful sections of the Judicial Assistance Convention and equivalent provisions of which are not found in the Hague Convention of 1905, are Sections 5 and 6 of Article 2. The former section requires a tribunal to forward a request to a competent tribunal if the recipient is unable to execute it. Such a provision was irrelevant to the Hague Service Convention where the primary means of service was via a state's Central Authority. However, it is no surprise to find a similar provision in Article 6(4) of Council Regulation (EC) 1348/ 2000 as under that regulation, tribunals are likely to receive requests. The latter section provides that if a request is not executed, the tribunal from which the request emanated shall be promptly informed of the reason for failure to execute it. It may have prompted similar provisions in the Hague Service Convention as to refusal to execute both because the request does not comply with the provisions of that convention 56 or because it falls within the sovereignty or security of the state.5 7 There are some areas the authors only partially got right. One such area is the reasons for not executing a request. Section 6 of Article 2 provides that a request duly made in accordance with the provisions of the Judicial Assistance Convention is to be executed unless: (a) The service requested is intended to confer on the tribunal making the request jurisdiction over a person who by the law of the State of execution cannot be subjected to such jurisdiction; or
Although the Convention set out in Council Act 97/C 261/01 never came into force, much of its content found its way into Council Regulation (EC) 1348/ 2000. 54 Commentary on Article 2 of the Explanatory Note. 55 Commentary on Article 4 of the Explanatory Note. 56 Article 4 of the Hague Service Convention. 57 Article 13 of the Hague Service Convention.
53
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(b) Execution is impossible on account of absence of the person upon whom service is requested, or on account of inability to locate such person, or for any similar reason; or (c) The government of the State of execution considers that execution of the request would be contrary to the public interest. In drawing up these grounds the authors wanted "to reduce as far as possible the number of permissible reasons for refusing to execute a request for service" but failed to follow their own advice. For example, the first ground was acknowledged as having "no precedent in international agreements" 58 and the commentary on it has been described as "remarkable. 5 9 It did not find acceptance in the Hague Service Convention, Article 13 of which expressly provides that a state may not refuse to comply with a request solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject matter of the action, or that its internal law would not permit the action upon which the application is based. The third ground for not executing a request has a long history but as formulated by the authors was not without difficulty. As they note, the phrase "almost universally in use" as a ground for refusing a request was "sovereignty or security." 6 However, the authors preferred reference to "public interest." This was because "sovereignty or security" did not cover a situation that the authors thought should be covered, while it had been interpreted more widely than appropriate. 6' With regard to their preferred wording, they believed that reference to the "public interest" lacked precision and although "not wholly satisfactory, it is not believed that it would give rise to much diffi58
Draft Convention on Judicial Assistance, supra n. 2, 56.
59 D. McClean, supra n. 14, 63. The inclusion of such provision is explicable on
the basis that one of the advisers on the Judicial Assistance Convention was Judge Augustus N. Hand who 20 years previously had given judgment in the
case of Re Letters Rogatory out of First Civil Court of City of Mexico, 261 Fed.
652 (S.D. N.Y. 1919). In that case he held that letters rogatory from a Mexican court could not be executed because, inter alia, to do so would be to allow Mexico to claim an exorbitant jurisdiction over residents of the United States. The judgment seems to have proceeded on a misunderstanding that service does not create jurisdiction but is normally a precondition to the exercise of jurisdiction. 60 Draft Convention on Judicial Assistance, supra n. 2, 57. 61 Draft Convention on Judicial Assistance, supra n. 2, 58.
Harvard Research on International Law culty. True, the phrase has a flexible meaning, but not a limitless one." The Hague Service Convention maintained the "sovereignty or security" formula, not surprisingly given the authors' somewhat halfhearted endorsement of their suggestion and in practice it has not caused a problem. When its application was discussed by the Special Commission it was noted that its invocation was rare. Interestingly, one of the examples given, was a summons to appear before a foreign court addressed to a national monarch.62 This was very similar to the situation identified by the authors as not covered by the "sovereignty 63 or security" formulation. With regard to the second ground for not executing a request the authors were on firmer territory. Although it is not in the Hague Convention of 1905 a similar provision was adopted in the Hague Service Convention. This excludes the application of that convention where the address of the person to be served with the document is not known.6 4 The provision in the Judicial Assistance Convention is narrow. If the person to be served is unable to be located, the relevant tribunal is under a duty to use the means within its power to carry out service. As the commentary to the Judicial Assistance Convention puts it, "inability to locate" does not imply mere difficulty in locating. The equivalent provision in the Hague Service Convention does not place such an obligation on the requested state; if the address is not known the Convention does not apply. 65 However, in practice it has not been used to avoid service of documents where an address "is incomplete, inaccurate or fictitious." In such circumstances the Central Authorities should attempt to find out the correct address of the person to be served.6 6
62
See Report on the Work of the Special Commission on the Operation of the
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (21-25 November 1977) 17 1 L.M. 322 (1978). 63 A case of attempted service on a foreign sovereign within the territory of the state of execution. 64 Article 1(2) of the Hague Service Convention. 65 D. McClean, supra n. 2, 27 28. 66 See Report on the Work of the Special Commission on the Operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extra-
Judicial Assistance An area where practice shows the need for greater detail than the authors foresaw relates to the form used to request service or to notify service to the requesting tribunal. With regard to notifying a request for service, both the Judicial Assistance Convention 67 and the Hague Convention of 190568 provide some details designed to enlighten the tribunal in the state of execution as to what was required. However, given the volume of requests and the ease of overlooking items, there has been a need to standardise requests, reflected in the appearance and development of the standard forms annexed to the Hague Service Convention and Council Regulation (EC) 1348/2000. Failure to use the forms correctly or not at all, or their inadequacy, is often a reason for delay in service or the reason why some aspect of the relevant legal regime does not work properly. With regard to notifying the requesting tribunal of service, Section 8 of Article 2 obliges a state executing a request to send to the requesting tribunal a certificate of the fact, the date and the manner of the service effected, following as nearly as possible any form suggested in the request. The commentary on this provision provides that "it is self-evident that a proof of service is necessary but it is unnecessary to go into much detail as to the manner in which it shall be done." 69 Although the Hague Service Convention accepted the former point, it requires 70 that the Central Authority of the state addressed, or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to it. This form, as well as the matters identified as relevant in the Judicial Assistance Convention, requires details of the place of service and the person served to be included.71 It also provides that if the document has not been served, it shall set out the reasons which
judicial Documents in Civil or Commercial Matters (21-25 November 1977) 17
I. M. 321 (1978). L.
67 68 69 70
Section 2 of Article 2. Article 1 of the Hague Convention of 1905. Draft Convention on Judicial Assistance, supra n. 2, 61. Article 6 of the Hague Service Convention. By virtue of Article 3 of the
Hague Service Convention a duplicate is required. 71 Article 6 of the Hague Service Convention also provides that the applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.
Harvard Research on International Law have prevented service. 7 2 The Judicial Assistance Convention is silent as to how the certificate is to be returned, as is the Hague Service Convention, so it seems that any method will suffice. In some areas, practice is evolving and it is unclear whether the relevant principle enshrined in the Judicial Assistance Convention will be vindicated. A couple of examples will suffice. First, with regard to the use of a translation of the document to be served and any accompanying request, the Hague Convention of 1905 permitted the use of local compulsion if the document to be served was in the language of the requested authority, or was in the language agreed between the two interested states, or if it was accompanied by a translation into one of those languages. Absent such translation, the requested authority could limit itself to such service as the addressee voluntarily accepted. The Judicial Assistance Convention eliminated voluntary acceptance because it included an obligation that if either the request or the accompanying document was not in the language of the state of execution, a translation was provided. This simplifies the drafting of the relevant provisions and ensures that both the executing authority and the recipient of service can understand the relevant documents. Nevertheless, the drafting of the Judicial Assistance Convention requires time, effort and expense to be incurred unnecessarily where the recipient of the document understands the language in which the document is drafted. Thus, the Hague Service Convention rejected the need for requests and accompanying documents to be translated into the language of the executing state.74 Instead, that Convention provides states with a discretion to require such translation.7 5 It also
72
The Commentary to the Judicial Assistance Convention provides that the
certificate may be sent either through the channel through which the request came or through any other convenient channel: Draft Convention on Judicial Assistance, supra n. 2, 61. 73 Section 3 of Article 2. 74 The benefits of providing for such an option can be seen in that voluntary delivery has been found to be by far the most broadly used approach in a number of countries such as Scandinavia, France, Belgium and the Netherlands and by dispensing with the need for translation it renders the maling of service
cost free. 75 This means that states such as the United States can specify, as they do, that a
translation is required. In the United States, service on a person who does not
Judicial Assistance continues to expressly provide for voluntary service in addition to the procedures of the executing state.76 Equally, with regard to the service of documents within the European Union, there has been an unwillingness to require the mandatory translation of documents.
Under Council Regulation (EC) 1348/200077 an addressee has the
right to be informed of, and the right to refuse to accept, a document if it is not in one of the specified languages. A second example of where it is still unclear whether the proposals suggested by the Judicial Assistance Convention will be emulated is set out in Section 7 of Article 2. This provides that if the requesting state suggests a particular manner of service, that should be followed insofar as not "forbidden" by the law of the state of execution. The Hague Convention of 1905 included a similar provision but expressed slightly differently. It provided for delivery in the manner specified by the requesting state unless "contrary to" the law of the state of execution. The British treaties of the inter-war years substituted the words "not contrary to" by the words "incompatible with." This choice of language by the authors was deliberate. They wanted the suggestion of the requesting state to be implemented unless under the law of the state of execution there was a positive proscription on the manner of service. Thus, if the requesting state asked for a means of execution unknown to the law of the requested tribunal, the latter would be required to implement it, because there was no law forbidding the manner of service requested. Under the Hague Convention of 1905, or the British treaties, any such request, it was believed, would be "incompatible" with, or "contrary" to, local law. The Hague Service Convention adopted the wording of the earlier British treaties on this point. It is hard to disagree with McClean who asserts, "it is unrealistic to expect the law of any state to list modes of service which are not allowed; the policy of the authors 8 gives inadequate 7 weight to the interests of the state of destination.,
understand the language of the document may not be good service on the
grounds of want of due process. See D. McClean, supra n. 14, 33. 76 Article 5 of the Hague Service Convention. 77 Article 8 of Council Regulation (EC) 1348/2000. 78 D. McClean, supra n. 14, 63. Article 7(1) of Council Regulation (EC) 1348/2000 adopts the "incompatible" approach. In practice it is unusual for a requesting state to specify the means of service.
Harvard Research on International Law On its treatment of costs, the Judicial Assistance Convention has not been followed. It gives power to the executing state to postpone service pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred, including the expense of service in a special manner. Such fees could be no higher than those usually allowed for comparable services in domestic proceedings, 79 so that persons in other states should not receive better treatment than the person in the territory of the executing state. The authors left the identity of the persons to pay, to the state of origin to determine, but conceived that the options were between the state of origin or the parties to the relevant litigation. The Hague Convention of 1905 provided that no fees were to be extracted from the requesting state, but the executing state could require reimbursement for expenses occasioned by the intervention of a serving officer or the employment of a special form of service. 80 Similar wording is found in the Hague Service Convention save that "serving officer" has been substituted by "judicial officer" or a "person competent under the law of the State of destination" and the obligation to pay is upon the applicant. The same wording is found in Article 11 of Council Regulation (EC) 1348/2000.81 From the perspective of the smooth and swift transmission of documents, the approach taken by the Hague Service Convention has much to commend it. Under the Hague Service Convention the costs, are limited to those occasioned which may be more or less than the maximum payable under the law of the state of execution in connection with analogous domestic proceedings.
Article 3: The service of documents without compulsion

Article 3 has in many ways been the least followed in spirit. It covers the service of documents where no compulsion is required. It provides three such grounds. First, a document can be served in the state of execution without any intervention by the authorities of that state, by a diplomatic or Section 9 of Article 2. Article 7 of the Hague Convention of 1905. The Hague Convention of 1896 made no provision for costs. 81Article 12. Practice under the Hague Service Convention has been varied. Some states require no fee, others a fixed fee.
79
80
Judicial Assistance consular officer of the state of origin where the person to be served is a national of that latter state. Of the three grounds, this has the most pedigree, yet in some ways it is surprisingly cautious. In substance, it is not dissimilar to Article 6 of the Hague Convention of 1905 and Article 8 of the Hague Service Convention. However, the latter is wider than Article 3 of the Judicial Assistance Convention, because the power is not limited to nationals of the state of origin, although there is provision for a state to declare that service is to be limited to 82 the nationals of the state of origin. The other two grounds do not have equivalents in the Hague Service Convention. They give the right of service without intervenetion of the state of execution to an agent appointed by (a) the tribunal which requires service or (b) a party to the relevant proceedings. The authors stated, "there is no cogent reason why States should be free to oppose service by such regularly established means as agents of a tribunal or a party where no compulsion is exercised, and where no political problem, such as is involved in the exercise of diplomatic or consular functions, is raised., 83 Such a view was understandable for those in the common law tradition of the United States, which resisted using local courts in the state of execution as a means of enforcing service, but allowed litigants to secure service themselves. However, as McClean8 4 points out, "this wholly fails to take into account the sensitivities of those in the civil law tradition who see service of process as trespassing on [the state's] judicial sovereignty." Although Article 10(b) of the Hague Service Convention permits service by inter alia judicial officers of the state of origin and Article 85 10(c) service by any person interested in judicial proceedings, any such forms of service can only be conducted directly through the judicial officers and other competent persons of the state of execution. In these cases, there is no conception of service without the intervention of the authorities of the other state. Council Regulation (EC) 1348/2000 is equally unsupportive of service by those involved in A large number of states have made such declaration. Draft Convention on Judicial Assistance, supra n. 2, 65. 84 D. McClean, supra n. 14, 63. 85 This provision can be traced back to Article 6 of the Hague Convention of
82 83
1905 and illustrates the lack of impact on this point of the Judicial Assistance
Convention on the Hague Service Convention.
Harvard Research on International Law judicial proceedings without the assistance of the competent persons 86 in the state addressed.
Judicial Assistance Convention and Civil Proceedings-Obtaining Evidence Abroad

Part III of the Judicial Assistance Convention governs obtaining evidence abroad in civil proceedings. 87 Like Part II on the service of documents, it consists of two articles made up of a number of sections. The first article, Article 4, concerns itself with obtaining evidence by means of compulsion through use of letters rogatory. The second article, Article 5, facilitates obtaining evidence by means of commission without compulsion save by application to a local tribunal when a witness proves recalcitrant. In bringing together in one convention the preferred ways of taking evidence by civil law states (by letters rogatory) and common law countries (by commission), the Judicial Assistance Convention built a "bridge between common law and civil law procedures," which the Hague Evidence Convention emulated. 88 The Hague Convention of 1905 only concerned itself with the civil law way of doing things, by letters rogatory. The parallels between the provisions on service of documents and obtaining evidence abroad are striking, apart from the division of the relevant articles into one dealing with a coercive approach and one in which compulsion is at best secondary. In both, the primary focus is on the provision of assistance to tribunals. Further, in Article 4, the text of many of the amplifying sections is similar to the corresponding section of Article 2, so that for the commentary on Sections 2, 6, 7 and 13 and important elements of Section 1, the reader is referred to the commentary on the corresponding provisions of Article 2.
Article 15 of Council Regulation (EC) 1348/2000. Article 13 should also be noted in the context of taking evidence abroad. 88 Bodies looking at the operation of the Hague Evidence Convention almost as a matter of ritual begin by reference to it "acting as a bridge between common law and civil law procedures." For a recent example of this, see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Evidence and Service Conventions (28 October 4 November) (2003) 7.
86 87
Judicial Assistance
Article 4: The taking of evidence by letters rogatory and with the compulsion of the requested tribunal
The taking of evidence by letter rogatory under the Hague Convention of 1905 was often slow and cumbersome. Direct address between the courts of the requesting state and the state executing a letter rogatory was possible under the Hague Convention of 1905 but it was not the only method. The Hague Convention of 1905 provided that a judicial authority may communicate by letter rogatory with the competent authority of another state, which could be the courts. Furthermore, the means of transmitting the letter rogatory and evidence of its execution was by the consul of the requesting state, although it was possible for each state to decide unilaterally that they could be transmitted through diplomatic channels. In order for there to be direct transmission between the appropriate authorities, there needed to be agreement between the relevant states. 89 The Judicial Assistance Convention recognised that the solution to this problem was the "fundamental and important rule" 90 that request for service is made by one tribunal to another in order to achieve speed and simplicity. However, with regard to transmission of letters rogatory it is circumspect, as it had been for the service of documents. There is provision for direct transmission between tribunals without any need for states to agree such a method, although the other methods we have noted for service of documents were also available. The Hague Evidence Convention persisted with the approach of the Hague Convention of 1905 that it was the competent authority of the requested state to whom letters rogatory were addressed and that this did not necessarily mean a court. However, the emphasis on obtaining evidence by direct communication between courts or tribunals was modestly advanced. As with the Hague Service Convention, states had to designate a Central Authority to receive letters rogatory from other state parties to that convention, but the Hague Evidence Convention makes no mention of the consular or diplomatic channel in Article 2, thus undermining these competing channels. Indeed, a proposal to make it specifically available as an alternative conven-
89 Article 9 of the Hague Convention of 1905. 90 Draft Convention on Judicial Assistance, supra n. 2, 49.
Harvard Research on International Law tional channel was rejected. 91 Furthermore, letters were to be sent to the Central Authority of the state of execution without being transmitted through any other authority of that state. 92 All of this simplified the basic procedure for making requests and accustomed states to these more direct forms of contact. More substantial fulfilment of the aspiration of the authors to have direct contact between courts of different states for the purpose of taking evidence had to await the development of a more integrated community of states. It is Article 2 of Council Regulation (EC) 1206/ 2001 that first brings to fulfilment their ideas in this area with regard to direct address and communication between courts and for the same reasons. As the preamble to the regulation notes: "The efficiency of judicial procedures in civil or commercial matters requires that the transmission and execution of requests for the performance of taking of evidence is to be made directly and by most rapid means possible between Member States' courts." In doing so this regulation recognised that if courts were to directly address each other the Member States had to draw up a list of the courts competent to take evidence under it in their respective jurisdictions. As so often in this area, practical considerations and a robust infrastructure underpin effective practice. Another area where the Judicial Assistance Convention was an advance over the Hague Convention of 1905 and a pointer to further developments, concerns the form of letters rogatory. The Hague
91See Explanatory Report in Actes et Documents de la Onzibme Session (1968) (vol. iv), 205. It's worth noting that under the Hague Evidence Convention the consular and diplomatic channels are still available, but not as a primary means of communication. The consular or diplomatic channel is available, either through declaration under Article 27(a), through separate agreement under Article 28(a), through other conventions under Article 32, through the internal law and practice of the state of execution under Article 27(b), or through applicable rules of public international law. Further, Articles 27(a), 27(b), 28(a) and 32 of the Hague Evidence Convention permit the issuing authority to send letters direct "from court to court", or through a party to the action direct to the executing tribunal, by-passing the Central Authority of the state of execution. This is not permissible under the Convention, in the absence of some such special authorisation, since the normal rule under Article 2 requires transmission through the Central Authority of the state of execution. 92 Article 2 of the Hague Evidence Convention.
Judicial Assistance Convention of 1905 had not covered this but there was substantial practice from the United Kingdom as to the form of request. The authors drew the right conclusion as to the usefulness of this work and gave some guidance as to the content of letters rogatory,93 although it seems more likely that the Hague Evidence Convention was more influenced by the practice of the bilateral conventions of the United 94 Kingdom than by the terms of the Judicial Assistance Convention. All the same, the affirmation that the Judicial Assistance Convention gave to greater certainty in the form of request points to the clarity of the authors' thinking. Certainly this is the way that developments have gone with a non-obligatory model form being devised and revised in 1985 in connection with the Hague Evidence Convention, while for states subject to Council Regulation (EC) 1206/2001 it is obligatory to use the forms there specified. 95 Section 12 of Article 4 fills a surprising gap in the Hague Convention of 1905. It specifies what the requested tribunal is to do once it has obtained the relevant evidence and how the evidence is to be returned. Some of the British bilateral treaties of the inter-war period also identified the issue but the Judicial Assistance Convention was perhaps in advance of its time in specifying that the relevant evidence and other specified matters, including a certificate of execution, should be sent to the tribunal from which the letter rogatory emanated. The subsequent Hague Evidence Convention was more circumspect, simply providing that the documents establishing the execution of the letter rogatory should be sent by the same channel used by the requesting authority. 9 6 Article 16 of Council Regulation 1206/2001 follows the same approach envisaged by the Judicial Assistance Convention, including a certificate of execution. Section 9 of Article 4 introduced some new issues into the drafting of international treaties dealing with letters rogatory. It provided that letters rogatory may be refused insofar as the evidence sought would be patently irrelevant to the proceedings or insofar as the evidence sought would violate a privilege accorded by the law of the state of execution. The authors were aware of the dangers of allowing the
93 Section 2 of Article 4.
94 Report of the Special Commission in Actes et Documents de la Onzime Session (1968) (vol. iv), 59. 95 Article 4 of Council Regulation (EC) 1206/2001. 96 Article 13 of the Hague Evidence Convention.
Harvard Research on International Law court of execution to be the judge of the relevance of the evidence requested. The commentary calls it a "more difficult area to deal with" and recognises that the provision must not be "an excuse for general control by the executing tribunal over the admissibility of evidence. 97 All the same, the right to refuse execution if the evidence sought to be secured is "patently irrelevant," was included. Those who have followed after have not been so easily persuaded that the dangers can be overcome. The concept is not found in the Hague Evidence Convention. 98 The authors were on surer ground, as indeed they recognised, when they included privilege accorded by the law of the state of execution as a reason for refusing a request. Such a provision was included as Article 11 of the Hague Evidence Convention and recognised as a new provision although by then the ambit of the provision had grown to include the privilege afforded by the state of origin as well as third party states. 99 A similar provision is included in Regulation 1206/2001, but the privilege afforded to third party states no longer makes an appearance. The obligation on the executing tribunal to use coercive measures to enforce a letter rogatory as set out in Section 10 of Article 4, is broadly similar to that provided by the Hague Convention of 1905 and subsequently by the Hague Evidence Convention, although there are nuances in language between them all. The basic rule is that the executing tribunal shall use the same procedure and the same compulsive measures it employs in taking evidence in domestic proceedings. A proviso to the Judicial Assistance Convention states that if the employment of a particular procedure has been requested, it shall be employed insofar as it is "not forbidden" by the law of the state of execution. As with other instances where this formulation is used, it is Draft Convention on Judicial Assistance, supra n. 2, 78. 98 There is a hint of it in a recent decision in Intel Corp. v. Advanced Micro Devices, Inc., (2004) 124 S. Ct. 2466 in the Supreme Court of the United States. If the evidence requested is non-discoverable in the state from which the request came and it could not be used before such court there is some suggestion that this goes to whether courts in the United States will exercise their discretion to enforce any letters rogatory. See generally Chukwumerije, International Judicial Assistance: Revitalising Section 1782, 37 Geo. Wash. Int'l L. Rev. 649 (2005). 99 See Report of the Special Commission in Actes et Documents de la Onzime Session (1968) (vol. iv), 60 61 and Explanatory Report in Actes et Documents de la Onzime Session (1968) (vol. iv), 209.
97
Judicial Assistance seen as imposing a greater duty on the state of execution than the "not contrary" formulation of the Hague Convention of 1905. The authors believed that their formulation meant that if the law of a requested state did not provide for coercive measures but there was no express prohibition on their use then, if requested, they must be used. Subsequent practice has not followed the authors' drafting. 00 The language used in Section 11 of Article 4 seems likely to have impacted the drafters of the Hague Evidence Convention. For instance, the Hague Convention of 1905 required notice to be given of the date and place where proceedings are to occur, while the Judicial Assistance Convention refers to the more specific "time and place." This latter formulation the Hague Evidence Convention adopted. Furthermore, the Hague Convention of 1905 specified only that the interested "party" should be put in a position to attend proceedings taking evidence while the Judicial Assistance Convention provided for the "parties," a drafting point adopted by the Hague Convention.101 Section 11 also gives the additional right to the requesting tribunal to ask that designated persons, beyond the interested parties, be given notice of any taking of evidence together with any diplomatic or consular officer through whom the letter rogatory was transmitted. By pointing to the interests of a wider group of persons in the taking of The Rapporteur from the United States to the Commission which prepared the Hague Evidence Convention emphatically stated "The requesting authority cannot ask the executing authority to grant compulsion in the execution of the Letter to any extent greater than the compulsion which would be applied, under the same circumstances, in a domestic proceeding in the State of execution." See
100
Explanatory Report in Actes et Documents de la Onzime Session (1968) (vol. iv), 209.
Some common law jurisdictions have interpreted "not contrary to" in a way
that moves towards the way the authors interpreted "not forbidden." In J. Barber v. Lloyds Underwriters [1986] 2 All E.R. 845, Evans J said "not contrary to" means "the method is so contrary to English procedures that it should not be acceded to." In the context of that case, therefore, a request to video record evidence outside of a court pursuant to a letter rogatory of a US court was permitted even though as a matter of English law, video taping of evidence within a court was not permitted. Accordingly, the decision has been criticised: See D. McClean, supra n. 14, 131. 101 Article 7 of the Hague Evidence Convention and Report of the Special Commission in Actes et Documents de la Onzime Session (1968) (vol. iv), 60.
Harvard Research on International Law evidence, the Judicial Assistance Convention may have impacted on the authors of the Hague Evidence2 Convention who included a new 1 0 article, Article 8, to similar effect. The treatment of the translation of letters rogatory and accompanying papers provides a good example of a proposal of the Judicial Assistance Convention not being followed. Many of the bilateral conventions of the United Kingdom at the time provided for a translation of a letter rogatory, where it was not in the language of the executing state, to be certified by a diplomatic or consular officer of the state of origin or other authorised translator of either of the countries involved. The authors thought, "this sort of detail can best 0 be regulated by bilateral agreement"' 1 3 and such provision was omitted from Section 5 of Article 4, but the subsequent Hague 0 Evidence Convention contains provision for certification. 1 4 Council Regulation 1206/2001 takes the issue of ensuring that costs are not wasted by inaccurate translation even more seriously by specifying that requests pursuant to it shall be drawn up in the5 language of the 10 requested state or in another language it can accept. Another example of the Judicial Assistance Convention not being followed is Section 8 of Article 4, which affirms that the reasons for refusing to execute a letter rogatory are similar to those for refusing to serve a document; namely, impossibility of service and that execution would be contrary to the public interest. The difficulties that the authors found with the phrase "sovereignty or security" as a reason for refusing a letter rogatory had not materialised 30 years later in the 0 view of the Eleventh Session of the Hague Conference. 1 6 The authors deliberately rejected including an exemption because letters rogatory did not fall within the attributes of the judicial power as found in the Hague Convention of 1905 and other bilateral treaties of the inter-war period. On such exemption neither the drafters of the Hague Evidence
102
See also Article 12 of Regulation 1206/2001. The extensive elaboration of
the right of the requesting court to ask to be present at the taking of evidence
points to the significance of this issue. 103 Draft Convention on Judicial Assistance, supra n. 2, 53. 104 Article 4 of the Hague Evidence Convention. 105 Article 5 of Council Regulation (EC) 1206/2001. 106 Explanatory Report in Actes et Documents de la Onzime Session (1968)
(vol. iv), 210.
Judicial Assistance Convention 0 7 nor Regulation 1206/2001108 followed the Judicial Assistance Convention. The Judicial Assistance Convention has also not been followed on the payment of the costs of executing a letter rogatory. Section 13 of Article 4 provided that the requested state need take no action pending receipt of a satisfactory guarantee of reimbursement of the expense incurred. This provision was an intended departure from the Hague Convention of 1905, that execution of letters rogatory shall not give rise to reimbursement of fees or costs, save in certain limited circumstances. 0 9 However, subsequent developments have sought to allow the requesting state to take advantage of the legal infrastructure of the requested state and to allow the latter only to charge for exceptional items and even to narrow these down. For example, Article 16(2) of the Hague Convention of 1905 permitted the state of execution to demand reimbursement of (1) fees paid to witnesses and experts; (2) fees paid to official personnel to compel appearance of witnesses; and (3) costs occasioned by a request for some "special procedure." However, Article 14 of the Hague Evidence Convention, in what its Rapporteur described as a "radical break"110 with the past, eliminated the reimbursement of fees paid to witnesses and to official personnel to compel the appearance of witnesses. All that remains subject to reimbursement are the fees paid to "experts and interpreters" and costs occasioned by using a special procedure.' Council
107 Article
12(a) of Council Regulation (EC) 1206/2001.
Article 14(2)(b) of Council Regulation (EC) 1206/2001. 109 Article 16 of the Hague Evidence Convention 1905.
108 110 Explanatory Report in Actes et Documents de la Onzime Session (1968)
(vol. iv), 210. 111 the United Kingdom judges could not examine the witnesses themselves In but appointed examiners to conduct the examination. If no public official was available to do this, a lawyer would be needed for which a fee would be charged. The Hague Evidence Convention provided that if the law required the parties themselves to secure the evidence and did not allow the relevant requested authority to do so, then the requested authority having obtained the consent of the requesting authority to do so and provided to it an estimate of costs, could appoint a person to do so. Such exception has not been carried over into Regulation 1206/2001. The problems of another common law state, the United States, where costs accrue for the purpose of compelling an unwilling witness and for a transcript of the evidence, were also dealt with by way of right to reimbursement of the fees incurred (Article 26).
Harvard Research on International Law Regulation (EC) 1206/2001 is similar and even expressly prohibits the requesting court from asking for a deposit before12executing a 1 request, save where the opinion of an expert is required. A point made in the Judicial Assistance Convention's commentary, possibly characterised as "clever," is that none of the major conventions of the time made provision for the translation of papers accompanying letters rogatory, while the Judicial Assistance Convention did. The commentary noted that at the Fourth Hague Conference it was stated that it goes without saying that the documents accompanying a letter rogatory would have to be in the same language as the letter. Subsequent Hague Conferences did not feel the need to change this position, notwithstanding the thoughts of the authors. Finally, it's worth noting that Article 4 would have permitted very widespread use of pre-trial discovery which in the United States is so intrusive and which has been such a fruitful source of controversy subsequently. Indeed, the authors believed that letters rogatory could be issued under that article even if no proceeding was actually pending, if the letter rogatory was issued for the purpose of a civil proceeding. 1" 3 Such an approach has been firmly resisted outside the United States and Articles 1(2) and 23 of the Hague Evidence Convention sought to limit the operation of pre-trial discovery under 1 14 that convention.' Article 5: The taking of evidence by a commission Article 5 of all the articles that we are considering in detail, is the one that challenged contemporary practice in civil law states the most, pointing the way to possible future developments in its area and yet its principal thrust in many aspects remains unfulfilled. Broadly, the Article 18 of Council Regulation (EC) 1206/2001. Convention on Judicial Assistance, supra n. 2, 46. 114 For a summary of the ongoing issues with pre-trial discovery and its impact on the Hague Evidence Convention, see Conclusions and Recommendations Adopted by Special Commissions on the Practical Operation of the Hague Apostille, Evidence and Service Conventions (28 October to 4 November 2003), 7 8 and for a sample of the literature: P. Borchers, The Incredible Shrinking
112
113Draft
Hague Evidence Convention, 38 Tex. Int'l L.J. 73 (2003) and J. Nafziger, Another Look at the Hague Evidence Convention after Aerospatiale, 38 Tex.
Int'IL.J.103 (2003).
Judicial Assistance article gives a tribunal the right in civil proceedings to appoint one or more commissioners (who need not be diplomatic officers or consular agents) to obtain evidence in the state of execution and, if requested, a competent tribunal in the state of execution is required to exercise compulsion in aid of the commission. Otherwise, a commissioner is not allowed to exercise compulsion. Article 15 of the Hague Convention of 1905 had recognised the possibility of a diplomatic officer or consular agent taking evidence, but such recognition was "in the most general and non-specific terms."' 1 5 Furthermore, it was limited to situations where bilateral conventions between the relevant states permitted, or where the state in which the letter rogatory was to be executed did not object. The authors recognised that Article 5 would be contentious. They commented that "it is obvious that the taking of evidence by a commission (as here used) is not favoured by many states,"'116 but "the courts of the United States evince a decided preference for the commission over the letter rogatory,"' 17 as was the case to a lesser extent in Great Britain, "so that it appears necessary to include it1 in ' 18 any convention which is prepared for possible universal adoption." The following "outstanding advantages" of a commission were identified: (1) it was a more expeditious means than the letter rogatory; (2) it imposes less of a burden on the state of execution; and (3) it gives greater control over the proceedings to the state of origin, which is the organ primarily interested. Finally, the authors argued that "it cannot be said that the commission interferes with local authority since under Section 3 of this article, a commissioner may not himself exercise any compulsion over witnesses but must seek the aid of local 1 tribunals." 19 The features of Article 5 which are progressive in terms of a proposed universal treaty of the time are: (1) that commissioners need 12 0 not be diplomatic officers or consular agents of the state of origin;
115 Report
of the Special Commission in Actes et Documents de la Onzime on Judicial Assistance, supra n. 2, 86. on Judicial Assistance, supra n. 2, 85. on Judicial Assistance, supra n. 2, 86. on Judicial Assistance, supra n. 2, 87. treaties of the United Kingdom there was already provision
Session (vol. iv), 63. 116 Draft Convention 117 Draft Convention 118 Draft Convention 119 Draft Convention 120 In many bilateral
for conmmissioners outside the diplomatic community.
Harvard Research on International Law (2) that taking of evidence was not limited to taking the testimony of witnesses but also included "securing the production, identification or examination of documents, books, papers, records, samples, objects or premises;"' 121 (3) that all civil proceedings were caught; (4) that the state of execution was under an obligation to permit commissioners very wide freedom to execute their commissions in that state, namely a commissioner shall be permitted to invite the attendance of witnesses, to administer oaths to witnesses, to examine witnesses in accordance with any procedure prescribed by the appointing tribunal, to record the testimony taken and transmit the record to the appointing tribunal, and to obtain and transmit to the appointing tribunal any kind of evidence not forbidden by the law of the state of execution; (5) the right of the commissioner to petition a competent tribunal of the state of execution to compel the attendance of witnesses, the giving of testimony and the production of evidence; and (6) an obligation on the state of execution to grant on petition compulsive measures, save in exceptional circumstances. Such compulsive measures were to be as provided by the law of the state of execution. Certain ideas found within the Judicial Assistance Convention on the use of commissioners are enshrined in Chapter II of the Hague Evidence Convention. For instance, commissioners need not be diplomatic officers or consular agents, they may request the exercise of compulsion from the competent authority in the state of execution, commissioners can be used in civil or commercial matters and there is a certain freedom in the manner of taking evidence. 122 However, to suggest that Chapter II created a structure in which the use of commissioners for the taking of evidence has flourished, would be wrong. The Hague Evidence Convention moved beyond the bare recognition of the use of commissioners found in the Hague Convention of 1905, but such was the disagreement between the parties that at best Chapter II can be viewed as providing minimum standards for
121 122
Draft Convention on Judicial Assistance, supra n. 2, 84. Both Section 2 of Article 5 of the Judicial Assistance Convention and Article
21(d) of the Hague Evidence Convention permit evidence to be taken in the manner provided by the law applicable to the court in which the action is taken provided that such manner is not forbidden by the law of the state where the evidence is taken (a rare example where the "forbidden" formula of the Judicial Assistance Convention, rather than the "incompatible" formula, is preferred in the Hague Evidence Convention).
Judicial Assistance the use of commissioners. Any such use is hedged around with conditions and subject to rights of reservation that many states have exercised. Indeed, it has been pointed out that the Hague Evidence Convention was in some ways a step back in comparison with earlier Hague Conventions as it permits contracting states to require that evidence is taken only1 by the consul, if permission to that effect has 23 been given in advance. Instead of the unambiguous rights in the Judicial Assistance Convention to appoint a commissioner, the Hague Evidence Convention distinguished between the nationalities of witnesses whose 1 24 evidence was to be taken and the identity of the commissioner. Pursuant to Article 15, a diplomatic officer or consular agent can take evidence from the nationals of the state that he represents in the state where he is located. But a contracting state may limit this right by declaring that such person can take evidence only if permission to that effect is given upon application made by the commissioner to the appropriate authority designated by the declaring state.1 25 Pursuant to Article 16, a diplomatic officer or consul may take evidence from the national of the state in which he exercises his function, or of a third state but in this event a competent authority designated by the state in which he exercises his function must have given permission, either generally or in the particular case. He must also comply with any conditions which the competent authority has specified in the permission. A contracting state may declare that evidence may be taken under this article without its prior permission. Article 17 deals in terms similar to Article 16 with a commissioner's right to take evidence. In sum, given the opportunity for states to declare under Article 15(2) that no diplomatic officer or consul can take evidence
123
Report on the work of the Special Commission on the Operation of the
Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (1978) in Actes et Documents de la Quatorzime Session (1980) (vol. iv), 424. 124 For an explanation of the reasons for adopting different articles depending on the nationality of the witness and the identity of the commission see Report of the Special Commission in Actes et Documents de la Onzime Session (1968) (vol. iv), 63 70. 125 For example, even a common law country such as Australia has made such a declaration. Other such states include Norway, Sweden, Switzerland and
Portugal.
Harvard Research on International Law without its express permission, the duties to obtain consent under Articles 16 or 17, the right to derogate from Chapter II by a side agreement between states under Article 28, or to do so by means of a convention under Article 32, and the right to place a reservation on Chapter II under Article 33, there is the potential for "a morass of 126 non-uniformity." To some extent, this is what has come to pass. In the Hague Evidence Convention any obligation on the state of execution to exercise compulsion when asked by a commissioner was also hedged around by restrictions. First, a diplomatic officer or consul could only ask the competent authority in the state of execution for assistance if the requesting state had declared that this was permissible. Furthermore, such state could apply any conditions it thought fit. 12 7 Second, if the competent authority in the state of execution could be asked to use compulsion, there was no obligation on it to do so. If it did, it could lay down such conditions as it thought fit. 128 The essence of the rule underlying these provisions is that permission to apply compulsion must be found, both from the requesting state and the state of execution. Given that under the Hague Evidence Convention there is no duty on the state of execution to provide compulsive measures, the need to set out the circumstances in which such aid could be refused is otiose. Nevertheless, some matters which the Judicial Assistance Convention provided for, such as the right of the person requested to rely on privileges and duties to refuse to give evidence, are included in the Hague Evidence Convention. 129 The Hague Evidence Convention was also silent on the issue of whether the state of execution could recover its costs if compulsion was required, as the Judicial Assistance Convention had provided. The reason for this was that if the right to
126
Explanatory Report of the Special Commission in Actes et Documents de la
Onzi~me Session (1968) (vol. iv), 212. For instance, Argentina, China, Bulgaria, Germany, Poland, Portugal, Romania, Sri Lanka and the Ukraine have all either excluded all of Chapter II or Articles 16 and 17, Mexico has excluded Article 17 only and South Africa Articles 15 and 16. On the other hand, states such as the United Kingdom, the United States and Spain have all declared that evidence may be taken under Articles 16 or 17 on their respective territory without prior permission. 127 Article 18 of the Hague Evidence Convention. 128 Article 19 of the Hague Evidence Convention. 129 Article 21 (e) of the Hague Evidence Convention.
Judicial Assistance use compulsion was granted, it would be subject to conditions and it could be expected that one of these would be that all costs and expenses would be met. Somewhat surprisingly, the Judicial Assistance Convention makes no provision for translation of any request to give evidence, if not drawn up in the language of the recipient. Such 0 13 oversight the Hague Evidence Convention corrects. The Hague Evidence Convention limited the use of Chapter II to the taking of evidence. The taking of evidence as a broad concept was stated to include all kinds of evidence which are not incompatible with the law of the state where the evidence is taken or contrary to 1 any permission granted. 3 1 Diplomatic officers and consuls were not to be used to perform some other judicial act as could be undertaken 32 under a letter rogatory.1 Judicial Assistance Convention and Information on the Law of Other States Article 12 affirms that a tribunal can request information on any question of law relating to another state by a request to that state. There was no obligation on the requested state to supply the information, but if it did not intend to do so, a refusal was required. There was some support for such a provision in the Bustamante Code and certain bilateral treaties which imposed an obligation on the parties to furnish the texts of law in force in the requested state. 133 In the authors' view though, the most "interesting instrument" in this field is the British Foreign Law Ascertainment Act 1861. This provided that when a convention for the ascertaining of foreign law is in force, a British court may request a foreign court to pronounce an opinion on the law applicable to the facts of the case. However, it was
130 131
132
Article 21 (b) of the Hague Evidence Convention. Article 21(a) of the Hague Evidence Convention.
Report of the Special Commission in Actes et Documents de la Onzime Ses-
sion (1968) (vol. iv), 64 and compare Articles 1 and 15 of the Hague Evidence Convention. 133 These continue. As an example, see a summary of Chinese practice in T. Chen, International Judicial Assistance in China: Plodding into the Twenty-First Century, 26 Int'lL. 409 (1992).
Harvard Research on International Law repealed, no such convention having been concluded by Great Britain. 134 Despite this unpropitious background, in 1968, under the auspices of the Council of Europe, there was concluded the European Convention on Information on Foreign Law 13 5 (the "London Convention") and in 1979 the Inter-American Specialized Conference on Private International Law approved a convention on Proof of and Information on Foreign Law 36 (the "Inter-American Convention"). Of these two conventions the London Convention is probably the more important, enjoying the larger participation, and states other than members of the Council of Europe may join, albeit that presently most contracting states are European. Both conventions adopt a model not dissimilar to that used by the Hague Service and Evidence Conventions. For example, under the London Convention, each state is required to designate a "receiving agency" to receive requests for information and act upon them. Furthermore, a state may set up a transmitting agency to receive requests from judicial authorities and transmit them to the appropriate foreign receiving agency. Requests for information may be made only by judicial authorities and there are various provi37 sions dealing with translation, time for response and cost issues. The London Convention has been described "as a significant innovation in setting up mechanisms to facilitate access to information on foreign law." However, in practice it has been a "qualified success" that has not been used as much as it might, being seen as time consuming and expensive. All the same, it and the InterAmerican Convention point to the fact, that with regard to the longerterm development of the provision of material assistance on foreign
134
For a summary of similar British statutes covering Commonwealth countries,
see S. Geeroms, ForeignLaw in Civil Litigation (2004), 136 137. 135 C.E.TS. No. 062. In the context of the provision of information on law in administrative matters, see the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (1978) (C.E.TS. No. 100). This acts as a supplement to the London Convention with regard to the provision of information, but has received less support. 116 181. L. M. 1231 (1979). 137 See generally B. Rodger and J. Van Doom, Proof of Foreign Law: The Impact of the London Convention, 46 .C.L.Q. 151 (1997). A commentary on the individual articles of the London Convention is found in the Explanatory Report to the European Convention on Information on Foreign Law (E.T.S. No. 062).
Judicial Assistance law, the Judicial Assistance Convention, in a number of ways, was rather tentative. First, a voluntary system of providing information was unlikely to encourage anyone to use it, waiting to see if an answer would be given, risks delay. Second, the supporting framework of obligations necessary to ensure effective judicial assistance is missing, such as those relating to translation, costs, etc. Third, in contrast to the principles expressed elsewhere, requests for assistance under the Judicial Assistance Convention are to be made to the government of the other requested state and not its tribunals, and transmission of requests, information and refusals are to go via the diplomatic channel, rather than directly between tribunals. Given that there is no reason why in theory a request for a statement of law should not go from one court to another, it is not surprising that the text of the London Convention is little influenced by the Judicial Assistance Convention. Perhaps only 138 the required content for in possible to detect an echo. requests is it
General Provisions of the Judicial Assistance Convention

Part VII of the Judicial Assistance Convention concerns general provisions and embraces two articles. Article 13 is a saving provision cast in language of a type seen often before. It provides that "nothing in the Convention shall prevent the service of a document or the obtaining of evidence or of information on law in the territory of another State by any method provided for by the law of the State of origin and not forbidden by the law of the other state, or by any method provided for in any agreement between the states concerned." With regard to the service of documents, this provision was intended to be a means of encouraging the use of the post as a means of service. The Hague Convention of 1905 was thought to be unduly restrictive on this, because it merely provided that nothing in it shall prevent service by post. 139 The intention of the authors was to ensure that if the local law was silent on whether service could be conducted by post, service by post was acceptable. Such an approach has been Compare Article 7 of the London Convention with Section 2 of Article 12 of the Judicial Assistance Convention. 139 Draft Convention on Judicial Assistance, supra n. 2, 116.
138
Harvard Research on International Law criticised by McClean as "quite unrealistic" where states140 not use did means of service and therefore had not prohibited it. such Nevertheless, with regard to expanding the use of the post as a means of service, the authors pointed the right way. The Hague Service Convention gave the "freedom" to do so subject to any objection.141 Council Regulation (EC) 1348/2000 only allows states1 42 to specify conditions on the use of the post and not to prohibit its use. However, more broadly, subsequent legal instruments governing multi-state relations have authorised means of transmission if permitted by the internal law of the receiving state.1 43 This means, unlike under the Judicial Assistance Convention, that generally, technological advances cannot be used to create new means of service unless duly sanctioned. Article 13 was also seen by the authors as a means by which evidence could be taken voluntarily without reference to a court; a backdoor way of maintaining the common law freedom to allow the parties to take evidence. Article 14 is a clarificatory article to make it clear that the fact that judicial assistance has been rendered does not affect the legal consequences of the acts before the courts of either the state of origin or of execution. Thus, in an example provided in the commentary "the fact that a tribunal in the State of execution has rendered assistance in the service of a document does not mean that it cannot refuse' 144 to execute a judgment rendered subsequently in the same proceeding. The Hague Convention of 1905 did not have such a provision and as the commentary to the article noted, "it is believed the same result
140 141
D. McClean, supra n. 14, 63. Article 10(a). Ironically, it has been the courts of the United States which
have on occasion been reluctant to permit the use of the post as a means of service, see D. McClean, supra n. 14, 35 37. 142Article 14 of Council Regulation (EC) 1348/2000. 143 For example, Article 19 of the Hague Service Convention. Interestingly, though, in the case of Habib Bank Limited v. Central Bank of Sudan [2006] E.W.H.C. 1767 (Comm), the phrase "permitted by the law of the country in which it is to be served" was construed to mean that the High Court in London may permit a form of service "as long as it does not contravene the law of the country where service is to be effected." In other words, as long as there was no express prohibition on the proposed means of service in the relevant country, that form of service could be used. 144Draft Convention on Judicial Assistance, supra n. 2, 117.
Judicial Assistance would follow in the absence of an express provision." Thus, it is not surprising that no equivalent to Article 14 has found its way into the Hague Service or Evidence Conventions.
Overall Impact of the Judicial Assistance Convention on the Development of Judicial Assistance in Civil Proceedings
Since the Judicial Assistance Convention was published nearly 70 years ago, the approach to judicial assistance has been transformed. The long-established resistance of states to co-operation in criminal proceedings has broken down and in civil proceedings there has been a steady building on past initiatives. Only in proceedings before international tribunals has little been done to establish an overarching convention which can be relied upon by them to ensure co-operation. With regard to civil proceedings, the Judicial Assistance Convention is worth recalling in the context of these developments. First, the authors emphasised that if any universal scheme of judicial assistance was to be successful, it needed to embrace both common law and civil law procedures. Second, their values of speed, directness and efficiency as a means of judging the utility of their proposals are the values by which some of the most sophisticated regulations in the field of judicial assistance are today judged. Third, they identified the need to go beyond assistance to courts to assistance to a wider range of tribunals. Indeed, their emphasis on tribunals working together may be seen as the beginning of a change of emphasis, reflected in the literature by the change of the title of our topic from judicial assistance to international co-operation. 145 However, one should not over-emphasise its direct influence on subsequent developments. It is hard looking at the traveaux preparatoires to the Hague Service and Evidence Conventions to identify direct acknowledgments, although provisions that first appeared in the D. McClean, in his leading English work on judicial assistance, changed its name from "International Judicial Assistance" at the time of its first edition in 1992 to "International Co-operation in Civil and Criminal Matters" at the time of its second edition in 2002. Part 9 of the Rome statute of the International
145
Criminal Court uses both appellations in its title being "International Coopera-
tion and Judicial Assistance." See also H. Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J.515 (1953).
Harvard Research on International Law Judicial Assistance Convention, such as the right to refuse evidence on grounds of privilege, were to become part of such conventions. References to it in the secondary literature are rare, and the leading work on the topic emanating from a common law jurisdiction devotes two pages to considering its civil provisions, all largely negative, and a paragraph to its criminal provisions. 146 Furthermore, commentators more regularly point to the unique features of the Hague Service and Evidence Conventions as a source of inspiration for regional developments in America, Africa and Asia than to the Judicial Assistance Convention. 147 For this lack of direct influence a number of reasons can be advanced, apart from the bad timing of its publication, just before the outbreak of the Second World War. First, and perhaps the overarching one, is that despite bringing together the practices of civil and common law states, the Judicial Assistance Convention still reflected the view of American jurists too much to find widespread acceptance. As McClean concludes "although based on research of lasting value, the draft articles on service of documents rest overmuch on United States perceptions and would not have survived the sort of examination to which they would have been exposed at an international diplomatic conference."'1 48 The fact that promoting the views of Americans interested in judicial assistance was the task of the authors means that any lack of adoption of its content elsewhere is not their fault, although it may explain that result. Second, although the authors' proposals were for the best, often they were so in advance of their time that implementation was either impractical or impolitic. For instance, they rightly emphasised the importance of direct contact between tribunals. But today, even in the European Union where political integration has advanced furthest, direct contact for the purpose of judicial assistance in civil proceedings is not mandatory, although it is moving that way. Equally, they were too prescriptive for the time as to whether administrative proceedings should be within the bailiwick of a convention on civil
146
See D. McClean, supra n. 14, 62-64 and 160. on the Operation of the Hague Service Convention
147 Practical Handbook
(2006), 102 104 and D. McClean, supra n. 14, 65 72 and A. Garro, Unification and Harmonization of Private Law in Latin America, 40 Am. J.Comp. L. 596 (1992). 148 D. McClean, supra n. 14, 64.
Judicial Assistance procedure. Given the different practices of the time, their clear drafting was unhelpful when a degree of "woolliness" was needed. Third, there are matters of detail. The authors often choose to use drafting terms different from those used in the Hague Convention of 1905, choosing for instance "civil" for "civil and commercial" and "public interest" for "sovereignty or security." Given long experience of the terms in the Hague Convention of 1905, any arguments in favour of such change needed to be persuasive, and often they are less than compelling. That their arguments were often so can be seen in other areas, such as the suggestion that all documents to be served should be translated. In some areas, proposed changes of substance, such as the right to delay judicial assistance until a guarantee of reimbursement of costs is given, look petty. In other areas, British practice was in place earlier and has more often been acknowledged as guiding those who have followed after. Some suggested changes reflect no more than the erroneous judicial experience of an adviser, or perhaps the desire to make a trifling point. In addition, there are areas where experience and technology show the need for greater clarity. For instance, in the modem world of instantaneous communication, the fact that an executing state is under an obligation to serve a document is no longer enough. There needs to be a time by which it is delivered. 149 Equally, technological change can lead to new requirements which could never have been envisaged, such as the use of videoconferencing and teleconferencing to take evidence, 150 although possibly Article 13 would have provided a solution to this. Furthermore, in an increasingly litigious world, experience shows that in civil matters more sophisticated forms are important for the swift disposal of the volume of requests. The impact of the Judicial Assistance Convention also needs to be considered in the context of its influence on the practice of the United States, both as to its internal law and with regard to ratification of various international conventions. It undoubtedly manifested the collective desire of members or former members of the American courts, federal government and the legal and academic community for further collaboration between states on issues of civil procedure.
149
150
See Article 10(1) of Council Regulation (EC) 1206/2001. See also Practical See Article 10(4) of Council Regulation (EC) 1206/2001.
Handbookon the Operationof the Hague Service Convention (2006), 55.
Harvard Research on International Law Given the ongoing "juridical isolationism" of the US government, this helped maintain interest in that state in the topic until more propitious times. Further, in the words of one commentator, once the United States decided to act "the comment of the reporters, the bibliography, and appendices of pertinent legislation, treaties, conventions, and draft conventions, which accompany the [Judicial Assistance Convention] constitute the only reservoir of authority on the subject available in American libraries." 151 When, in 1958, the United States established a Commission on International Rules of Judicial Procedure (the "US Commission") to review its laws on judicial assistance, the influence of the Judicial Assistance Convention can be seen in the requirement that the purpose of the US Commission was to extend to 152 quasi-judicial agencies and proof of foreign law. However, it would be wrong to over-emphasise the impact that the Judicial Assistance Convention made in the United States. The real impetus behind the desire of the United States in the 1960s to be at the forefront of judicial assistance was the multiplication of its overseas investments and the drive of the American Bar Association and one or two interested private individuals.1 53 Further, the very same author who a few years before commended the Judicial Assistance Convention as "the only reservoir of authority ... American in libraries" recognised, once the US Commission was established, the need to "start almost from scratch in building up a library of information on existing practice of international judicial assistance." In particular, it was recognised that there was a need to identify what was likely to be acceptable to civil law countries, rather than draft a 1 54 treaty from a US perspective only.
151 Jones, International Judicial Assistance: Procedural Chaos and a Program H. for Reform, 62 Yale L.J. 518 (1953). 152 Public Law 85-906. 153See S. Rep. 2392, 85th Cong., 2d Sess. 6-9 (U.S. Code Cong. & Ad. News, 85th Cong., 2d Sess. 5201 (1958)). Appended to this report is a statement by Loyd Wright, President of the American Bar Association, who mentions the Judicial Assistance Convention (U.S. Code Cong. & Ad. News, 85th Cong., 2d Sess. 5205 (1958)). 154 H. Jones, Commission on International Rules of Judicial Procedure 8 Am. J. Comp. L. 343 (1959). See also the First Annual Report of the Commission on International Rules of JudicialProcedure(1959), 38.
Judicial Assistance Accordingly, the legislation that resulted from the US Commission in the form of Public Law 88-619, while it reflects the principles the authors affirmed, such as direct contact between the tribunals of the requesting and requested states and the ability of the parties to serve documents or take evidence voluntarily, also contains some striking differences from the authors' views, the chief difference being that whether or not a US court provides judicial assistance under Public Law 88-619 is at its discretion.155 At a detail level, in the key report of 5 the US Commission and in the explanation of the bill it proposed, 1 6 it is difficult to discern any direct impact on the language and drafting used, or it is not acknowledged. Although, in the explanatory background to the bill, 157 there is a note acknowledging the Judicial Assistance Convention with regard to the right of the courts of the United States to provide assistance in the service of documents to international tribunals. Equal caution is required in evaluating the importance of the Judicial Assistance Convention in the process of the United States joining the Hague Conference and ratifying the Hague Service Convention. A leading jurist on this topic, in his review, conspicu8 15 ously does not mention the Judicial Assistance Convention at all. Furthermore, the United States has not joined the London Convention.159
155 156
Intel Corp. v. Advanced Micro Devices Inc., (2004) 124 S. Ct. 2466. Fourth Annual Report of the Commission on InternationalRules of Judicial
Procedure,House Document No. 88, 88th Congress, 1st Sess. 157 See notes on section 4, Fourth Annual Report of the Commission on International Rules of JudicialProcedure,House Document No. 88, 88th Congress, 1st Sess. 38, H.R. 9435, 88th Cong., 2d Sess. (1964) and also S. Rep. 1580, 88th Cong., 2d Sess. 7 8 (U.S. Code Cong., Ad. News, 88th Cong., 2d Sess. 3785 86 (1964)). 158 K. Nadelmann, The United States joins the Hague Conference on Private International Law, 30 Law & Contemp. Probs. 291 (1965). See also K. Nadelmann, The US and Hague Conferences on Private International Law, 1 Am. J. Comp. L. 268 (1952). 159 For a discussion of the reasons why the United States has not joined the London Convention see G. Zaphiriou, Harmonization of Private Rules between Civil and Common Law Jurisdictions, 38 Am. J. Comp. L. Supp. 78 (1990). Zaphirou is not in favour of the US joining the London Convention, but see the same author's earlier comments in Use of Comparative Law by the Legislator, 30 Am. J. Comp. L. Supp. 94 (1982).
Conclusion
A convention of the nature envisaged by the authors, covering civil, criminal and international proceedings, and attracting states from all parts of the globe, is highly unlikely to come about. Such a convention was always unlikely, but when you are producing a draft convention unrelated to a conference it is easier to fly a few kites. From the perspective of civil procedure, the Judicial Assistance Convention stands as a signpost, directing the way to subsequent developments, especially with regard to bridging the gap between civil and common law states, encouraging direct links between tribunals of different states and allowing as few intermediaries between them as possible. However, where the ideas of the authors have been adopted, it is often difficult to establish how much their successors looked at the Judicial Assistance Convention or whether they reached their conclusions independently. Further, those following in the same way have not been quick to follow the chief proposals suggested by the Judicial Assistance Convention, and their application to the practice of many states is still incomplete. All the same, that a body as distinguished as Harvard University took an interest in judicial assistance was not without significance. It gave a focus to, and provided a resource for, the consideration of judicial assistance both internationally and in the United States. This was especially valuable at a time when the United States stood aloof from the topic, and indeed from other areas of private international law. Today, when the organs of state of the United States are showing less interest than in recent years, the Judicial Assistance Convention stands as a symbol of commitment to judicial assistance by her citizens, professional bodies and universities. Overall, it is the lustre of the Harvard name and the reputation of the Research in International Law that will take a reader back to the Judicial Assistance Convention.
Chapter 13
NEUTRALITY
Stephen C. Neff
The Harvard draft Convention on Neutrality in Naval and Aerial War was one of the last ones concluded by the Harvard researchers.' It was drafted over the period 1935-39, with Philip C. Jessup acting as the reporter. Like all conventions, this one was inevitably a product of its time and place. The time was the aftermath of the First World War, which had subjected the traditional law of neutrality to a series of unprecedented strains. The place was, of course, the United States, which had a long and distinguished (though not unbroken) history as a champion of the rights of neutral states against the claims of belligerents and which, during its period as a neutral state in 1914 17, had been intensely involved in a number of disputes with belligerent powers over neutrality-law issues.2 The drafters had a foundation in treaty law to build on, including an array of bilateral treaties dating from the Seventeenth Century, together with a range of state practice on the subject (which was collected and published by Jessup and Francis Ddak in conjunction with the work on the Draft Convention).3 Prior multilateral treaties included the Declaration of Paris of 1856 and Hague Convention XIII of 1907 on Neutrality in Naval Warfare.4 Also of great importance was the Declaration of London of 1909, concluded by a group of ten
' 33 Am. J. Int'l L. (Supp.), 167-203 [hereinafter referred to as Draft Convention]. For the commentary on it, see id. at 204 817 [hereinafter referred to as Commentary]. See also the HarvardResearch in InternationalLaw (reprint by
W.S. Hein, 2008); and the text of the draft convention appears below as
Appendix 12. 2 For an account of these disputes, see Alice M. Morrissey, The American Defense of Neutral Rights, 1914-1917 (Cambridge, Mass: Harvard University
Press, 1939). 3 On the bilateral-treaty background, see Stephen C. Neff, The Rights and Duties
of Neutrals: A General History (Manchester: Manchester University Press, 2000), at 27-43. See also Francis D~ak and Philip C. Jessup, A Collection Neutrality Laws, Regulations and Treaties of Various Countries (Washington,
D.C.: Carnegie Endowment for International Peace, 1939).
4 Declaration of Paris, Apr. 16, 1856, 115 C.TS. 1; and Hague Convention XIII
Respecting the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 205 C.T.S. 395 [hereinafter referred to as Hague Convention].
Harvard Research on International Law major maritime powers.5 It dealt with a number of issues that had been left unresolved by the Hague Convention, chiefly comprising a range of questions about contraband, blockade and unneutral service. Although the Declaration of London failed to enter into force (because of the failure of Great Britain to ratify it), it was nonetheless widely regarded as an accurate picture of the state of the law at that time. The Harvard researchers stated that they had taken these instruments into account, while at the same time subjecting them to "a re-examination in the light of the events and practices of the World War" as well as of recent technological developments. 6 Relevant postWar developments included a set of draft rules on aerial warfare, including provisions on neutrality, drafted by a group of experts at The Hague in 1923. 7 In addition, the London Naval Protocol of 1936, which was concluded as the Harvard text was being drafted, specified that submarines were to follow the same rules of visit and search as surface vessels. 8 The Harvard researchers retained the basic framework of the law of neutrality, but they also made a number of alterations, and these will be the principal focus of this discussion. In some cases, certain marginal changes were made to the core principles of neutrality law. In other instances, the draft Convention provided solutions to unresolved controversies from the First World War. Most importantly, though, the Harvard researchers devised an innovative plan for the increased safeguarding of bona fide trade between neutral countries. This plan had several key components: a system for the advance certification of cargoes in trade between neutral states; an arrangement for the orderly fixing of import quotas for neutral countries; and the granting of increased powers and rights to belligerents with regard to the enforcement of blockades. Taken as a whole, these changes comprise a dense thicket of compromises between the interests of belligerent and neutral states. ' Declaration of London, Feb. 26, 1909, 208 C.T.S. 338.
6
Commentary, 206.
7 Hague Rules of Aerial Warfare, 17 Am. J. Int'l L. (Supp.) 245 60 (1923).
These articles were never adopted by states in the form of a binding treaty. But they were generally taken to represent an accurate picture of the law on the subject. 8 London Naval Protocol, Nov. 6, 1936, 173 L.NT.S. 353.
Neutrality It should not be thought that the Harvard researchers had anything like the last word on the subject of neutrality. Many of the issues that they touched on were later revisited by a team of experts on maritime warfare under the auspices of the International Institute of Humanitarian Law in San Remo, Italy. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, concluded by this group in 1994, represents the best picture of the current law in this area. Although that effort was not devoted to maritime neutrality per se, it dealt with many of the same questions as the Harvard draft Convention. Comparisons and contrasts will therefore be made, where appropriate, between the approaches taken by these two initiatives. 9 This discussion will first identify the way in which the Harvard researchers dealt with the fundamental principles of neutrality law, noting the modifications and clarifications that they proposed. The second section will identify certain issues which had been unresolved by the existing law, to which the draft Convention provided solutions. In the third section, the cargo-certification and import-quota systems will be explained. Finally, the enhancement of belligerents' rights in the two key areas of neutrality law general trading between neutrals and belligerents and the enforcement of blockades will be analysed. Lack of space will preclude consideration of issues of aerial warfare or of various less central issues such as unneutral service, mining at sea, the admission of prizes to neutral ports, the arrest of persons on board neutral ships and transfers of flags. Reinforcing (and Modifying) the Existing Law In many respects, the Harvard draft Convention retains the basic conceptual framework of existing neutrality law. Most notably, it reiterates the two long-established, fundamental duties of neutral states: abstention and impartiality. It also retains the principle that belligerent states are forbidden from waging war against neutral states, or from carrying on hostilities either in or from neutral terr-
9 See Louise Doswald-Beck (ed.), San Remo Manual on InternationalLaw Applicable to Armed Conflicts at Sea (Cambridge: Cambridge University Press,
1995) [hereinafter referred to as San Remo Manual]. For the best treatment, in English, of the substantive law of maritime neutrality as such, see Robert W.
Tucker, The Law of War and Neutrality at Sea (Washington, D.C.: GPO, 1957).
Harvard Research on International Law itory. At the same time, however, the Harvard researchers made some modifications in these areas.
The fundamental duties of neutral states

At the hands of the Harvard researchers, the two fundamental neutral obligations of abstention and impartiality were consciously "couched in much broader terms" than had previously been the case.10 Impartiality, for example, is stated to be required across the entire range of neutral rights and duties.11 The Hague Convention, in contrast, had stated the principle only in the context of rules on the admission of belligerent warships and prizes to neutral ports. 12 On the whole, however, effect of the Harvard draft Convention was actually to grant greater latitude to neutral states with regard to the impartiality duty than many had previously supposed. This is because the Convention expressly specified (albeit in the commentary rather than in the text of the articles) that the basic duty of impartiality is to be regarded as "technical rather than ...factual" in character. 13 This means that neutral policies must be even-handed on their face, but not necessarily equal in their material impact. This had been a vigorously debated point during the First World War. The most urgent specific question in this area was whether neutral countries are allowed to enact new measures after the commencement of a war. Some lawyers had misgivings about this, on the thesis that any such new rules are bound to operate, in practice if not on their face, more to the advantage of one belligerent than another, and thereby inevitably to breach the principle of impartiality. The Harvard researchers dealt explicitly with this issue by permitting the adoption of such new rules, but subject to a key proviso: that any such new measures must be "for the purpose of better safeguarding [the] rights and interests" of the state as a neutral, or of "better fulfilling its duties as a neutral." 14 Any such new measures must, of course, be even-handed on their face as between the belligerents although here too, the required even-handedness is seen as being technical rather 10 Commentary, 233. 1Draft Convention, art. 4. 12 Hague Convention, art. 9. 13 Commentary, 234. 14 Draft Convention, art. 13.
Neutrality than factual in nature (i.e. the measures must be non-discriminatory on their face, even if their practical impact on the belligerents is 5 unequal). The other fundamental neutral duty of neutrals-abstention from involvement in the conflict-is similarly stated in broader terms in the Harvard draft Convention than in the predecessor treaties. The Hague Convention required neutral countries (i.e. governments) to refrain from supplying "war material of any kind whatever" to belligerent parties.16 The Harvard draft Convention is more sweeping, in forbidding neutral states from supplying any and all forms of "assistance for 1 the prosecution of the war." 7 In this area of abstention, the Harvard draft Convention is rather more restrictive than the prior law, although not radically so. This is most evident with regard to the rules on the sorts of hospitality which neutral states are allowed to extend to belligerent ships. Upon the outbreak of a conflict, belligerent warships must leave neutral territory within twenty-four hours. 'sThe Hague Convention permitted neutral states to allow a longer stay. 19 A similar twenty-four limit is required for warships calling in neutral ports during the war. 20 Here too, the Hague Convention allowed neutral states to fix a longer period. 21 The San Remo Manual, it may be noted, adopts the stricter approach of the Harvard researchers.2 2 The Harvard draft Convention also sets somewhat tighter rules than the Hague Convention did with regard to the amount of provisions and fuel that belligerent warships can take on in neutral ports. The Hague Convention permitted sufficient fuel to be taken on to enable the ship to reach its nearest home (or allied) port; and it allowed the replenishment of provisions up to the "peace standard" (i.e. the quantity of supplies that it would be allowed to take on, in the absence of a war).23 The Harvard draft Convention, in contrast, allows
15
Commentary, 316.
16 Hague Convention, art. 6.
Draft Convention, art. 5. " Id., art. 32.

17
19 20 21 23
Hague Convention, art. 13.

Hague Convention, art. 12. Hague Convention, art. 19.
22 San Remo Manual, para.
21.
Harvard Research on International Law no fuel to be taken on; and it restricts provisioning to the amount sufficient to take the belligerent ship to its nearest home (or allied) 4
port.
2
The fundamental duties of belligerent states The fundamental legal duties of belligerents may be said to be two in number: first, a duty to refrain from taking hostile action against neutral countries or from conducting hostile operations on or from neutral territory; and second, a duty to permit neutral countries to trade with one another and also with the enemy, subject to the very important principal exceptions of contraband trading and blockade violation. Regarding respect for neutral territory, the Harvard researchers made no important change from the existing law, confining their alterations to matters of detail and formulation. For example, instead of barring hostile operations in the "territorial waters" of neutral countries, as the Hague Convention had provided, the Harvard draft Convention, in its corresponding provision, bars such actions from taking place "so near to the territory of a neutral State as to endanger life or property therein., 25 The reason for the modified wording was simply the inability of states, by 1939, to arrive at an agreed definition of "territorial waters." No alteration in principle was intended.26 Regarding the second category of belligerent duties to respect the right of neutral states to trade with one another and with the enemy the Harvard researchers made some very significant changes. Before turning to these, it is well to take note of various outstanding issues to which the Harvard draft Convention proffered answers. Resolving Some Outstanding Questions The draft Convention deals with several matters that had been the subject of considerable debate during the First World War, generally in connection with the so-called "long-distance blockade" mounted by the Allied powers. It is noteworthy that, in practically all of these cases, the Harvard researchers adopted the positions taken by the
24 26
Draft Convention, art. 36. Commentary, 348.
25Hague Convention, art. 2; and Draft Convention, art. 18.
Neutrality American government. Some of the situations are also covered by the San Remo Manual of 1994, sometimes with different results. One matter which had caused a good deal of friction during the First World War was the diversion of neutral ships into belligerent ports for the purpose of visit and search. Britain had insisted that diversion was permissible because of the practical unfeasibility of adequately searching large ships at sea. The Americans, just as insistently, maintained that visit and search could only take place on the high seas. The draft Convention adopted the American position, allowing neutral ships to be taken to belligerent ports only for the purpose of prize adjudication, not for mere search.2 The San Remo Manual, however, allows more latitude to belligerents on this score, permitting diversion if visit and search on the high seas are "impossible or unsafe. 2 8 More was at stake in this controversy over diversion than the inconvenience to the neutral vessels of being taken out of their intended physical route and subjected to delay. Once a neutral ship was in a belligerent port, it became subject to the sovereign jurisdiction of the belligerent power. Britain sometimes made use of this sovereign power to requisition neutral vessels for its war effort, with the approval of its prize courts. 29 The Harvard draft Convention prohibits this practice, allowing a neutral vessel to be requisitioned 0 3 only if it enters belligerent territory voluntarily. A particularly important issue concerned situations in which reprisals taken by one belligerent against another have ancillary effects on neutrals. British prize courts during the War had permitted this, holding that a belligerent state could take reprisals against its enemy even if some degree of incidental prejudice, or collateral injury, befell neutrals. In such cases, the affected neutrals must simply sustain their loss without redress.3 1 The text of the Harvard draft Convention is less than clear on this point. It states, rather elliptically, that, when taking a reprisal against its enemy, a belligerent must
Draft Convention, arts. 49(3) and 61(3). San Remo Manual, para. 121. See The Zamora, [1916] 2 A.C. 77. Draft Convention, art. 21. It may be noted that neutral aircraft are wholly
27 28 29 30
exempt from requisition. Id., art. 101. 3'For the leading case, see The Stigstad, [1919] A.C. 279.
Harvard Research on International Law "respect" the rights of neutral states. 32 From the commentary, though, it is clear that the intention of the drafters was that reprisal measures by one belligerent against another should have no collateral effect on neutrals.3 3 The San Remo Manual does not deal with the issue, which should therefore probably be regarded as an unresolved question of, potentially, very great importance to the present day. A notable innovation of the Harvard draft Convention concerned the vexed question of the deceptive use of neutral flags by belligerent merchant ships, as a device to evade capture another topic that had given rise to serious acrimony between the United States and Britain during the First World War. The draft Convention, once again taking the American position, forbids any "display" of a neutral flag by belligerent merchant ship.34 On this subject too, however, the present law remains in a state of uncertainty. Protocol I of 1977 (to the Geneva Conventions of 1949) carefully leaves the question open. While generally prohibiting the use of neutral flags by belligerents, the Protocol also pointedly disclaims any intention of altering "existing generally recognized rules of international law applicable to ... the use of flags in the conduct of armed conflict at sea" whatever those might be. 35 The San Remo Manual similarly fails to resolve the question, as it deals only with the use of neutral flags by belligerent warships-and even then, it only bars "launching an attack" while feigning neutral status (an act which it characterises as perfidy). 36 It contains no provision on the use of a neutral flag by belligerent merchant vessels as a shield against capture. Trade between Neutral Countries: The Certification and the Import Quota Systems One problem above all others attracted the detailed attention of the Harvard researchers: belligerent interference with trade between neutral countries. This had been one of the most innovative, and controversial, developments of the recent war-perhaps the single most
Draft Convention, art. 23. 33 Commentary, 392 419. 34 Draft Convention, art. 20. 35 Protocol I to the Geneva Conventions of 1949, June 8, 1977, 1125 U.N.T.S. 3,
32
art. 39(1) and (3). 36 San Remo Manual, para. 111.
Neutrality contentious aspect of the so-called "long-distance blockade" policy of the Allied powers. In its essence, this controversy may be very briefly summarised. A fundamental principle of neutrality law is that neutral countries are free, during wartime, to trade with one another in absolutely any goods that they mutually decide on. In practice, however, belligerent powers sometimes suspect that war-related materials (i.e. contraband of war) which are being taken from one neutral port to another are, in reality, intended to be re-exported from the neutral destination onward to the enemy. The fear, in other words, is that the neutral country is not the true or ultimate destination of the goods, but is instead functioning as a mere way-station or "pipeline" for the transhipment to the enemy. During the First World War, the Allied powers had been concerned that contraband material that was shipped to various neutral countries in continental Europe, such as the Netherlands, Switzerland or the Scandinavian countries, was actually destined for onward transfer to the Central powers. To deal with this problem, the Allies devised two main policies: the application of a doctrine known as the continuous-voyage principle; and the imposition of rationing regimes. Each of these calls for a brief explanation. The essence of the continuous-voyage principle is simple. Belligerent prize courts treat what are ostensibly two separate transactions-the voyage from one neutral state to the neutral pipeline country, and the voyage from the neutral pipeline state to the enemy belligerent-as being, in substance, one single integrated continuous voyage from the original neutral exporting state to the enemy. On this thesis, the contraband goods in question become subject to capture at any time in the two-stage process. In particular, they can be captured during the first stage of the voyage, whilst en37 route from the original exporting state to the neutral pipeline country. The continuous-voyage principle had first been applied to contraband of war by prize courts of the United States during the American Civil War.38 The practice was controversial, but it won at least the partial endorsement of the drafters of the Declaration of
37
For a thorough-going history of the continuous-voyage doctrine, see Herbert
W. Briggs, The Doctrine of Continuous Voyage (Baltimore: Johns Hopkins University Press, 1926). 38 See the leading case of The Peterhoff 72 U.S. 564 (1867).
Harvard Research on International Law London. The Declaration permitted the application of the continuousvoyage principle to absolute contraband cargoes. 39 By absolute contraband was meant goods that are useful solely for war-prosecution purposes, such as arms and ammunition. The continuous-voyage principle could not be applied, however, to what was called conditional contraband (meaning, in essence, dual-use goods, which had both war-related and peaceful uses). 40 During the First World War, however, the Allied powers effectively subverted this distinction by the simple, but highly effective, device of vastly expanding their lists of goods deemed to qualify as absolute contraband with the obvious, and intended, result that a far larger range of items could be caught by the continuous-voyage principle than had been envisaged 4 when the Declaration of London was drafted. 1 The second, and related, stratagem devised by the Allied powers to deal with the problem of the re-export of goods to the enemy was, in effect, to 'ration' the supply of goods to neutral countries bordering on the enemy states. This was done in cases in which the Allied power suspected that the neutral countries were importing contraband goods in quantities significantly in excess of their "normal" requirements. The suspicion, of course, was that the excess materials were being sent on to the enemy. The solution was for Allied prize courts to condemn cargoes of goods that were deemed to be in excess of the neutral states' needs for normal domestic consumption-without requiring evidence of the existence of an actualplan to effect such reexporting. 42 A key advantage of this rationing policy, to the Allies, was that the determination of the normal needs of the neutral countries was made unilaterally by the prize courts of the belligerent states. The neutral countries were simply left to make the best of their lot. In order to deal with these two major strategies for belligerent interference with trade between neutral countries, the Harvard researchers devised two major innovations which, in combination, were to operate as a kind of grand compromise or equilibration between the
39 Declaration of London, art. 30.
40
Id., art. 35. There was a marginal exception here, allowing the continuous-
voyage doctrine to be invoked if the enemy country was landlocked. Id., art. 36. 41 On the employment of the continuous-voyage doctrine during the War, see Briggs, Continuous Voyage, at 107 21. 42 See The Kim, [1915] Prob. Div. 215.
Neutrality legitimate, but rival, interests of belligerents and neutrals. The first of these was a certification system, designed as a substitute for the continuous-voyage doctrine. The second was an import-quota system, which would be a substitute for the Allied rationing policy. The certificationsystem The basic purpose of the certification system is to ensure that belligerent countries could have a credible guarantee from the government of the neutral country that the whole of a ship's cargo, upon arrival at its neutral destination, will remain in the importing state and will not be re-exported to the territory of the opposing belligerent. With such an advance guarantee in place, there will be no need for belligerent prize courts to apply the continuous-voyage doctrine. Certified cargoes will simply be allowed to pass without let or hindrance. The envisaged procedure is simple, at least in principle. Certification of a ship's cargo will be permitted if various criteria are met, the most important of which is that the whole of the cargo is destined for consumption in neutral country of destination. 43 A certificate to that effect is to be issued by the government of the neutral state from which the ship sails, confirming the name, flag and ownership of the vessel and the cargo, as well as the correctness of the ship's manifest, crew list and passenger list, and also including a statement that the ship will call only at specified neutral ports. 44 The ship is to carry this certificate. It is also to be painted in a prescribed and distinctive manner, to ensure that it will be identifiable from a distance as a certified vessel. Its hull is to be painted in vertical stripes, of the issuing state's national colours; and its deck similarly painted with stripes for visibility from the air.4 5 Certification is to be on a voyageby-voyage basis. A critical element of the scheme is that belligerent powers are given "an opportunity to participate in the supervision" of the loading of the vessel. 46 If a belligerent state believes that the process is being misused, it can apply to a tribunal in the exporting country, for an
43 Draft Convention, Annex II, rule 3, which lists seven criteria. 44 d., Annex II, rule 6(d). 45 Id., art. 44.
46
Id., Annex II, rule 2(c).
Harvard Research on International Law order restraining the issuance of the certificate or the clearance of the suspected vessel. 47 It can take similar action in the country of destination, on the presentation of "primafacie evidence that the certificate has not been properly issued." The neutral state of destination must then permit representatives of the complaining belligerent "to supervise the unloading of the cargo" and to "examine" whatever portion of the cargo is suspected of being improperly certified.48 If there is disagreement between the belligerent and the neutral authorities as to the correctness of the certification, the belligerent can take the question to the courts of the neutral importing state, which must impound the suspected goods pending a final decision.4 9 In these proceedings, the neutral country of origin (i.e., the one that had issued the contested certificate) has a right to be heard. This certification arrangement has clear advantages for both belligerent and neutral states. The belligerent receives an assurance that the certified goods will not find their way into the hands of its enemy. The neutral is spared the delays and uncertainties consequent upon capture and prize adjudication. Strictly speaking, certified vessels remain subject to the normal belligerent right of visit and search on the high seas; but the anticipation clearly is that, in practice, belligerents will have no incentive to bother to exercise the right in respect of certified ships. 5 1 Certified ships can, however, become legally exempt from visit and search if they sail under convoy (i.e., under the escort of a warship of a neutral country).5 2 Uncertified vessels are not accorded this right of neutral convoy.5 3 Cargoes which do not qualify for certification will, of course, be subject to visit and search on the high seas by belligerent warships in the usual manner; and contraband-quality goods may be captured and condemned by application of the continuous-voyage doctrine.54 There
M., Annex II, rule 10(a) Id., Annex II, rule 10(b). 49 Id., Annex II, rule 10(c). 50 d., Annex II, rule 10(d). 51 Commentary, 535. 52 Draft Convention, arts. 43, 56 58. 13 The Declaration of London had granted the right of neutral convoy to all neutral merchant ships. Declaration of London, arts. 61 62. 54 Draft Convention, art. 63(e).
47
48
Neutrality will be more detailed discussion of the position of uncertified vessels in due course. The drafters of the San Remo Manual looked with favour on the idea of a certification system, although, unlike the Harvard researchers, they did not make detailed provision for one. Neutral states are, instead, simply "encouraged" by the Manual, in very general terms, to establish "reasonable control measures and certification procedures to ensure that their merchant vessels are not carrying contraband."5 5 The Manual does, however, recognise the right of neutral convoy (as did the Declaration of London).5 6 Arrangementsfor import quotas The second major innovation of the Harvard researchers was the devising of a cooperative arrangement for the setting of import quotas. This was thought to be necessary, at least in some cases, to deal with shortcomings in the certification system. The crucial feature of the import-quota system is that the quotas will not be imposed unilaterally by the belligerents (as had occurred during the First World War), but instead will be determined by an impartial body. The first step in the process is a "demand" by the belligerent country that a given neutral state publish information on any war-related goods that are being imported "in amounts exceeding normal peace time [levels]." 5 If the neutral country denies that any of its imports fall into this category, then the question is to be determined by a threeperson arbitral board. This board will contain one representative from the neutral state, one from the belligerent and a third member chosen by those two (or selected by the President of the Permanent Court 58 of International Justice in the event of disagreement between the two). If this arbitral board finds the suspicions of the belligerent state to be well founded, then the board will be entitled to fix a quota of imports of the goods in question into the neutral country, based on the average level of imports of the materials in question over the five-
55 San Remo Manual, para. 124. 56 Id., para. 120; and Declaration of London, 57 Draft Convention, art. 47(1) and (2). 58 Id., art. 47(4).
arts. 61 62.
Harvard Research on International Law year period preceding the war.5 9 The neutral country will then be allowed to import goods in excess of the assigned quota only if it gives "satisfactory assurance" that these over-quota goods "will be placed under the control of a governmental agency which will provide adequate safeguards against the export of that commodity., 60 Otherwise, any goods shipped to it in excess of the quota are subject to 61 capture and condemnation in prize proceedings.
"Paying" for "Privileges": Alterations in the Law of Contraband and Blockade

The cooperation by belligerent countries in the certification and the import-quota systems should not be seen (as if there were any danger of that) as acts of pure benevolence on their part, or as any concession that totally unimpeded trade between neutral states in time of war is an inherent right. On the contrary, belligerent states would more probably regard the certification system as a surrender on their part of certain rights which are their entitlement under prevailing international law. For surrendering these rights or at least for
refraining from exercising them belligerent countries would be
expected to receive something in return. The "something" in question, in the eyes of the Harvard researchers, is a series of alterations of traditional neutrality law, in favour of belligerent interests, in the two crucial areas: general neutral trade with belligerent states; and the enforcement of blockades. A brief explanation of each of these is in order. Neutral trade with belligerents-the right of
pre-emptive purchase
One of the most striking changes made by the Harvard draft Convention in the existing law although not one that the drafters highlighted with any great clarity was the effective abrogation of one of the most venerable of all neutral rights: the right of neutrals to trade freely with belligerent countries, subject to the two major excep59 Id., art. 45(5); and Annex III, rules 1 3. Alternatively, the Draft Convention
provides for the conclusion of an agreement on quotas. This had been done on a
number of occasions during the First World War. 60 d., Annex 111, rule 4.
61 Id.,
art. 63(f).
Neutrality tions of contraband of war and trade with blockaded areas. To see how this change operates, it is helpful to consider first the situation of direct trade between a neutral state and a belligerent one, and then the case of the carriage of uncertified cargoes from one neutral state to another. First, then, regarding direct trade between a neutral state and a belligerent one. Such trade is not eligible for certification. If the traditional law were to apply, then the rule would be that contraband both absolute and conditional could be captured and condemned; while non-contraband goods would be allowed to proceed. The Harvard researchers elected to make a significant change here. The draft Convention rule is that all of this direct trade can be stopped. There will still be a difference in treatment, though, between contraband and non-contraband goods. Contraband materials will be subject to condemnation (i.e. to confiscation pursuant to prize-court proceedings, without compensation to the owners).62 In this regard, there is no change from the existing law. Non-contraband items, however, will not be allowed to proceed. Instead, they too will be subject to capture but instead of being condemned, they will be subject to the lesser "penalty" of pre-emptive purchase by the belligerent captor. That is, the belligerent must pay the market value of the goods, plus a 63 premium often per cent. In the application of this policy, contraband is to consist, in effect, only of absolute contraband.6 4 The concept of conditional contraband is altogether discarded by the draft Convention.6 5 The result, therefore, is that there are both gains and losses to neutrals from the draft Convention approach. Regarding absolute contraband, the position is the same as in the traditional law (i.e., condemnation). Regarding conditional contraband, neutrals receive a benefit. Where previously, it had been subject to condemnation, now it is only subject to the lesser measure of pre-emptive purchase. Regarding non-contraband goods, however, the position of neutrals is significantly worse than
62
63
64
Id., art. 63(e). Id., art. 63(h). The Draft Convention pointedly eschews even the use of the term "contra-
band," referring instead to "arms, ammunition or implements of war." The commentary makes clear, however, that this expression is meant to be essentially similar to the traditional concept of absolute contraband. Commentary, 631, 796. 65 Id., at 498.
Harvard Research on International Law before: where previously, such goods had been free, they are now subject to pre-emptive purchase. The net effect, therefore, is that the draft Convention deprives neutrals of their traditional right to carry non-contraband goods to belligerent countries. Now, consider the position of uncertified cargoes carried from one neutral state to another. Here too, there is an important distinction between contraband and non-contraband goods. Contraband items can be captured and condemned, if the belligerent establishes that they are actually destined for re-export to the enemy i.e. contraband goods can be condemned on the basis of the continuous-voyage principle. This represents no change from the traditional law. Regarding noncontraband materials, however, there is a major change. These are now to be subject to pre-emptive purchase, if they are being carried to "a neutral port affording convenient access to belligerent territory. '' 66 It should be carefully appreciated that the belligerent does not need to prove that there is any intention actually to re-export the goods to the enemy. The mere fact that the neutral port of destination affords "convenient access to belligerent territory" will suffice. The commentary refers to this policy, rather disingenuously, as "an adaptation of the doctrine of continuous voyage." 6 The reality is that it is effectively a policy of dispensing with the continuous-voyage doctrine, in favour of a general right of pre-emption. It is slightly odd that, in the case of contraband-the goods of the greatest concern to belligerents-the captor has a higher burden of proof. It must establish an actual intention to re-export to the enemy. In the "lesser" case of non-contraband goods, however, no such intention need be established (as just observed). One explanation is that the "penalty" is greater in the case of contraband condemnation as opposed to pre-emptive purchase so that a higher standard of proof might reasonably be called for. In addition, it may be noted that this arrangement gives the belligerent captor a certain incentive "voluntarily" to resort to the lesser measure of pre-emptive purchase, so as to take the benefit of the lower proof requirement. The position on neutral trade in war, under the Harvard draft Convention, may therefore be succinctly summarised as follows:
66 67
Draft Convention, art. 63(h). Commentary, 635.
Neutrality
(a) Certified cargoes which, by their nature, will always have a neutral destination are safe from capture. (b) All cargoes carried directly to belligerent territory-which, by their nature, are not eligible for certification-are subject to capture. Goods which fall into the category of contraband (i.e., absolute contraband) can be condemned. Non-contraband goods must be pre-emptively purchased. (c) Uncertified cargoes carried to a neutral country and comprising contraband can be condemned, by application of the continuous-voyage doctrine. The belligerent must establish, in prize-court proceedings, that the items are actually intended for re-export to enemy territory. (d) Uncertifiedcargoes carried to a neutral country and consisting of noncontraband goods can be pre-emptively purchased, ifthe neutral port of destination affords "convenient access to belligerent territory." There is no need on the belligerent's part to establish an actual intention to reexport. (e) Uncertified cargoes carried to a neutral country that does not afford "convenient access to belligerent territory" are not subject to capture.
Of these, (c) and (e) basically represent pre-draft Convention law or practice. The others are innovations. The drafters of the San Remo Manual followed their Harvard predecessors in this area in one respect: in discarding the distinction between absolute and conditional contraband. The resemblance between the two approaches, however, is only superficial. The Harvard
researchers (as noted above) in effect define "contraband" as comprising only absolute contraband. The San Remo Manual, in contrast,
defines contraband as "goods... which may be susceptible for use in armed conflict. '6 It therefore, in effect, regards contraband as encompassing both absolute and conditional contraband, subjecting both to condemation in the traditional way, including the use of the
continuous-voyage doctrine. 69 The San Remo Manual, however, does
not provide for pre-emptive purchase of non-contraband cargoes, as the Harvard draft Convention does.
68 69
San Remo Manual, para. 148. The San Remo Manual allows the continuous-voyage doctrine to be applied to
contraband in a somewhat indirect manner, by including in the definition of "contraband" the requirement that the goods be "ultimately destined for territory under the control of the enemy." Id., para. 148.
Blockade
In the area of blockade, the basic policy of the Harvard draft Convention is to expand the rights of belligerents beyond those allotted by the pre-existing law. The commentary confirms this by candidly stating that the broad intention is to "compensate belligerents, for reducing their rights in regard to the visit and search of certified vessels .. .by allowing them considerable latitude in the establishment and enforcement of blockades. 70 Specifically, belligerents are given enlarged rights in two important (and controversial) respects: first, by expanding the geographical area in which captures can be effected; and second, by allowing the application of the continuous-voyage principle to blockade. Each of these calls for a brief explanation. The question of where captures for blockade violation can be made had been the subject of vigorous dispute amongst lawyers for a long time. Continental European lawyers traditionally maintained that captures can only be effected at the line of the blockade-i.e. as the neutral ship is in the act of physically penetrating the barrier of ships maintaining the blockade. British and American lawyers, on the other hand, tended to hold that captures can be made anywhere, provided only that it is clear that the neutral ship is, at the time of capture, en route to the blockaded area. The British and American view, in other words, allows for a kind of pre-emptive capture of would-be blockade runners. This is sometimes referred to as the "intention doctrine," on the thesis that the essence of the offence of blockade violation is the intention of the ship eventually to run the blockade. The intention doctrine had the support of British and American prize courts as well as of commentators.7 1 The Declaration of London struck a sort of balance between the two positions, by providing, admittedly somewhat vaguely, that captures could be made "within the area of operations" of the blockading squadron.72 This allowed some latitude for ships of the blockading squadron to make captures away from the line of the blockade. But it clearly amounted to a rejection of the full-blooded
70
Commentary, 735.
71See The Columbia,
1 C. Rob. 154 (1799); and The Circassian, 69 U.S. 796 (1865). 72 Declaration of London, art. 17.
Neutrality intention doctrine, which would have allowed capture at any point in the voyage of the neutral ship. The Harvard draft Convention alters this position, in favour of the belligerent and in the direction of the Anglo-American view, in two important ways: by allowing the establishment of belligerent "blockade zones," and by endorsing the intention doctrine. First, concerning blockade zones. The draft Convention permits belligerents to establish such zones extending for a distance of up to fifty miles from the coastline of the blockaded area. The mere presence of a neutral ship this zone will give rise to a rebuttable presumption of intention to breach the blockade.74 Far more significant (at least potentially) is the draft Convention's straightforward adoption of the intention doctrine, by allowing the capture of a neutral ship for blockade violation "at any time during the vessel's voyage to or from a port ... against which a blockade existed at the time when the vessel commenced its voyage. 75 The practical impact of the draft Convention, then, is that a neutral ship bound for a blockaded port will be good prize from the moment that it sets sail for the blockaded port although the captor will have the normal burden of proving the intended destination until the ship enters a blockade zone. At that point, the task of the captor becomes easier because it then acquires the benefit of a rebuttable presumption of intention to violate the blockade. The draft Convention therefore provides a certain incentive for the blockading power to hold off from reliance on the intention doctrine, so as to gain the benefit of the presumption once the blockade zone is entered. The second major respect in which the belligerent right of blockade is expanded by the Harvard researchers is by allowing the continuous-voyage principle to be applied to blockade. 76 The basic idea is the same as that discussed above in the context of contraband. It concerns the situation in which a neutral ship is sailing first to Port A, a neutral port, and then to Port B, which is under blockade. The continuous voyage principle enables a prize court to regard these "two" voyages as being, in substance, a single continuous voyage.
73 Draft Convention, art. 69.
74 76
Id., art. 63(c).
75Id., art. 8 1.
As noted above, the Draft Convention obviates the need to apply the continuous-voyage principle to contraband.
Harvard Research on International Law The consequence is that, when this principle is combined with the intention doctrine, a neutral ship becomes good prize from the commencement of the voyage-even if, at the moment of capture, it is en route proximately to neutral Port A rather than to belligerent Port B. This doctrine was first applied by the United States prize courts during the American Civil War.7 7 The immediate result was a loud and widespread protest from international lawyers, on the ground that it amounted to a huge expansion of the traditional belligerent right of blockade enforcement. The doctrine was roundly condemned in 1883 7 by a panel of the Institute of International Law. 8 It was also forthrightly rejected by the Declaration of London, which provided that, "[w]hatever may be the ulterior destination of a vessel or her cargo, she cannot be captured for breach of blockade, if, at the moment, she 79 is on her way to a non-blockaded port.", The Harvard draft Convention reverses this stance and allows the application of continuous voyage to blockade. Admittedly, it does so in somewhat opaque and cautious language, by stating simply that "[c]argo destined for a blockaded port by sea" is good prize.8 Nor, interestingly, is the commentary very forthcoming on this point. Nevertheless, this provision has two very important effects. One is (as just explained) to endorse the continuous-voyage principle, by allowing condemnation if the cargo is "destined" for the blockaded areai.e., by not requiring it to be destined proximately for the invested area. The second important effect of this provision is that it makes the law of blockade applicable to cargoes, independently of ships. This is contrary to the traditional view of blockade, which regarded blockade violation as an "offence of the ship," i.e. as a wrongful act committed by a vessel. It is true that the cargo will typically be good prize as well, but only as a consequence of its presence on the ship. The effect of the draft Convention is that a cargo that is intended to be transferred from one ship to another prior to the actual running of the
77 For the leading case, by the U.S. Supreme court, see The Springbok, 72 U.S.
480 (1867). 78 7 John Bassett Moore, A Digest of International Law (Washington, D.C.: GPO, 1906), 731 32. Strictly spealing, of course, this "doctrine" is really two doctrines combined: the intention doctrine plus the continuous-voyage principle. 79 Declaration of London, art. 19.
80
Draft Convention, art. 63(b).
Neutrality blockade can be condemned on its own, before it is even placed onto the blockade-running craft. The net effect, then, of the Harvard draft Convention's approach to blockade is to expand the rights of blockading powers, at the expense of neutrals, in four important respects: first, by allowing the establishment of blockade zones; second, by endorsing the intention doctrine, thereby allowing captures to be made throughout the voyage of the neutral ship; third, by adopting the continuous-voyage principle, thereby allowing ships to be captured when they are en route, proximately, to neutral ports; and fourth, by applying the law of blockade to cargoes separately from ships.8 1 Considering how vehement and widespread the objections to this policy had been, it is perhaps not surprising that the Harvard researchers refrained from highlighting it too conspicuously. But if their intention was to expand the rights of blockading states beyond the traditional law-as it avowedly wasthen they succeeded spectacularly. Conclusion In its various alterations to the existing law of neutrality, the Harvard draft Convention comprises a rich blend of gains and losses for both belligerent and neutral countries, as compared to the preexisting law of neutrality. A balanced assessment would look something like the following. Neutrals may be said to have gained in the following notable ways: (a) The duty of impartiality is said to be only "technical" in character,
meaning that measures adopted by neutral states need only be evenhanded on their face, not in their material effect. The right to change
regulations during a war is expressly recognised. (b) The diversion of neutral ships from the high seas into belligerent ports for visit and search is prohibited. (c) The requisitioning of neutral ships brought involuntarily into neutral ports is prohibited. (d) Belligerents are barred from making use of neutral flags as a shield from attack, thereby giving belligerents maximum confidence in the sanctity of neutral flags.
81 The
Springbok case provides a neat illustration of the second, third and fourth of these elements in combination.

(e) Neutrals are protected against incidental impacts from reprisal measures taken by one belligerent against another. (f) A certification system enables bona fide trade between neutral countries to proceed with minimum interruption. (g) The right of neutral convoy is recognised, for certified vessels. (h) When import quotas are implemented, they will be devised by an impartial arbitral board upon a showing of good cause, and not by the belligerent states unilaterally. (i) Conditional contraband is no longer subject to condemnation, but instead to the lesser measure of pre-emptive purchase. Belligerent states may be said to have improved their positions in the following ways: (a) Neutrals are no longer free to carry non-contraband goods to enemy territory. Such goods are now subject to capture and preemptive purchase. (b) The certification system (if it works effectively) guarantees that certified cargoes taken to neutral countries will not be re-exported to the enemy. It also provides a clear means of identifying such cargoes, thereby obviating the need for visit and search or for prize-court proceedings in connection with them. (c) Uncertified cargoes of non-contraband goods carried to a neutral port can be captured and pre-emptively purchased merely on the showing that the port of destination affords ready access to enemy territory. There is no need to apply the continuous-voyage doctrine in this regard (i.e. no need to prove an actual intention to re-export). (d) Rationing systems are permitted, though subject to participation by the neutral powers affected by them. (e) The intention doctrine may be applied in the law of blockade, to allow the capture of blockade-running vessels at any point in their voyage. (f) Blockade zones may be established up to fifty miles from an invested area. The presence of an uncertified neutral ship in the zone will give rise to a rebuttable presumption of blockade violation. (g) The continuous-voyage principle is applicable to blockade, allowing captures for blockade violation of ships sailing between one neutral port and another (provided that there is an intention eventually to violate the blockade). (h) The law of blockade is applicable to cargoes independently of ships.
Neutrality It may be wondered whether, on the whole, belligerents or neutrals would receive the greater nourishment from this succulent smorgasbord of innovations. Without being able to assess the working of the draft Convention system in practice, any answer to this question is necessarily speculative. Bearing that in mind, it is (cautiously) suggested that, if the certification system were to work as planned, then belligerent states would probably have a net improvement in their position because they would be able to cut off all trade between their enemies and the outside world. Certified goods could be trusted to remain in the neutral countries to which they were delivered, without being re-exported to the enemy. And all uncertified goods become subject to either condemnation or pre-emptive purchase, whether they are en route directly to enemy territory or merely to nearby neutral ports. In addition, belligerent states gain significantly greater powers to enforce blockades as compared to the existing law. Armed with these very significant advantages, belligerent states probably lose comparatively little by being barred from diverting uncertified neutral ships into their ports for visit and search. They also lose little by conceding the right of neutral convoy to certified vessels. That right will actually be of no great value, since certified ships are safe from capture in any event, even sailing on their own. At the same time, the value to neutrals of the certification system should not be underestimated. By resolving in advance the potentially thorny question of whether goods taken to neutral destinations might be re-exported to belligerent territory, the certification process will spare neutral ships the significant burden of undergoing visit and search, capture and litigation in prize courts. The right to participate in the design of rationing systems is also a significant boon to neutral countries. So is protection from collateral effects stemming from belligerent reprisal measures. A final word is in order regarding the longer-term impact of the draft Convention on Neutrality. This has been very slight, largely because of the fact that the draft Convention sought to make so large a change in the pre-existing law. Most of the other Harvard draft Conventions, in contrast, were oriented more heavily towards codifycation than towards large-scale reform of the law. The other Harvard Convention which shared this feature was the one on the Rights and Duties of States in Case of Aggression, which proposed a fundamental change in the existing law, chiefly in the form of systematic
Harvard Research on International Law discrimination against aggressor states in favour of victim countries with regard to the law of armed conflict and neutrality. The policies set out in this Convention on Aggression, however, did win acceptance from the international community, at least to a significant extent. This occurred first in the form of the American policy of "nonbelligerency" in 1939-41 (i.e. of partiality in favour of the Allied side in the Second World War, but stopping short of actual participation in the conflict), and later in the UN Charter, with its requirement of partiality by UN member states in 82 cases in which the organisation itself engages in enforcement action. The draft Convention on Neutrality, in contrast, has had far less impact on state practice over the years. This is largely because the menu of changes to the existing law of neutrality amounted (as described above) to a massive reconstruction of the law in that area. Moreover, the various changes constituted, in effect, an elaboratebut also delicate-"package deal," with losses of certain traditional rights in some areas being carefully offset by gains in others, and vice versa. For this very reason, the draft Convention on Neutrality has proved impossible to implement on a piecemeal or incremental basis. In this regard, the draft Convention foreshadowed the UN Law of the Sea Convention of 1982. The Harvard draft Convention on Neutrality is therefore best regarded not as a codification (with marginal alterations) of existing law, but rather as a blueprint-and a bold and comprehensive one at that-for a large-scale effort in international legal engineering. Whether the world would actually be better or worse off if the vision of Professor Jessup and his fellow scientists were actually to be implemented is a matter on which opinions will inevitably differ, with varying degrees of vigour.
82
On the American "non-belligerency" policy of 1939 41, see generally Donald
F. Drummond, The Passing of American Neutrality 1937 1941 (Ann Arbor: University of Michigan Press, 1955). On the duty of UN member states to assist the UN side in an armed conflict, see U.N. Charter, art. 2(5).
Chapter 14
RIGHTS AND DUTIES OF STATES IN CASE OF AGGRESSION

Elina Steinerte and Rebecca M.M. Wallace
The draft Convention on the Rights and Duties of States in Case of Aggression' first saw the light of day in October 1939, about a month after the outbreak of World War II. The authors of the draft Convention, the Harvard Research in International Law, were careful to emphasize that the consideration of the subject matter was started in 1935 and was largely completed by 1939. Thus, the Draft Convention was not to be attributed to international events of that period. The timing could not have been more symbolic: on the one hand, the horrors of World War I had permanently planted the idea in the minds of politicians and international lawyers that aggression should be limited, or even made by some means impermissible, in international affairs. This idea, while not expressed in the strictest terms possible, was reflected in the draft Convention. On the other hand, the lack of agreement on the meaning of the term "aggression" rendered the abhorrence of aggression somewhat impotent. Or did it? The draft Convention, at first blush, appears a testament to this characterisation of impotency, but a closer analysis highlights the fact that the draft Convention was not without merit, particularly when viewed against the backcloth of the existing international scene. The aim of the drafters certainly was, if not to eradicate completely, then at least to somehow limit aggression in international relations by subjecting it to a strict regulation. The publication of the draft Convention, of course, was followed by the horrors of World War II, which then witnessed the repeated condemnation of aggression as the supreme crime in international law. 3 However, the exact meaning and content of the
' 29 Am. J. Int'l L. (Supp.) 653 (1935). See also the HarvardResearch in InternationalLaw (reprint by W.S. Hein, 2008); and the text of the draft Convention
appears below as Appendix 13.

2 Ibid., 820. 3
United States of America et al v Goering et al, International Military Tribunal, Judgement, 30 September 1 October 1946, 41 Am. J. Int'l L. 172 (1947). It should be noted there were many doubts expressed as to whether aggression was
Harvard Research on International Law crime of aggression defied definition and was the subject of heated debates. Ironically, once again the exact meaning and content of the crime of aggression remained unclear. It took the General Assembly about twenty years to agree on the definition of aggression, 4 nevertheless as illustrated by the recent efforts to define aggression for the purposes of the Statute for the International Criminal Court, 5 notwithstanding this General Assembly resolution, the issue of defining "aggression" is still in a state of flux. The draft Convention, while being close to an accurate representation of the international law in the area of aggression at the time, can hardly be argued as having represented de lege.ferenda as its authors were claiming, 6 as will become evident from this chapter. Nevertheless, there are interesting parallels that can be drawn between the thinking of the authors of the draft Convention and the debates surrounding the crime of aggression today. It is clear that the draft Convention had little impact on the further development of international law in the area of the use of force. However, it is likewise clear that the debates in international law in the area of aggression have not progressed much beyond the debates of 1939. Most significantly, it is the same core question, which by not being addressed, rendered the draft Convention somewhat redundant and remains unanswered today: what constitutes an aggression in international law? The State of International Law on Aggression Prior to the Draft Convention The idea of the necessity to limit the rights of States to wage wars in the modem era can be traced back to the First and Second Peace Conferences which took place in the Hague in 1899 and 1907. There was a clear consensus among the participating States that warlike actions ought to be limited, but neither of these conferences produced more than a general obligation for States to "use their best efforts," "as far as circumstances allow" or "as far as military requirements a crime under international law at the beginning of World War II: see, e.g.,
Rolling and Cassese, The Tokyo Trial and Beyond (1993), 98. 4 G.A. Res. 898 (IX), 14 December 1954, and G.A. Res. 3314 (XXIX), 14
December 1974.
5 U.N. Doc. A/CONF.183/9, art. 5(1)(d) and art. 5(2).
6
Supra n. 1, 824.
Rights and Duties in Case of Aggression permit." 7 There was no general prohibition on war or aggression, let alone on the use of force. The appalling aftermath of World War I set the scene for the creation of the Commission on the Responsibility of the Authors of the War and Enforcement of Penalties, 1919, by the victorious powers. This 1919 Commission named Germany as the principal responsible State "which declared war in pursuance of a policy of aggression, the concealment of which gives the origins of this war the character of a dark conspiracy against the peace in Europe."8 The distinction was drawn between two types of crimes: acts that provoked war and accompanied its inception and violations of the laws and customs of war and the laws of humanity. It was decided that charges would be brought only against those who had committed crimes falling into the second category, whilst the crime of aggression was seen as too complicated to deal with: it was undefined and convicting those responsible for it would take too long. 9 Aggression had never before been clearly declared to constitute an international crime and since no sovereign ruler had ever been charged with such a crime, the 1919 Commission saw the prosecution of the German Kaiser as a retrospective application of law and hence impermissible. Nevertheless, the Treaty of Versailles10 charged Kaiser William II with "a supreme offence against international morality and the sanctity of treaties" and planned to try the Kaiser before an international tribunal even though the prosecution actually never took place.'" Thus, the Treaty of Versailles can be considered to be the first international treaty of modem times that contained a clear prohibition of aggression, even though it was tied to the specific events of World War 1.
7 The Proceedings of the Hague Peace Conferences (1899 and 1907), reprinted
in part in Ferencz, Enforcing International Law: A Way to World Peace, International Law (1983), 246-261 8 Report of the Commission on the Responsibility of the Authors of the War and Enforcement of Penalties,in Ferenza, ibid, 171-172. 9 Ferencz, The Crime of Aggression, in McDonald and Swaak-Goldman (eds.), Substantive and ProceduralAspects ofInternationalCriminalLaw (2000), 39. 10 225 C.T.S. 188, art. 227. 11 Wilhelm II fled to Holland, which refused to extradite him, arguing there was no competent international court acting on the basis of a statute that defined punishable offences. See supra n. 9, 39.
Harvard Research on International Law These developments were followed by the creation of the League of Nations and the Covenant of the League of Nations 1 2 which represented a first attempt to deal with the issue of aggression in more general terms. Art. 10 of the Covenant called for the preservation of and respect for the territorial integrity of the League Members against aggression and the Council of the League of Nations was charged with the duty of dealing with any cases of such aggression or threat or danger of such. However, the Covenant did not prohibit aggression. Pursuant to arts. 12 and 13, League Members were to submit their disputes to arbitration or to the Council of the League and in any case the League Members were not to resort to war until three months after the award by the arbitrators or the report by the Council. Consequently, there was no general outlawing of aggression and the same burning question of what constituted an aggression remained unresolved. The issue of definition continued to linger in various inter-war documents. Thus, the 1923 Draft Treaty of Mutual Assistance declared a war of aggression to be an international crime but never defined what was meant by "aggression." Similarly, the 1924 Geneva Protocol for the Pacific Settlement of International Disputes declared aggression to be an international crime, but contained no further explanation as to what was meant by the term. 3 Finally in 1927, the League of Nations Assembly unanimously adopted a resolution proclaiming aggressive war to constitute a crime, and this was followed by a resolution from the Pan American Conference on 18 February 1928, also declaring aggressive war to be a crime. 14 Both these documents, however, are non-binding in character and neither of the bodies that adopted them could have been considered as universal at the time. The 1928 Kellogg-Briand Pact or Pact of Paris15 was somewhat different. It contained the first general prohibition of war and contracting parties agreed to solve their disputes by pacific means only. However, the Pact of Paris left a number of issues unresolved. The prohibition extended to "war" only and thus such actions as self12 225
C.T.S. 195.
13It should be noted that neither of these treaties entered into force.
14 Cryer, Prosecuting International Crimes. Selectivity and the International CriminalLaw Regime. (2005), 241. 15 General Treaty for the Renunciation of War as an Instrument of National
Policy, 94 L.N.TS. 57.
Rights and Duties in Case of Aggression defence or actions falling short of "war" were not outlawed by the Pact of Paris. Needless to say, there was no definition of "war" thus leaving States an option of simply not calling their actions "war." There were, however, initiatives to define aggression, most notably the 1933 Soviet Union proposal to define aggression as well as the way aggression should be determined, but this proposal failed to gain general support.1 6 Therefore, at the time when the creators of the draft Convention embarked upon their work, the issue of aggression was in a state of flux: the idea of prohibiting aggression was in the air, but the only documents proclaiming such prohibition were non-binding in character. Moreover, without a consensus as to what constituted aggression the door was left open for almost any sort of use of force.
The Draft Convention

Initially it should be noted the draft Convention contained no definition of aggression, nor did it contain a general prohibition of aggression or the use of force. As is pointed out in the accompanying Introductory Commentary, the draft Convention "does not concern itself with the policy which underlines attempts to define and restrain "aggression." 17 On this note, the draft Convention reflected the state of international law at the time: despite the growing consensus about the need to outlaw aggression, use of force remained a legitimate option available to States and, moreover, in any case there was no consensus as to what precisely constituted "an aggression." Thus, the aim of the draft Convention was to deal with the situation once aggression had already taken place as opposed to the prevention of such occurrences. Moreover, the scope of the draft Convention was rather narrow: it applied only in cases when the State parties had resorted to aggression in violation of a bilateral or multilateral treaty between themselves. Thus, the actual determination of the fact of aggression was left to the mechanisms enshrined in these 18 other treaties.
16 Supra 17
n. 9, 41. Introductory Commentary, supra n. 1, 825; the drafters actually point out, in
the Introductory Commentary, the term "aggression" has been chosen to facilitate the drafting process only: see Commentary, 847
" Ibid., 824.
Harvard Research on International Law It was acknowledged that treaties containing the obligation to refrain from the use of force were characteristic of the period since 1920, albeit it was possible to find evidence of like provisions in treaties of earlier periods. 19 However, whilst recognising such evidence, the commentary emphasized the contribution made by Latin American States during the 19th Century 20 in framing and concluding treaties restricting recourse to war. What the drafters attempted to tease out was evidence that the type of situation covered by the draft Convention, was the result of a long historical evolution extending back in time to before the Covenant and the Pact of Paris.2 1 The Introductory Commentary unequivocally stated, that to connect the situation envisaged by the draft Convention solely with the two aforementioned instruments would be "erroneous., 22 It is evident that the drafters were at great pains to disassociate, or at least distance themselves, from events of the 1930s. Consequently, the draft Convention was premised on an assumption that there existed treaty arrangements regarding the procedures on which a violation of an obligation not to resort to acts of war or to armed force could be established. Such a decision might be made by an international judicial tribunal, by a special type of Commission, by the Council or Assembly of the League of Nations or by a group of States consulting together for the purpose. Only if an affirmative decision was made, that the resort to hostilities was in violation of an obligation not to engage in such a use of force, would the draft Convention be applicable. The fact that the Harvard Research did not concern itself with the policy underlying attempts to define and
The Introductory Commentary acknowledged it was possible a precedent could be found in ancient treaties of peace and friendship where a declaration of a firm and inviolable peace and friendship between the high contracting parties and a promise might be implied that the parties would not go to war against each other: ibid., 823.
19
Ibid., 858-861for the Commentary for the multipartite, bipartite treaties
concluded before 1914. 21 Reference was made to the 1907 Hague Convention on the Limitation of the
Employment of Force for the Recovery of Contact Debts, 205 C.T.S. 250, and
the so-called Byron Treaties. 22 Supra n. 1, 824.
Rights and Duties in Case of Aggression restrain aggression was frequently stressed. The Introductory Commentary notes that the Covenant did establish detailed procedures for determining a breach of obligation and there had been a steady increase in the number of treaties which provided for compulsory processes of arbitration, conciliation or other forms of adjustment. This was why the opportunity was seen as ripe for the draft Convention's approach in dealing with aggression. Equally, it was not the purpose of the draft Convention to implement any specific treaty such as the Covenant or the Pact of Paris or to determine what constituted a breach of any of these treaties or to suggest new means for determining when a breach had occurred. The draft Convention, for instance did not seek to define the obligations to impose sanctions under art. 16 of the Covenant, nor was it the purpose of the draft Convention to elaborate particular rules whereby aid could be given to a State which was unlawfully attacked by another State. The draft Convention also refrained from getting involved in what might be seen as an attempt to define just and unjust wars. However, although anxious to avoid being too closely linked with the Pact of Paris, reference was made in the Introductory Commentary to the meeting of the International Law Association in Budapest in September 1934, which dealt with the legal consequences of the effect of a breach of the Pact of Paris and from which the "Budapest Articles of Interpretation" had ensued.24 The draft Convention did not purport to impose rules upon a nonsignatory and its r6gime was only to apply if the aggressor was a party to the draft Convention. However, the concluding sentence to the introductory article provides that "the application of these provisions may become universally accepted as a part of the law of nations ... " and all other States were invited to "adhere thereto., 25 Thus, the rules spelt out in the draft Convention were aimed at a generalised Although aggression was being dealt with by the research that was not to be taken to indicate any individual or general opinion for or against what was commonly referred to as is a system of "collective security:" ibid., 825. 24 International Law Association, Report of the 38th Conference, 66. These
23
Articles of Interpretation were designed to deal with the legal consequences that
would have followed a breach of the Pact of Paris. However, as noted in the
Introductory Commentary, the International Law Association had confined its discussion to a particular treaty: supra n. 1, 826. 25 Commentary, 844: supra n. 1.
Harvard Research on International Law application, echoing the approach adopted later by the United Nations Charter, art. 2(6). This invitation to non parties was warranted by the steady growth of the conviction that a resort to force in defiance of legal obligations was a matter of concern to all States of the world whether or not they be directly involved in the controversy. 26 Turning to the central issue, namely, the definition of aggression, Part I of the draft Convention purports to define the use of terms in art. 1(c). However, any expectation that aggression is defined as to its content and scope is not fulfilled as it only states: (c) "Aggression" is a resort to armed force by a State when such resort
has been duly determined, by means which that State is bound to accept,
to constitute a violation of an obligation. Thus, in reality the draft Convention merely defined situations as to when the draft Convention might be invoked. The responsibility for determining aggression was abdicated to another mechanism. All the Commentary did was to emphasize the four aspects that were important to consider for the term "aggression:" there had to be a legal obligation upon a State party not to resort to armed force; there had to be a violation of that obligation; that violation had to be determined; and finally, the violation had to be determined in a manner which the aggressor State was bound to accept.27 However, this explanation of the term "aggression" for the purposes of the draft Convention can hardly be said to represent a legal definition of what constitutes aggression. There is a reference to a use of armed force, but the ways of how and why that armed force is used in order to reach the threshold of aggression is left to be decided by the designated bodies envisaged in other bilateral or multilateral treaties binding upon the State party. This approach left unanswered a series of fundamental questions, for example, what would happen if a State is bound by various treaties of each of which envisage a
26 In this context, reference was made to the 1907 Hague Convention for the
Pacific Settlement of International Disputes (art. 3); the Report of the Third Commission of the First Hague Conference of 1899; the Covenant of the League of Nations and the statement in 1937 of Secretary State Hull (U.S. Department of State, Press Releases, 17 July 1937, 14) to underscore that the use of force wherever used was an issue for all States. The hope that membership of the League of Nations would be universal was also highlighted: Commentary, 846:
supra n. 1. 27 Commentary, 871: supra n. 1.
Rights and Duties in Case of Aggression different body determining the existence of aggression and these bodies make contradicting determinations; what if the designated body fails to make such a determination; or how could a uniform application of the draft Convention be ensured? Arguably, what the drafters of the draft Convention were attempting was a legal approach which was subsequently abandoned by the drafters of the U.N. Charter in favour of a political approach. Art. 39 of the U.N. Charter, in affording broad discretion to the Security Council to determine the existence of a threat to the peace, a breach of the peace or an act of aggression, emphasised the procedural rather than substantive limits. Furthermore, the draft Convention would not, in any case, apply to a State which, while party to it, was not bound by any bilateral or multilateral treaty outlawing the use of armed force. In other words, if a State was not under any specific obligation not to resort to armed force arising from its bilateral or multilateral treaty obligations, the draft Convention would not apply ipso facto.28 Likewise, if a treaty did not contain an aggression determination mechanism the Draft 29 Convention would not apply. Consequently, the value of the draft Convention may be seriously questioned. It did not have a free-standing existence since its applicability was dependent upon the existence of bilateral or multilateral treaties containing an obligation not to resort to the use of armed force coupled with the mechanism determining when such a breach had occurred. The actual impact of the draft Convention does not appear significant: aggression was still not outlawed and the issue of defining aggression was neatly side-stepped. Nevertheless, the draft Convention should be analysed against the backdrop of its time. It looked to and accepted the P.C.I.J.'s opinion in the Eastern Carelia case30 and the position reflected in the Court's opinion that it was necessary to avoid rival political alignments. Accordingly, the authors of the draft Convention deemed it unnecessary to analyse the many proposals which had been made to establish a factual or automatic test for determining an aggression, again emphasizing the distinctive characteristic of international law in the international legal community and the need for consent. As to
2
Ibid., 856.
29 Id.
30 P.C.I.J., Ser. B, No. 5, 1923, 27-28.
Harvard Research on International Law whether States might be discouraged from accepting limitations upon their freedom of actions, it was concluded that the evidence recognized advantages which offset any such limitation. The draft Convention proceeded upon the theory that it was desirable to consolidate the legal position, which international law was seen as having reached, or "to which it has closely approached, leaving for the future the elaboration of more ample procedures when international relations warrant that step."31 Besides side-stepping the issue of defining aggression, the draft Convention set out the rights for four categories of States: aggressor, defending State, co-defending State and supporting State. As the names indicate, the aggressor was the State which had committed an aggression, the defending State was the one against which that aggression was directed, co-defending State was the one which assisted the defending State with armed force and the supporting State the one which afforded assistance without armed force.3 2 The only common obligation upon all four categories of States in the draft Convention was imposed by art. 14 which obliged all States to abide by the humanitarian rules concerning the conduct of hostilities. In essence, the draft Convention deprived an aggressor of any rights that normally would be acquired by a State using force at the time and art. 2 clearly provided that by becoming an aggressor a State did not acquire rights nor did it relieve itself of duties. Thus, pursuant to art. 3, an aggressor did not enjoy those rights which it would otherwise have had as a belligerent, even though it still was bound by the duties of the belligerent. Similarly, the act of aggression bore no consequences for the territorial sovereignty and integrity of any States and any treaty brought about by an aggressor's use of armed force was voidable. 3 3 However, no State could deprive an aggressor of territory or impair the political independence of an aggressor as a 34 penalty for the aggression. Defending and co-defending States, on the other hand, acquired the rights of the States opposing the belligerent, 35 while the supporting State acquired the right to discriminate against the
878: supra n. 1. Draft Convention, art. 1(d)(e)(f)(g): supra n. 1. 31 Ibid., art. 4. 34 Ibid., art.15. 35 Ibid., art. 7.
31 Commentary, 32
Rights and Duties in Case of Aggression aggressor and had the rights against it, a neutral State, would have 36 against a belligerent. All other States falling outside the four categories were to possess the rights against the aggressor that neutral States would have against the belligerent, but they were not to have the duties neutral States would have against the belligerent. 37 In relations with defending, codefending and supporting States, all other States were to have the rights and duties which if they were neutrals they would have against 8 3 the belligerent. Therefore, the draft Convention once again relied heavily on the provisions of other treaties as it contained no definition of belligerent, State opposing belligerent or neutral. Finally, according to art. 16 of the draft Convention, Contracting Parties were to consult among themselves as to when the articles regulating aggression ceased to operate. As explained in the accompanying commentary, the draft Convention provided for special rules to be applied in the case of aggression and as such these would be limited in time. 39 Thus, it was incumbent on the contracting parties to determine when the provisions of the draft Convention would cease to operate. This provision, however, was somewhat superfluous since the draft Convention was silent as to how this process of determination should take place. The commentary failed to provide any guidance as it only provided that "the decision that the emergency period is over and normal law resorted is to be by collective decision arrived at by consultation of the parties to this Convention. '' 40 Thus, the provision fell into what was now becoming a recurrent trapdetermination was prescribed for, but the failure to provide how this should happen rendered its application ineffective and hence any practical value of this provision was extinguished. Interestingly, the authors of the draft Convention in the commentary observed that it might be better if the primary act of aggression, as well as its termination, were to be determined by an international tribunal or some other body. This would ensure consistency between determination of the existence of aggression and its termination, but
36
Ibid., art. 10.
37 Ibid., art. 12. 3

1 Ibid.,
39
40
art. 13. Commentary, 907: supra n. 1.

id.
Harvard Research on International Law they discarded the proposition, stating that it would be too difficult a task for a court. 4 1 These sentiments are still expressed today! This is perhaps the only instance when the drafters considered the issue of aggression in a way similar to contemporary discussions on the issue. Besides the treatment of the issue of aggression, there are two more issues that deserve consideration for their relevance to the subsequent development of international law. First, art. 4(2) addressed the issue of acquisition of territory by the use of force, whereas art. 4(3) dealt with the application of treaties secured by force. Admittedly this may be only of academic interest, but it does cast some light on the thinking of the Researchers. Essentially, art. 4(2) and (3) were an expression of an application of the Stimson Non-Recognition doctrine.4 2 This reference to the Stimson doctrine reinforces the fact that the draft Convention was very much a product of its time. Indeed, the inclusion of art. 4(2) emphasized what was a particular and peculiarly American perspective. However, notwithstanding this obvious "tie in" with the then contemporary events it was maintained the origin of what was expressed in art. 4(2) predated by many years Stimson's enunciation of 1932. 43 Possibly, what was being sought was a dilution of the political over tones of the doctrine in favour of one founded on legal principle. The commentary recognised the extent whereby a State under international law could acquire rights through the use of armed force, short of war, might be debatable, but maintained that in situations covered by the draft Convention an acquisition of territory by the use of force would be illegal. There was no longer any debate at least to the extent of art. 4 and, according to the commentary, there was sufficient evidence for proposing the crystallisation of a rule of customary international law.44 Art. 4(2) has, of course, been reflected in subsequent international instruments, for example art. 11 of the Draft Convention on the Rights and Duties of
41 Commentary, 908-909: supra n. 1.
42
Ibid., 889. A policy intimated by U.S. Secretary of State Stimson to Japan and
China in 1932 to the effect the U.S. "cannot admit the legality of any situation de facto nor does it intend to recognise any treaty or agreement entered into between those Governments which may impair the treaty rights of the United States ... [or] any situation, treaty or agreement which may be brought about by means contrary to the Pact of Paris:" L.N.O.I Spec. Supp. No. 101, 8.
43 Id.
44
Ibid., 895.
Rights and Duties in Case of Aggression States 194945 and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation amongst States in accordance with the Charter of the United Nations 1970.46 The second issue had some bearing on the development of the law of treaties. The draft Convention opted for treaties being voidable rather than void representing thus one voice in the debate on the consequences of treaties brought about by a use of force.4 That debate, of course, culminated in the provisions as contained in the Vienna Convention on the Law of Treaties 1969,48 whereby a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the U.N. Charter.49 However, when returning to the central issue of the draft Convention, namely the issue of aggression, the essence of it can be summarized as follows: aggression was not to give rise to any rights for a State resorting to it, but the determination of the fact of aggression was left to mechanisms envisaged in other treaties. This was clearly a weakness and the draft Convention hardly represents an effective way of dealing with the cases of aggression. However, contrary to what the authors of the draft Convention suggested,5 such a treatment of the issue of aggression does reflect the thinking of international law on the matter at the time although admittedly it did not touch on the issue of individual criminal responsibility for the crime of aggression. It should be noted that since the Treaty of Versailles, the two resolutions along with the two draft treaties, all discussed earlier, are the only documents calling aggression an international crime. As argued by Cryer,5 1 the two draft conventions, with a ratification between
411949 III.L.C. Yb. 286 288.
46
G.A.Res. 2625 (XXV) 24 October 1970.
47 The justification for this position was that an aggressor might, after defeating
the armed forces of the victim of aggression, conclude with that State a treaty
which was deemed to be intrinsically equitable. In such instances there would be no reason to push logic to its extreme and to declare the treaty as nevertheless void.
48 1155 U.N.T.S. 331.
49 Vienna Convention, art. 52. See Aust, Modern Treaty Law and Practice
(2000), 256. 50 Commentary, 844: supra n. 1.

51
Cryer, Prosecuting International Crimes. Selectivity and the International
CriminalLaw Regime (2005), 242.
Harvard Research on International Law them, and two non-binding resolutions of non-universal international bodies do not appear as sufficient authority to ground a positive rule in international law. What the draft Convention did not do, once again contrary to the suggestion of its drafters,5 2 was speak de lege ferenda. As becomes evident in the next section, international law took a different view on how to deal with cases of aggression. Subsequent Developments in International Law on Aggression The quest for a definition of aggression continued in the wake of World War II. As already noted, the term aggression first acquired a technical definition in art. 10 of the Covenant, whereby Member States undertook to respect and preserve as against external aggression the territorial integrity and political independence of all League Members. This was, of course, reflected in art. 1(1) of the U.N. Charter as the first purpose of the Organisation. Meanwhile, the Charters of the two International Military Tribunals54 designated the planning, preparation, initiation of or engagement in a "war of aggression" as a "crime against peace," or a war in violation of international treaties, agreements or assurances, or participation in a common plan or a conspiracy for the accomplishment of any of the foregoing. Such activities fell within the jurisdictional ambit of the IMTs.5 5 The trials at both the IMTs are regarded as a cornerstone in the great effort to make peace more secure while the UN Charter emphasized the need to save succeeding generations from the scourge of war by promoting human rights, justice and respect for international law. The approach of the IMTs towards establishing individual criminal responsibility for the crime of aggression was not entirely novel, as evidenced by the Treaty of Versailles, for example. Commentary, 824: supra n. 1. reads in part: "To maintain international peace and security; and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace... 54 82 U.N.T.S. 279. 55 Art. 6 of the Nuremburg Charter; Art. 5(a) of the International Tribunal for the Far East.
52
53 It
Rights and Duties in Case of Aggression However, the issue of individual responsibility was never discussed in the draft Convention. At Nuremberg, the individual responsibility for aggression was limited to those in respect of whom it was demonstrated that they were leaders or accomplices with personal knowledge that aggression was contemplated and who had helped to plan or wage the crime of an aggressive war. Interestingly, the Nuremberg IMT maintained that aggression had already been established as a crime and what was set out in its Charter was not ex postfacto legislation, but rather represented existing international law.56 Aggression was considered as a subcategory of crimes against peace, which were all subjected to the same regime and thus a precise definition of 57 aggression in relation to other crimes against peace was immaterial. However, although the IMT characterized the crime of aggression as "the supreme international crime differing only from other war crimes in it contains within itself the accumulated evil of the whole," 58 the extent and scope of what substantively constituted aggression or aggressive war was not spelt out. Nevertheless, the IMTs and their findings got a general and unanimous affirmation by the General Assembly in Resolution 95 (I) of 11 December 194659 and proved to be an impetus for the adoption of an international criminal code. Thus, the General Assembly in the same resolution called on the Committee on the Codification of International Law "to treat as a matter of primary importance plans for the formation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal., 60 The task of produ56
Similarly, in the Charter for the Military Tribunal for the Far East, which was
closely modelled on that of the IMT Charter, aggressive war was seen as a crime in international law, long prior to the date of the Declaration of Potsdam.
However, the famous dissenting opinions of Justice Rolling and Justice Pal must
be noted here. Both argued that at the time the crime of aggression was not a crime under customary international law. 57 Gaja, The Long Journey towards Repressing Aggression, in The Rome Statute of the InternationalCriminal Court: A Commentary (Cassese, Gacta and Jones, eds.) (2002), 427 at 428.
58
59 Affirmation of the Principles of International Law Recognized by the Charter of the Niremberg Tribunal, G.A. Res. 95 (1), U.N. Doc. A/236 (1946).
60 id.
See Ferencz, Defining InternationalAggression, (1975) Vol. 1, 437.
Harvard Research on International Law cing a draft code was entrusted to the International Law Commission at its first session in 1949. This marks a clear departure from the way the issue of aggression was treated in the draft Convention. The development of international law separated two issues: individual criminal responsibility for the crime of aggression and the regulation of aggression in inter-State relations. The latter was seen as the exclusive prerogative of the Security Council, when the U.N. Charter under art. 39 charged that organ with a determination of aggression. Nevertheless, the attempts to deal with the aggression as an international crime have consistently trespassed on the Security Council's field of operation. Such attempts have witnessed constant juggling between respecting the acknowledged exclusive competencies of the Security Council and the need to impose individual criminal responsibility for the crime of aggression. The quest for the code of international crimes was not an easy one. Yet, such a code was prerequisite to the establishment of any international criminal court 61 and such a code would have to include the crime of aggression. Moreover, a definition of the term remained consistently elusive. Indeed, Mr. J. Spiropoulos, the Special Rapporteur on the subject of a Draft Code highlighted: whenever governments are called upon to decide on the existence or nonexistence of "aggression under international law," they base their judgment on criteria derived from the 'natural', so to speak, notion of 62 aggression ... and not on legal constructions. This led him to the conclusion that this "natural notion" of aggression is a "concept per se," which "is not susceptible of definition." "A 'legal' definition of aggression would be an artificial construction," which could not be comprehensive enough to comprise all imaginable
61 In
1951, the G.A. Special Committee on an International Criminal Jurisdiction
submitted a comprehensive draft statute for a criminal tribunal. However, as to
what might fall within the court's competence was not defined, nor was there any mention of aggression. The G.A. appointed two subsequent committees to deal with the creation of a criminal court and another special conmmittee with the specific task of addressing "the problem of defining aggression."
The Possibilityand Desirabilityof a Definition of Aggression, prepared by the Special Rapporteur as an annex to his second report on the Draft Code of Offences against the Peace and Security of Mankind, 1951.
62
Rights and Duties in Case of Aggression cases of aggression, since the methods of aggression are in a constant process of evolution.63 However, during the immediate post-war period, although aggression continued to defy definition, there was evidently no doubt that aggression or an aggressive war constituted a crime in international law for which individual criminal responsibility can, and should, be imposed. The International Law Commission in its 1954 Draft Code of Offences against the Peace and Security of Manlnd64 characterized aggression as including, but not necessarily limited to, the employment by the authorities of the State of armed force against another State for any purpose other than national or collective self defence, or in pursuance of a decision or recommendation of a competent organ of the U.N. 65 No attempt was made however to enumerate acts of aggression exhaustively.6 6
63 id.
64
65
1951 11L.C.Yb. 134. Ibid., art. 2. It was stated that this article was in consonance with the General
Assembly's view that any aggression "is the gravest of all crimes against peace and security throughout the world" as well as incorporating in substance the Nuremberg definition of the initiation or waging of a war of aggression as "crimes against peace." 66 The General Assembly, in Resolution 897 (IX) of 4 December 1954, considering that the draft code raised problems closely related to that of the definition of aggression and decided to postpone further consideration of the draft code until the new Special Committee on the Question of Defining Aggression had submitted its report. The report of the Special Committee was before the Assembly at its 12th session, in 1957. At that session, the General Assembly took note of the report and decided to postpone consideration of the question. In view of that decision and the consideration that the draft code raised problems relating to the question of defining aggression, the General Assembly, in Resolution 1186 (XII) of 11 December 1957, deferred consideration of the draft code until such time as it took up again the question of defining aggression. In the same resolution, the Assembly requested the Secretary-General to transmit the text of the draft code to Member States for comment, and to submit their replies to the General Assembly at such time as the item might be placed on its provisional agenda. The item was brought to the attention of the General Assembly in 1968 and again in 1974. The Assembly decided at its 23rd session, in 1968, not to take up the item, but at its 29th session in 1974, it returned to the issue of whether it should consider the question of a Draft Code of Offences against the Peace and Security of Mankind again. Eventually, the General Assembly, at its 32rd session, in 1977, acting on the request of 7 Member States, decided to include in its agenda the item entitled "Draft Code of Offences
Harvard Research on International Law However, the General Assembly was of the view it was both possible and desirable to define aggression and there would be definite advantages if directions could be formulated to serve as future guidance and, thus, facilitate any international body that might be called upon to define the aggressor.6 7 Despite this, further discussions were not productive and the conclusion in 1967 was that the time for further action was not as yet appropriate. The absence of a definition of aggression constituted a particular obstacle to the establishment of an international criminal court as, without such a definition, no criminal code would be complete and, in the absence of such a code, there was no requirement for a court to enforce the code. In 1970, a war of aggression was again referred to as a crime against the peace for which there is responsibility under international law. 68 This was followed by what was the culmination of work undertaken by four successive General Assembly specialist committees, namely the adoption by consensus of General Assembly Resolution 3314 (XX1X) of 14 December 1974.69 Therein, aggression is defined exclusively in terms of physical force, as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the U.N. Charter. 70 The resolution left considerable discretion to the Security Council because, although the first use of armed force was to constitute prima facie evidence of an act of aggression, the Security Council may determine that such use of force does not amount to aggression as where "the acts concerned or their conesquences are not of sufficient gravity. '71 Art. 3 provides an illustrative list of what constitutes an act of aggression, but art. 4 again underscores the pre-eminence of the Security Council and notes that the instances enumerated in art. 3 are not exhaustive and that the Security Council can determine any other act as constituting aggression under against the Peace and Security of Mankind," and to allocate it to the 6th Committee. 67 G.A. Res. 599 (VI), 31 January 1952. 68 Supra n. 45.
69 70
Resolution 3314 (XXIX); reprinted in 69 Am. J. Int'l L. 480 (1975). Ibid., art. 1; the resolution also makes unequivocally clear that "whether an act
of aggression has been committed must be considered in the light of all the circumstances of each particular case."
71 Ibid.,
art. 2.
Rights and Duties in Case of Aggression the provisions of the U.N. Charter. Further, art. 5 distinguishes between a war of aggression and aggression generally and charac72 terises only a war of aggression as criminal. Consequently, there are significant parallels that may be drawn between the approach adopted in the resolution and that of the draft Convention: the ultimate determination of aggression rests with an outside body. In the case of the draft Convention, this could have been any body which the respective States had accepted as having an aggression-determining competency, whereas in the resolution this body was the Security Council. Thus, despite the definition of aggression contained in the General Assembly resolution, it may be argued the definition contained therein has been denied achievement of its full potential. After all, it is the Security Council which has the ultimate and final say in determining the existence of aggression and it is bound to follow the resolution's prescription on the matter. Although the Security Council apparently considered the possibility of formally adopting the resolution's definition, this was not pursued. 7 However, as explained by the International Law Commission:
'
This link [between existence of aggression and determination of it by the Security Council] is at the origin of the efforts made by many States to win acceptance for the view that the condition in question is fulfilled even in cases in which the actions complained of are not strictly covered by the traditional idea of the threat or use of force in international relations.74
In 2001 the Draft Articles on State Responsibility 75 dropped the distinction included in the 1996 version of the Draft Articles on State
On this basis only the former gives rise to criminal responsibility whereas other "lesser" forms of aggression involve responsibility of a civil kind encompassing an obligation to make reparations.
72
73 74
Broms, (1977-I) 154 Recueil de Cours 299 at 383. Report of the ILC on its 28th session, 1976 11 I.. C. Yb., Part Two; reprinted in Shabtai, The International Law Commission's Draft Articles on State Responsibility, (1991), Part 1, Articles 1 35. 75 The Draft Articles and their Commentaries were finally adopted by the International Law Commission on 9 August 2001: U.N. Doc A156/10Chp.IV.E..
The Draft Articles were recommended to Governments for adoption in G.A. Res. 56/83 of 10 December 2001.
Harvard Research on International Law Responsibility 76 between civil and criminal liability. In the latter, "a serious breach of an international obligation of essential importance for the maintenance of international peace and security such as that prohibiting aggression" was characterised as an international crime.77 The 2001 Commentary 78 to the Draft Articles highlighted a number of problems with this characterisation, the primary one being that of what is meant by saying a State has committed a crime. Draft art. 40 of the 2001 Draft Articles talks of a serious breach of an obligation arising under a peremptory norm of general international law. What is recorded in the 2001 Commentary to that Draft Article is that no procedure is prescribed for determining whether or not a serious breach has been committed, and it is acknowledged that, in the particular case of aggression, the Security Council is given a specific role under the U.N. Charter. The adoption of the 1974 General Assembly Resolution on the Definition of Aggression opened the way for furthering the work on the Draft Code of Offences against the Peace and Security of Mankind, and the International Law Commission finally submitted its recommended Code of Crimes in 1996. 7 9 The Code of Crimes confirmed an individual's responsibility for the crime of aggression in accordance with draft art. 16 of the 2001 Draft Code, which provides that an individual who is a leader or an organiser and actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression. However, the 1996 Commentary accompanying this Draft article makes a rather significant distinction:
The words "aggression committed by a State" clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression. Nonetheless, the scope of the article is limited to participation in a crime of aggression for the purpose of individual criminal responsibility. It
76
77
See draft report of the I.L.C. on the work of its 48th session, 6 May-26 July
1996, U.NDoc. A/CN.4/L.528/Add. 2. Ibid., art. 19(3)(a). 78 For complete text, see Crawford, The International Law Commission'
Articles on State Responsibility, Introduction, Text and Commentaries (2002). 79 Supra n. 75.
Rights and Duties in Case of Aggression

therefore does not relate to the rule of international law which prohibits 80 aggression by a State. Thus, the 1996 Draft Code resonates with the approach of the IMTs as well as the wording of the U.N. Charter and, most importantly, preserves in tact the privileged role of the Security Council under art. 39 of the U.N. Charter. In the Draft Statute for an International Criminal Court, submitted by the International Law Commission to the U.N. General Assembly in 1994, aggression was included in the list of the punishable crimes, but unlike the other crimes, it was not defined. 81 Moreover, there was a special clause noting the crime of aggression could only be committed if the Security Council had first determined that aggression had occurred.82 The Ad Hoc Committee, established by the General Assembly for the consideration of the draft, was confronted with considerable controversy regarding the crime of aggression. The international tribunals, established to deal with the situations of former Yugoslavia and Rwanda, did not have the crime of aggression included in their jurisdictions, in an attempt to protect them from the political issues surrounding the conflicts, 8 3 and thus the precedents of the Nuremberg and Tokyo trials were somewhat less compelling.8 4 Moreover, the issue of the involvement of the Security Council in determining the existence of aggression remained. It was feared that, leaving this determination to the Security Council, could expose the prosecutions to veto by one of the permanent members, effectively prohibiting the court from dealing with issues concerning the interests of one of the great powers.8 5 It was also observed the Security Council had shown a considerable reluctance in using its prerogative
80
The 1996 Draft Code of Crimes against the Peace and Security of Mankind with
Commentaries, 1996 III.L.C. Yb., 43, commentary to Draft art 16 at para. 3. 81 Draft Statute of the International Criminal Court in the Report of the I.L.C. to the General Assembly on the Work of its 46th Session, U.N. Doc. A/CN/ 4/SER A/1994/Add 1 (Pt. 2), art. 20. 82 Ibid., art 23(2). 83 O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 Am. J. Int'lL. 640 at 645 (1993). 84 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. Doc. A/50/22, 13, para. 63. 15 Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/10, Vol. I, 19, para. 72.
Harvard Research on International Law under art. 39 of the U.N. Charter to determine the existence of acts of aggression. The Security Council has been notably circumspect in the exercise6 8 of this power and has only condemned the apartheid South Africa regime and the racist regime of Southern Rhodesia,8 7 separately or together, 88 for the acts of aggression committed against their neighbours. The only two exceptions 89 appear to be the condemnation of Israel for its aggression against Tunisia in the 1980s 9 and condemnation of "the act of armed aggression perpetrated against the People's Republic of Benin on 16 January 1977,"' 91 which followed an airborne attack on Cotonou airport by a group of mercenaries. Even Iraq's invasion of Kuwait in 1990 was only condemned as a "breach of peace" 92 by the Security Council. Thus, by 1997, there was a general consensus in favour of what was known as the "Singapore compromise," whereby the Security Council was only allowed to intervene in the Court's work by a resolution, meaning that one or more permanent members could no longer automatically veto the prosecution and this, in fact, became art. 16 of the final text adopted 93 in the Rome Conference. This, however, was with without prejudice to the problem of the definition of the crime of aggression, which almost caused deadlock at the Rome conference in 1998. On the one side, there were those
86
See, e.g., S.C. Res. 418 (1977); 454 (1979); 447 (1979); 496 (1981); 507
(1982); 527 (1982); 567 (1985); 568 (1985); 572 (1985); 574 (1985); 577 (1985); 580 (1985); 602 (1987).
87
See, e.g., S.C. Res. 326 (1973); 411 (1977); 423 (1978); 424 (1978); 455 (1979); 445 (1979). 88 See, e.g., S.C. Res. 466 (1980) and 581 (1986). 89 It should be noted that in 1950 and 1951 the Security Council adopted six resolutions entitled "Complaint of aggression upon the Republic of Korea" (Res. 82 (1950); 83 (1950); 84 (1950); 85 (1950); 88 (1950) and 90 (1951)); and in 1964 it adopted S.C. Res. 189 entitled "Complaint concerning acts of aggression against the territory and civilian population of Cambodia." None of the texts of these resolutions however contain any references to the acts of aggression. In the case of Korea, the terms "armed attack" and "unlawful attack" are used, while in the case of Cambodia the term "incidents" is employed. 90 S.C. Res. 573 (1985) and 611 (1988). 91S.C. Res. 405 (1977). 12 S.C. Res. 661 (1990). 93 Supra n. 84, 33, para. 143.
Rights and Duties in Case of Aggression States that were happy to see the Security Council excluded from the aggression-determination process completely and thus, for example, a Mexican proposal on the definition simply removed any reference to the Security Council in the draft. 94 On the other side, there were the permanent members of the Security Council who, with their allies, while sympathetic to the idea of an international criminal court, were not prepared to see the competencies of the Security Council diminished in any way. Against these opposing positions, the former group of States, insisting the crime of aggression as essential to the success of an international criminal court, made a last-ditch proposal by which the crime of aggression would be included within the Statute, with its precise definition left to a later stage of negotiation.95 The effect of this would be that, until agreement had been reached on the definition of the crime of aggression, the Court would not be able to prosecute such cases.9 6 This was the final "take it or leave it" proposal submitted by the Bureau of the Rome Conference on the morning of the last day of the conference and was accepted by States. Thus, the Rome Statute, while presuming the jurisdictional competency of the International Criminal Court over the crime of aggression, currently precludes the Court from exercising such jurisdiction. The crime of aggression is included in art. 5 of the Rome Statute, but art. 5(2) contains a rather significant technical condition. It requires the definition of aggression be adopted in accordance with arts. 121 and 123, both of which speak of the Review Conference of the Statute which is to take place seven years after the entry into force of the Statute. This has led to debate as to whether this construct means that no definition of aggression can be adopted before these seven years have passed.9 7 Interestingly, however, in Resolution F, adopted as part of the Final Act of the Rome Diplomatic Conference, the Preparatory Commission, which was, inter alia, charged with the duty of defining the crime of aggression, had to commence its work at the date of entry into force of the Statute and there is no mention of these seven years.
94 U.N. Doc. A/CONF 183/Cl/L 81 (15 July 1998).
95 Schabas, The Unfinished Work of Defining Aggression: How Many Times
Must the Cannonballs Fly, Before They Are Forever Banned? in McGoldrick, Rowe and Donnelly (eds.), The PermanentInternationalCriminal Court. Legal and Policy Issues (2004), 123 141 at 134. 96 U.N. Doc. A/CONF 183/C 1/L 75. 97 Supra n. 95, 135.
Harvard Research on International Law The Preparatory Commission commenced work in 1999 and later that year its Chair, Philippe Kirsch, expressed regret that there was more time spent on the organisational issues relating to defining aggression, as opposed to the substantive issues and there were "persistent differences" among delegations on the principle and timing of establishing a working group. 98 The working group was established9 9 and began its meetings in December 1999, but achieved little progress. The Preparatory Commission released a new version of its proposals for the definition of aggression in April 2002,00 followed by yet another discussion paper in July 2002101 and, finally in September 2002, the Assembly of States Parties decided to establish a Special Working Group on the Crime of Aggression, participation in which was open to all States Parties, as well as to all 12 0 U.N. Member States and Specialised Agencies. However, despite this, the progress of the definition of aggression since the Rome Conference has been close to zero. There are still three basic approaches:10 3 a general definition of aggression, a definition based on the result of occupying or annexing the territory of an attacked State; a general definition followed by a list of acts derived from the 1974 General Assembly resolution; and a definition taken from art. 6 of the Nuremberg Charter. The three basic obstacles also 14 0 remain intact: the issue of the Court's jurisdiction rationepersonae, 0 the issue of complimentarity 1 5 and the issue of the Security Council,
98 UN. Press Release L/2932, 9 August 1999.
99 U.N. Doc. PCNICC/1999/L4/Rev 1, 8, para. 8; U.N. Doc. PCNICC/1999/L5/ Rev 1, 3, para. 16. 100 Proceedings of the Preparatory Comnuission at its Ninth Session (8 19 April 2002), U.N. Doc. PCNICC/2002/Li/Rev 1, 19. 101Discussion Paper Proposed by the Coordinator, (2002) U.N. Doc PCNICC/2002/WGCA/RT 1/Rev 2. 102 Continuity of Work in Respect of the Crime of Aggression, (2002) U.N. Doc ICC-ASP/1/Res 1. 103 Supra n. 95, 137. 104 Since the crime of aggression can only be committed by political or military leaders, it will be necessary to revise art. 25 of the Rome Statute which currently sets no such threshold rationepersonae on prosecution. 105 The Rome Statute rests on the idea of complimentarity and thus the primary responsibility rests with the national courts. This has prompted many States to revise their national legislation to bring it in line with the Rome Statute. Despite
Rights and Duties in Case of Aggression discussed at length earlier. These developments, or rather lack of them, have prompted Schabas to argue that, today, there is more uncertainty about the prohibition on the use of force than there was in 06 mid- 1945.1 Consequently, the attempts, subsequent to the Harvard draft Convention, to define aggression have made little progress. What is evident is that none of these submits the determination of aggression to a legal mechanism or contains a comprehensive and free-standing definition of aggression. Rather, all acknowledge, by underscoring, the authority of the Security Council in the determination of an act of aggression. Irrespective of the way any of these instruments deal with the issue of aggression, none of them denies the Security Council its competence and final say in such a determination. The lacuna in the definition of aggression remains, as is evidenced by the problems such an omission has created for the International Criminal Court. Conclusion It is perhaps somewhat easy to criticise the authors of the draft Convention for their failure to provide clarity on the issue of aggression. However, the draft Convention is an accurate reflection of the state of international law at the time. The drafters themselves expressly stated: The considerations of the Draft Convention on Rights and Duties of
States in Case of Aggression, revealed fundamental differences of opinion regarding the general organization of the Draft, its underlying theories, and a number of the specific rules and principles set forth therein. The Research nevertheless presents it, without any implication that the Draft as published reflects even a consensus of the members of the Advisory Committee, hoping that its debates upon the problem may be continued among scholars throughout the world with a view to the 07 further clarification of the subject.
They could not have been more right! The debate is still going on some seventy years later and there is still no agreed definition of aggression. Schabas argues that the work within the U.N. in the field
this, most of the States with legislation have not introduced the crime of aggression in their national legal systems. 106 Supra n. 95, 139. 107 Commentary, 827, supra n. 1.
Harvard Research on International Law of international law has virtually stalled for almost three decades, since the 1950s, and, while there are many factors to account for this, the first and foremost in his opinion have been the immense difficul0 ties in attempts to define aggression. 1 8 The draft Convention did not rest on the Pact of Paris or any other one treaty and sought to suggest a possible future development of the law rather than set out the law then in force. It was hoped to provide the basis for debate amongst scholars with a view to achieving further clarification of the issues raised. As with all other subsequent attempts at codification, the draft Convention was a product of its time. However, there is a rather significant common feature that all these attempts share: the paramount importance of the prevalent context. The intricacies of international politics of the 1930s had an immense impact on the debate surrounding the draft Convention. Equally, some sixty years later, the sensitivities of international relations dictated the working agenda of the Rome Conference. The central issue of the debate today, the role of the Security Council, resonates in the wider discussion about the reform of the U.N., and the issue of the crime of aggression in the Rome Statute is but a part of that. Cassese' 0 9 argues that the International Criminal Court should be able to act without any interference from the Security Council whatsoever. This, in his opinion, would provide "a useful counterbalance to the monopolising power of the Security Council." 110 No matter how useful such a proposition would be for the effective functioning of the International Criminal Court, bearing in mind the current international scene,"' it is hard to imagine that a consensus
1o8 Supra
n. 95, 140. 109 Cassese, The Statute

110 Ibid.,
of the International Criminal Court: Some Preliminary
Reflections, (2000) 10 E.J.I.L. 146.

147.
...has been extensively argued that the inclusion of the crime of aggression in It
the Rome Statute and the associated discussions about the role of the Security
Council in the process of determining the existence of aggression is among one

of the reasons for the U.S.A.'s continued opposition to the I.C.C. The U.S.A. perceives these initiatives as an attempt to diminish the existing powers of the Security Council. See Schabas, United States Hostility to the International Criminal Court: It's All About the Security Council, (2004) 15 E.J.ILL. 701; Chadwick, A Tale of Two Courts: The "Creation" of a Jurisdiction? 9 Journal of Conflict and Security Law, 71 (2004); Malanczuk, The International Criminal Court and Landmines: What are the Consequences of Leaving the US Behind?
Rights and Duties in Case of Aggression can be reached on such a proposition, given the current state of international affairs. Unsurprisingly, Schabas has chosen to call the issue of aggression, in the context of the Rome Statute, "a time bomb, 1 12 ' capable of transforming the Court and even jeopardising its future." As evidenced by the latest report of the Special Working Group on the Crime of Aggression, we are nowhere closer to reaching consensus of the definition of aggression than in 1939.113 Any attempt to quantify the impact of the Harvard draft Convention on the later development of the international law on aggression would most likely be recorded as "negligible." However, if the draft Convention is taken within the context of its time and the prevailing international scene and compared to the most recent developments in their context, the parallels are striking. Today, just as then, there is a general consensus about the necessity to limit and prohibit aggression. It is acknowledged as an international crime. Yet, there is still no agreement on the definition of aggression and the only body charged with the power to determine the occurrence of aggression has used this power apparently very reluctantly and seldom, falling victim to political sensitivities. If the Draft Convention is looked at through this lens, the issues raised by it actually bear significant insights for the current situation. Unfortunately, this still does not bring the international community any closer to answering the core question. What is an aggression? The authors of the draft Convention did not succeed in achieving this and it remains to be seen if it can be done at all. In the concluding paragraph to the Introductory Commentary, it is stated:
(2000) 11 E.J.I.L. 77. Similar concerns are also shared by another permanent member of the Security Council, China. See Jianping and Zhixiang, China's Attitude Towards the ICC, 3 Journal of International Criminal Justice 608 (2005). On the other hand, Iran, disappointed by the reluctance of the Security Council to determine the existence of aggression, for example during the Iraq invasion of Iran in 1980, supports the inclusion of the crime in the Rome Statute as a means of reducing the exclusive competence of the Council. See Abtahi, The Islamic Republic of Iran and the ICC, 3 Journalof InternationalCriminal Justice 635 (2005). 112 Supra n. 96, 40. 113 Informal inter-sessional meeting of the Special Worldng Group on the Crime
of Aggression, U.N. Doc. ICC-ASP/5/SWGCA/INF.1; 5 September 2006.

the more the subject [issue of aggression] is embroiled in political controversy and emotion, the greater is the need for juristic study pursued dispassionately and without reference to the momentary currents of 4 diplomacy, enthusiasms and prejudices. 1 Ironically, this remains as valid a statement today, a perfect characterisation of contemporary international law and politics.
114 Supra n. 1,826.
Appendix 1
DRAFT CONVENTION ON THE LAW

OF NATIONALITY*
ARTICLE 1 As the terms are used in this convention, (a) "nationality" is the status of a natural person who is attached to a state by the tie of allegiance; (b) a "national" of a state is a natural person attached to that state by the tie of allegiance. (c) "naturalization" is the process by which a state confers its nationality upon a natural person after birth. ARTICLE 2 Except as otherwise provided in this convention, each state may determine by its law who are its nationals, subject to the provisions of any special treaty to which the state may be a party; but under international law the power of a state to confer its nationality is not unlimited. ARTICLE 3 A state may not confer its nationality at birth upon a person except upon the basis of (a) the birth of such person within its territory or a place assimilated thereto (us soli), or (b) the descent of such person from one of its nationals (us sanguinis). ARTICLE 4 A state may not confer its nationality at birth ('ure sanguinis) upon a person born in the territory of another state, beyond the second generation of persons born and continuously maintaining an habitual residence therein, if such person has the nationality of such other state. ARTICLE 5 A state may not confer its nationality at birth Oure solO upon a person born within its territory if such person is the child of an alien having diplomatic immunity therein, or otherwise not subject to its jurisdiction. ARTICLE 6 When a state has conferred its nationality at birth (lure soli) upon a person born within its territory who is the child of an alien then present therein as an * Reproduced with permission from 23 Am. J. Int'lL. (Spec. Supp.) 13 (1929), 0 The American Society of International Law.

officer of another state but not having diplomatic immunity therein, such state shall provide procedure by which the child may be divested of that nationality during its minority. ARTICLE 7 A state shall confer its nationality, as of the time of birth, upon a child born within its territory of unknown parents or of parents whose nationality cannot be ascertained; and it shall be presumed that a foundling was born in the territory of the state in which it is first found. ARTICLE 8 When a person is born of parents who are of different nationalities and are not married to each other, the state of which the mother is a national shall regard the mother as standing in the place of the father for the purpose of determining the descent upon the basis of which its nationality (ure sanguinis) may be conferred; if such person is legitimated as the child of its father before it reaches the age of twenty-one years, the state of which the father is a national shall regard the person as the child of the father for that purpose, unless at the time of the legitimation the person is residing in the territory of the state of which the mother only is a national. ARTICLE 9 A state shall confer its nationality at birth upon a person born within its territory if such person does not acquire another nationality at birth. ARTICLE 10 A person may have the nationality at birth of two or more states, of one or more statesjure soli and of one or more states jure sanguinis. ARTICLE 11 A person who has the nationality of two or more states shall not be subject to the obligation of military or other national service in one of these states while he has his habitual residence in the territory of another of these states. ARTICLE 12 A person who has at birth the nationality of two or more states shall, upon his attaining the age of twenty-three years, retain the nationality only of that one of those states in the territory of which he then has his habitual residence; if at that time his habitual residence is in the territory of a state of which he is not a national, such person shall retain the nationality only of that one of those states of which he is a national within the territory of which he last had his habitual residence.
Appendix 1: Law of Nationality

ARTICLE 13 Except as otherwise provided in this convention, a state may naturalize a person who is a national of another state, and such person shall thereupon lose his prior nationality. The naturalization of a person does not terminate liability for an offense committed by him against his former state while a national thereof; provided that a person who is naturalized shall not thereafter be subject to punishment by the state of his former nationality for failure to perform military service the liability for which arose after his acquisition of an habitual residence in the territory of the naturalizing state. ARTICLE 14 Except as otherwise provided in this convention, a state may not naturalize an alien who has his habitual residence within the territory of another state. ARTICLE 15 Except as otherwise provided in this convention, a state may not naturalize a person of full age who is a national of another state without the consent of such person; but a state may naturalize a person not of full age, in connection with its naturalization of his parent, without the consent of such person. ARTICLE 16 When a person, after having been naturalized by a state, establishes a residence of a permanent character within the territory of the state of which he was formerly a national, the latter state may re-impose its nationality upon such person without his consent, whereupon he shall lose the nationality acquired by naturalization. ARTICLE 17 When a person's nationality based upon his alleged naturalization is in question between two states, such naturalization may ordinarily be established by a certificate issued by the competent authority of the naturalizing state; but the validity of such a certificate may be impeached upon the ground that it was procured fraudulently or issued in violation of the provisions of a convention to which the naturalizing state is a party. ARTICLE 18 (a) When the entire territory of a state is acquired by another state, those persons who were nationals of the first state become nationals of the successor state, unless in accordance with the provisions of its law they decline the nationality of the successor state. (b) When a part of the territory of a state is acquired by another state or becomes the territory of a new state, the nationals of the first state who continue their habitual residence in such territory lose the nationality of that state and become nationals of the successor state, in the absence of treaty provisions to the

contrary, unless in accordance with the law of the successor state they decline the nationality thereof. ARTICLE 19 A woman who marries an alien shall, in the absence of a contrary election on her part, retain the nationality which she possessed before marriage, unless she becomes a national of the state of which her husband is a national and establishes or maintains a residence of a permanent character in the territory of that state. ARTICLE 20 A state may not refuse to receive into its territory a person, upon his expulsion by or exclusion from the territory of another state, if such person is a national of the first state or if such person was formerly its national and lost its nationality without having or acquiring the nationality of any other state. ARTICLE 21 States parties to this convention may conclude special agreements to govern cases in which those states only are specially interested. ARTICLE 22 Any dispute between states parties to this convention, with respect to the interpretation or application of the provisions of this convention, which is not settled by negotiation and which is not referred to arbitration under a general or special arbitration treaty, shall be referred to the Permanent Court of International Justice, and may be brought before the Permanent Court of International Justice by either party to the dispute.
Appendix 2
DRAFT CONVENTION ON RESPONSIBILITY OF STATES FOR DAMAGE DONE IN THEIR TERRITORY
TO THE PERSON OR PROPERTY OF

FOREIGNERS*
ARTICLE 1 A state is responsible, as the term is used in this convention, when it has a duty to make reparation to another state for the injury sustained by the latter state as a consequence of an injury to its national. ARTICLE 2 The responsibility of a state is determined by international law or treaty, anything in its national law, in the decisions of its national courts, or in its agreements with aliens, to the contrary notwithstanding. ARTICLE 3 A state is not relieved of responsibility because an injury to an alien is attributable to one of its political subdivisions, regardless of the extent to which the national government, according to its constitution, has control of the subdivision. For the purposes of this article, a dominion, a colony, a dependency, a protectorate, or a community under mandate, which does not independently conduct its foreign relations, is to be assimilated to a political subdivision. ARTICLE 4 A state has a duty to maintain governmental organization adequate, under normal conditions, for the performance of its obligations under international law and treaties. In the event of emergencies temporarily disarranging its governmental organization, a state has a duty to use the means at its disposal for the performance of these obligations. ARTICLE 5 A state has a duty to afford to an alien means of redress for injuries which are not less adequate than the means of redress afforded to its nationals.
* Reproduced with permission from 23 Am. J. Int'l L. (Spec. Supp.) 133 (1929),
The American Society of International Law.

ARTICLE 6 A state is not ordinarily responsible (under a duty to make reparation to another state) until the local remedies available to the injured alien have been exhausted. ARTICLE 7 (a) A state is responsible if an injury to an alien results from the wrongful act or omission of one of its higher authorities within the scope of the office or function of such authority, if the local remedies have been exhausted without adequate redress. (b) A state is responsible if an injury to an alien results from the wrongful act or omission of one of its subordinate officers or employees within the scope of his office or function, if justice is denied to the injured alien, or if, without having given adequate redress to the injured alien, the state has failed to discipline the officer or employee. ARTICLE 8 (a) A state is responsible if an injury to an alien results from its nonperformance of a contractual obligation which it owes to the alien, if local remedies have been exhausted without adequate redress. (b) A state is not responsible if an injury to an alien results from the nonperformance of a contractual obligation which its political subdivision owes to an alien, apart from responsibility because of a denial of justice. ARTICLE 9 A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guaranties which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial ofjustice. ARTICLE 10 A state is responsible if an injury to an alien results from its failure to exercise due diligence to prevent the injury, if local remedies have been exhausted without adequate redress for such failure. The diligence required may vary with the private or public character of the alien and the circumstances of the case. ARTICLE 11 A state is responsible if an injury to an alien results from an act of an individual or from mob violence, if the state has failed to exercise due diligence
Appendix 2: Responsibility of States for Damage

to prevent such injury and if local remedies have been exhausted without adequate redress for such failure, or if there has been a denial of justice. ARTICLE 12 A state is responsible if an injury to an alien results from an act of insurgents, if the state has failed to use due diligence to prevent the injury and if local remedies have been exhausted without adequate redress for such failure. ARTICLE 13 (a) In the event of an unsuccessful revolution, a state is not responsible when an injury to an alien results from an act of the revolutionists committed after their recognition as belligerents either by itself or by the state of which the alien is a national. (b) In the event of a successful revolution, the state whose government is established thereby is responsible under Article 7, if an injury to an alien has resulted from a wrongful act or omission of the revolutionists comnmitted at any time after the inception of the revolution. ARTICLE 14 A state is responsible if an injury to an alien results from an act, committed within its territory, which is attributable to another state, only if it has failed to use due diligence to prevent such injury. ARTICLE 15 (a) A state is responsible to another state which claims in behalf of one of its nationals only insofar as a beneficial interest in the claim has been continuously in one of its nationals down to the time of the presentation of the claim. (b) A state is responsible to another state which claims in behalf of one who is not its national only if (1) the beneficiary has lost its nationality by operation of law, or (2) the interest in the claim has passed from a national to the beneficiary by operation of law. ARTICLE 16 (a) A state is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national. (b) A state is not relieved of responsibility if injury is sustained by a foreign corporation, or if a claim is made on behalf of a foreign corporation, because one or more of the shareholders of such corporation possessed or possesses its nationality. (c) A state is not relieved of responsibility as a consequence of any provision in its own law that an alien should be considered its national for a particular purpose.
440
ARTICLE 17 A state is not relieved of responsibility as a consequence of any provision in its own law or in an agreement with an alien which attempts to exclude responsibility by making the decisions of its own courts final; nor is it relieved of responsibility by any waiver by the alien of the protection of the state of which he is a national. ARTICLE 18 Any dispute between states parties to this convention, with respect to the interpretation or application of the provisions of this convention, which is not settled by negotiation and which is not referred to arbitration under a general or special arbitration treaty, shall be referred to the Permanent Court of International Justice, and may be brought before the Permanent Court of International Justice by either party to the dispute.
Appendix 3
DRAFT CONVENTION ON TERRITORIAL WATERS*

ARTICLE 1 The territorial waters of a state consist of its marginal sea and its inland waters. ARTICLE 2 The marginal sea of a state is that part of the sea within three miles (60 to the degree of longitude at the equator) of its shore measured outward from the mean low water mark or from the seaward limit of a bay or river-mouth. ARTICLE 3 The inland waters of a state are the waters inside its marginal sea, as well as the waters within its land territory. ARTICLE 4 The high sea is that part of the sea outside marginal seas. ARTICLE 5 The seaward limit of a bay or river-mouth the entrance to which does not exceed ten miles in width is a line drawn across the entrance. The seaward limit of a bay or river-mouth the entrance to which exceeds ten miles in width is a line drawn across the bay or river-mouth where the width of the bay or river-mouth first narrows to ten miles. ARTICLE 6 When the waters of a bay or river-mouth which lie within the seaward limit thereof are bordered by the territory of two or more states, the bordering states may agree upon a division of such waters as inland waters; in the absence of such agreement, the marginal sea of each state shall not be measured from the seaward limit but shall follow the sinuosities of the shore in the bay or rivermouth.
* Reproduced with permission from 23 Am. J. Int'l L. (Spec. Supp.) 243 (1929), The American Society of International Law.

ARTICLE 7 The marginal sea around an island, or around land exposed only at some stage of the tide, is measured outward three miles therefrom in the same manner as from the mainland. ARTICLE 8 In the absence of special agreement to the contrary, the waters of a strait are territorial waters in those parts where the width of the strait does not exceed six miles. ARTICLE 9 In the absence of special agreement to the contrary, where two or more states border upon a strait, the territorial waters of each state extend to the middle of the strait in those parts where the width does not exceed six miles. ARTICLE 10 A strait connecting high seas shall remain open to navigation by the private and public vessels of all states, including vessels of war. ARTICLE 11 Where the delimitation of marginal seas would result in leaving a small area of high sea totally surrounded by marginal seas of a single state, such area is assimilated to the marginal sea of that state. ARTICLE 12 The provisions of this convention relating to the extent of territorial waters do not preclude the delimitation of territorial waters in particular areas in accordance with established usage. ARTICLE 13 The sovereignty of a state extends to the outer limit of its marginal seas. ARTICLE 14 A state must permit innocent passage through its marginal seas by the vessels of other states, but it may prescribe reasonable regulations for such passage. ARTICLE 15 A state may not exercise jurisdiction in respect of an act committed in violation of its criminal law on board a vessel of another state in the course of innocent passage through its marginal seas, unless the act has conesquences outside the vessel and tends to disturb the peace, order or tranquillity of the state.
Appendix 3: Territorial Waters

ARTICLE 16 A state may not exercise civil jurisdiction over a vessel of another state while it is in course of innocent passage through the marginal sea, except in respect of an act committed by the vessel during the course of that innocent passage and not relating solely to the internal economy of the vessel. ARTICLE 17 A state may exercise jurisdiction over a vessel of another state which is in its territorial waters for purposes other than innocent passage through its marginal sea to the same extent as over a vessel in port. However, a vessel engaged on a bona fide voyage which is not approaching, entering or leaving a port of the littoral state, and which enters territorial waters or breaks innocent passage because of distress orforce majeure, shall, together with the persons and property on board, be immune from all penalties, dues or exactions which might otherwise have been incurred by reason of its presence in territorial waters. ARTICLE 18 In the absence of special agreement to the contrary, a state may exercise jurisdiction over a vessel of another state which is in one of its ports, but in the absence of a request by the master or officer in charge for the aid of local authorities a state will not ordinarily exercise jurisdiction in matters relating solely to the internal economy of the vessel. ARTICLE 19 A state may not exercise jurisdiction over a vessel of war, or other public vessel not engaged in commerce, of another state; but while such a vessel is in territorial waters it must observe port, harbor and navigation laws and regulations, and it may at any time be requested or required to depart. ARTICLE 20 The navigation of the high sea is free to all states. On the high sea adjacent to the marginal sea, however, a state may take such measures as may be necessary for the enforcement within its territory or territorial waters of its customs, navigation, sanitary or police laws or regulations, or for its immediate protection. ARTICLE 21 A state may continue on the high sea the pursuit of a vessel of another state and may effect its arrest for a violation of its law, if such pursuit was begun while the vessel was in the territorial waters of that state.
444
ARTICLE 22 The term vessel, as used in this convention, unless otherwise indicated, means a privately owned and privately operated vessel or a vessel the legal status of which is assimilated to that of such a vessel. ARTICLE 23 Any dispute between states parties to this convention, with respect to the interpretation or application of the provisions of this convention, which is not settled by negotiation and which is not referred to arbitration under a general or special arbitration treaty, shall be referred to the Permanent Court of International Justice, and may be brought before the Permanent Court of International Justice by either party to the dispute.
Appendix 4
DRAFT CONVENTION ON DIPLOMATIC PRIVILEGES AND IMMUNITIES*

SECTION I USE OF TERMS ARTICLE 1 USE OF TERMS As the terms are used in this convention: (a) A "state" is a member of the community of nations which maintains diplomatic relations with other members of the community of nations. (b) A "mission" consists of a person or a group of persons publicly sent by one state to another state to perform diplomatic functions. (c) A "sending state" is a state which sends a mission to another state. (d) A "receiving state" is a state to which a mission is sent by another state. (e) A "member of a mission" is a person authorized by the sending state to take part in the performance of the diplomatic functions of a mission. (f) A "chief of mission" is a member of a mission authorized by the sending state to act in that capacity. (g) The "administrative personnel" consists of the persons employed by the sending state in the administrative service of a mission. (h) The "service personnel" consists of the persons in the domestic service of a mission or of a member of a mission. (i) The "family" of a member of a mission consists of those persons who belong to his family and are also members of his household. SECTION II PREMISES AND ARCHISTES ARTICLE 2 PREMISES OF A MISSION A receiving state shall permit a sending state to acquire land and buildings adequate to the discharge of the functions of the latter's mission, and to hold and dispose of such land and buildings in accordance with the law of the receiving state. ARTICLE 3 PROTECTION OF PREMISES 1. A receiving state shall prevent its agents or the agents of any of its political subdivisions from entering the premises occupied or used by a mission, or occupied by a member of a mission, without the consent of the chief of the mission; provided that notification of such occupation or use has been previously given to the receiving state.
* Reproduced with permission from 26 Am. J. Int'l L. (Supp) 19 (1932), C The American Society of International Law.

2. A receiving state shall protect the premises occupied or used by a mission, or occupied by a member of a mission, against any invasion or other act tending to disturb the peace or dignity of the mission or of the member of a mission; provided that notification of such occupation or use has been previously given to the receiving state. ARTICLE 4 EXEMPTIONS AS TO PREMISES 1. A receiving state shall not impose any taxes or charges, whether national or local, upon the interest of the sending state in movable or immovable property owned, leased, or possessed by the sending state for the purposes of its mission; provided that such exemption need not be extended to charges for special services or assessments for local improvements. 2. A receiving state shall exempt from any form of attachment or execution the interest of a sending state in movable or immovable property owned, leased, or possessed by the sending state for the purposes of its mission. ARTICLE 5 ARCHIVES A receiving state shall protect the archives of a mission from any violation, and shall safeguard their confidential character, wherever such archives may be located within the territory of the receiving state, provided that notification of their location has been previously given to the receiving state. ARTICLE 6 ASYLUM A sending state shall not permit the premises occupied or used by its mission or by a member of its mission to be used as a place of asylum for fugitives from justice. ARTICLE 7 PROTECTION OF PREMISES AND ARCHIVES OF DISCONTINUED MISSION 1. When a mission has been withdrawn or discontinued, the receiving state shall respect and safeguard the archives of the mission and the interest of the sending state in the premises and property held by the sending state for the purposes of its mission. 2. When a mission has been withdrawn or discontinued, the sending state may entrust to a mission of another state, acceptable to the receiving state, the custody of the archives and of the premises and property of the sending state held for the purposes of its mission. SECTION III SELECTION AND RECALL OF MEMBERS AND PERSONNEL OF A MISSION ARTICLE 8 SELECTION OF MEMBERS OF A MISSION A sending state may send as a member of its mission, other than the chief of mission, any person to whom no objection is made by the receiving state;
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provided, however, that a sending state may not send as a member of a mission a national of the receiving state without the express consent of the receiving state.
ARTICLE 9 SELECTION OF CHIEF OF MISSION

1. A sending state may send any person as a chief of mission, subject to agreation: (a) Before appointing a person to be a chief of mission, a sending state shall make inquiry of the receiving state as to the acceptability of the person whose appointment is contemplated. (b) When such inquiry has been made, the receiving state shall indicate, without obligation to communicate reasons, whether or not such person is acceptable. (c) A sending state shall not appoint a person as chief of mission if the receiving state has indicated that such person is not acceptable. 2. The preceding paragraph of this article shall not apply to the sending of a person to be the chief of a special mission.
ARTICLE 10 SELECTION OF ADMINISTRATIVE AND SERVICE PERSONNEL

A sending state may send or employ as members of the administrative personnel or of the service personnel of its mission any persons to whom no objection is made by the receiving state.
ARTICLE 11 OFFICIAL LISTS

A sending state shall communicate to the receiving state, upon request of the latter, a list of the members of its mission, of their families, and of the administrative and service personnel.
ARTICLE 12 RECALL OF MEMBERS OF A MISSION

1. A receiving state may at any time request a sending state to recall a member of a mission who has become persona non grata. 2. If a sending state refuses, or after a reasonable time fails, to recall a member of a mission whose recall has been requested by the receiving state, the receiving state may declare the functions of such person as a member of a mission to have been terminated.
ARTICLE 13 OBJECTIONABLE PERSONNEL

A receiving state may at any time declare that a person who is a member of the administrative personnel or of the service personnel of a mission is objectionable, and the sending state shall thereupon terminate such person's connection with its mission.

SECTION IV COMMUNICATIONS AND TRANSIT ARTICLE 14 FREEDOM OF COMMIINICATIONS 1. A receiving state shall freely permit and protect official communications by whatever available means, including the employment of messengers provided with passports ad hoc and the use of codes and cipher: (a) between a mission or the members of a mission and the sending state; (b) between a mission or the members of a mission and other officers of the sending state upon the territory of the receiving state; (c) between a mission of the sending state and a mission of another state sent to the same receiving state; (d) between a mission of the sending state and missions and consulates of the same state in other states; (e) between a mission of the sending state and the agents of public international organizations, such as the Secretary-General of the League of Nations, the Director-General of the Pan American Union, the Registrar of the Permanent Court of International Justice, and the Secretary General of the Permanent Court of Arbitration. 2. A receiving state shall freely permit and protect communications between a mission or members of a mission of the sending state and the nationals of the sending state within the territory of the receiving state. 3. A state other than the receiving state and the sending state shall protect and facilitate the transit of such communications and of messengers engaged in connection therewith. ARTICLE 15 TRANSIT THROIIGH THIRD STATE When a member of a mission, a member of his family, or a member of the administrative personnel is en route to or from his post in the receiving state, a third state shall permit his transit and shall accord to him during the transit such privileges and immunities as are necessary to facilitate his transit; provided that the third state has recognized the government of the sending state and is notified of the official character of such person. SECTION V PERSONAL PRIVILEGES AND IMMUNITIES ARTICLE 16 BEGINNING OF IMMUNITIES A receiving state shall accord to a member of a mission, to a member of his family, and to a member of the administrative personnel the privileges and immunities respectively provided for in this convention, as from the time of such person's entry upon the territory of the receiving state, or, if the person is already within the territory of the receiving state, as from the time of his becoming such a member.
Appendix 4: Diplomatic Privileges and Immunities ARTICLE 17 PERSONAL PROTECTION AND SECURITY
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A receiving state shall protect a member of a mission and the members of his family from any interference with their security, peace, or dignity.
ARTICLE 18 NON-LIABILITY FOR OFFICIAL ACTS

A receiving state shall not impose liability on a person for an act done by him in the performance of his functions as a member of a mission or as a member of the administrative personnel.
ARTICLE 19 EXEMPTION FROM JURISDICTION

A receiving state shall not exercise judicial or administrative jurisdiction over a member of a mission or over a member of his family.
ARTICLE 20 EXEMPTION FROM CUSTOMS DUTIES

A receiving state shall exempt a member of a mission from payment of customs duties or other import or export charges upon articles intended for the official use of a mission, or for the personal use of a member of a mission or of his family.
ARTICLE 21 PROHIBITED GOODS

A receiving state may refuse to permit a member of a mission, a member of his family, or a member of the administrative or service personnel, to bring into its territory articles the importation of which is prohibited by its general laws; or to take out of its territory articles the exportation of which is prohibited by its general laws.
ARTICLE 22 EXEMPTION FROM TAXATION

A receiving state shall not impose any taxes, whether national or local, (a) upon the person of a member of a mission or of a member of his family; (b) upon the salary of a member of a mission, or of a member of the administrative or service personnel, paid by the sending state; (c) upon the income, derived from sources outside the receiving state, of a member of a mission, or of a member of his family, or of a member of the administrative or service personnel not a national of the receiving state; (d) upon tangible movable property of a member of a mission unless used or employed in a business or profession, other than that of the mission, engaged in or practiced within the territory of the receiving state; (e) upon the interest of a member of a mission in immovable property used as his residence or for the purposes of the mission; provided that such exemption need not be extended to charges for special services or to assessments for local improvements.

ARTICLE 23 ADMMSTRATIVE AND SERVICE PERSONNEL Subject to the provisions of this convention, a receiving state may exercise jurisdiction over any member of the administrative or service personnel of a mission, only to an extent and in such a manner as to avoid undue interference with the conduct of the business of the mission. ARTICLE 24 ENGAGING IN BUSINESS OR PROFESSION 1. A receiving state may refuse to permit a member of a mission or a member of his family to engage in a business or to practice a profession within its territory, other than that of the mission, or to waive in behalf of such a person any of its requirements for engaging in a business or for practicing a profession. 2. A receiving state may refuse to accord the privileges and immunities provided for in this convention to a member of a mission or to a member of his family who engages in a business or who practices a profession within its territory, other than that of the mission, with respect to acts done in connection with that other business or profession. ARTICLE 25 SUBMISSION TO JURISDICTION When a member of a mission or a member of his family institutes a proceeding in a court of the receiving state, the receiving state may exercise jurisdiction over such person for the purposes of that proceeding; in the absence of a renunciation or waiver of the immunity from execution, however, no execution may issue in consequence of that proceeding against him or against his property. ARTICLE 26 RENUNCIATION OF PRIVILEGES AND IMMUNITIES A sending state may renounce or waive any of the privileges or immunities provided for in this convention: the renunciation or waiver may be made only by the government of the sending state if it concerns the privileges or immunities of the chief of mission; in other cases, the renunciation or waiver may be made either by the government of the sending state or by the chief of mission. ARTICLE 27 EXTRADITION A receiving state and a sending state shall apply the provisions of an extradition treaty in force between them to a person who is charged with having committed, while a member of a mission of the sending state or a member of the administrative personnel of such a mission, an offense against the law of the sending state, if such person would have been subject to extradition under such treaty, had the offense been committed in the territory of the sending state.
Appendix 4: Diplomatic Privileges and Immunities ARTICLE 28 NATIONALITY OF CHILDREN OF MEMBER OF A MISSION
451
A receiving state may not impose its nationality upon the child of a member of a mission or of a member of his family who is not a national of the receiving state, solely by reason of the birth of such child upon its territory.
ARTICLE 29 TERMINATION OF PRIVILEGES

AND IMMUNITIES When the functions of a member of a mission have been terminated, a receiving state shall continue to accord to him and to the members of his family the privileges and immunities provided for in this convention, until such persons have had reasonable opportunity to leave the territory of the receiving state.
ARTICLE 30 DEATH OF PERSONS CONNECTED

WITH A MISSION Upon the death of a national of a sending state who is a member of a mission, a member of his family, or a member of the administrative or service personnel, the receiving state shall permit the withdrawal of the tangible movable property owned by such person, imposing upon such withdrawal no conditions or restrictions other than those which prevailed for the withdrawal of such property by the person at the time of his death; and it shall impose no tax upon the withdrawal or devolution of property so withdrawn.
SECTION VI INTERPRETATION ARTICLE 31 INTERPRETATION

1. If there should arise between the High Contracting Parties a dispute of any kind relating to the interpretation or application of the present convention, and if such dispute cannot be satisfactorily settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties to the dispute providing for the settlement of international disputes. 2. In case there is no such agreement in force between the parties to the dispute, the dispute shall be referred to arbitration or judicial settlement. In the absence of agreement on the choice of another tribunal, the dispute shall, at the request of any one of the parties to the dispute, be referred to the Permanent Court of International Justice, if all the parties to the dispute are parties to the Protocol of December 16, 1920, relating to the Statute of the Court; and if any of the parties to the dispute is not a party to the Protocol of December 16, 1920, to an arbitral tribunal constituted in accordance with the provisions of the Convention for the Pacific Settlement of International Disputes, signed at The Hague, October 18, 1907.
Appendix 5
DRAFT CONVENTION ON THE LEGAL POSITION AND FUNCTIONS OF CONSULS*
SECTION I USE OF TERMS ARTICLE 1 USE OF TERMS As the terms are used in this convention: (a) A "consul" is a person entitled to exercise consular functions as an agent of a state in the territory of another state. (b) A "principal consul" is the consul in charge of the exercise of consular functions in a consular district. (c) A "consul of career" is a consul who is a permanent official of the sending state and who is engaged in no business or profession in the territory of the receiving state other than that of consul. (d) "Consular functions" are functions such as those described in Article 11 of this convention which a state may exercise through agents in the territory of another state in the interest of its nationals, or of its commerce, or in connection with the administration of its laws. (e) A "consular office" is the room or rooms which a consul occupies in the exercise of consular functions. (f)A "consular district" is the area within which a consul is entitled to exercise consular functions. (g) A "sending state" is a state which appoints a person to exercise consular functions. (h) A "receiving state" is a state which admits a person to the exercise of consular functions within its territory. (i) A "national" of a state is a person who possesses the nationality of that state or to whom that state is entitled to extend its protection in the territory of another state. (0) A "vessel of any state" is any water or air craft to which that state is entitled to extend its protection on the high seas or in the territory of another state.
* Reproduced with permission from 26 Am. J. Int'lL. (Supp.) 193 (1932), 0 The American Society of International Law.

SECTION II ESTABLISHMENT OF CONSULAR STATUS ARTICLE 2 DUTY TO PERMIT CONSULAR ACTIVITY A state shall permit any state with which it maintains diplomatic relations to have consuls at any port, city or place within its territory where any other state is permitted to have consuls. ARTICLE 3 ACQUISITION OF CONSULAR STATUS A person becomes a consul through his appointment by a sending state to exercise consular functions and his admission to the exercise of such functions by the receiving state. ARTICLE 4 REQUEST FOR ADMISSION A sending state, when requesting another state to admit a person to the exercise of consular functions, shall communicate to that state satisfactory evidence of the appointment and shall indicate the character and grade of service to which such person has been appointed and the consular district to which he has been assigned. ARTICLE 5 ADMISSION A state which has been requested to admit a person to the exercise of consular functions, admits such person by any indication of its consent to his exercise of consular functions. Such admission may be provisional. An exequatur issued to such person by the appropriate authority of the receiving state shall be conclusive evidence of his admission. A state may refuse to permit a person to exercise consular functions within its territory until it has issued to him an exequatur or other evidence of his admission. ARTICLE 6 PRESUMPTION OF RECOGNITION (a) A sending state shall not be presumed to have recognized the authority in actual control of a territory as entitled to such control because it has appointed a person or has permitted a person previously appointed to exercise consular functions within such territory, nor because such person has applied to that authority for permission to exercise consular functions. (b) A state shall not be presumed to have recognized a government because it has raised no objection to the exercise of consular functions within its territory by a person appointed for that purpose by such government. ARTICLE 7 REFUSAL TO ADMIT Subject to the provisions of article 2 of this convention, a state may refuse to admit a person to the exercise of consular functions within its territory without assigning reasons for such refusal.
Appendix 5: Legal Position and Functions of Consuls ARTICLE 8 WITHDRAWAL OF CONSENT
455
A state may at any time withdraw its consent to a person's exercise of consular functions within its territory. Except in urgent cases, a receiving state should not withdraw its consent without giving the sending state opportunity to provide against the interruption of consular activities.
ARTICLE 9 AD INTERIM APPOINTMENTS

In case of death, disability, or absence of a consul, a substitute authorized by the sending state may, upon notification to the receiving state, temporarily exercise consular functions. Such substitute shall enjoy consular privileges while exercising such functions.
ARTICLE 10 TERMINATION OF CONSULAR STATUS

A person ceases to be a consul upon: (a) Notification to the receiving state of the termination of his authority by the sending state; or (b) Termination of the consent of the receiving state; or (c) Extinction of the sending or the receiving state.
SECTION III DUTIES OF THE RECEIVING STATE WITH RESPECT TO CONSULAR FUNCTIONS ARTICLE 11 CONSULAR FUNCTIONS
A receiving state shall permit a consul to perform any act authorized by a treaty in force between the sending state and the receiving state or authorized by local custom; and to exercise the following functions as agent of the sending state within the consular district, provided such exercise does not involve the use of compulsion by the sending state within the territory of the receiving state; this enumeration shall not preclude the exercise by a consul of any other function conferred upon him by the sending state and not forbidden by the law or the practice of the receiving state: (a) To authenticate copies and translations of official documents of the sending state; to authenticate copies and translations of official documents of the receiving state in so far as they concern the interests of the sending state, of its national, or of its vessel; to receive, authenticate the signatures of, keep in custody and authenticate copies of acts of nationals of the sending state, and acts of other persons concerning the interests of the sending state, of its national or of its vessel or concerning the interests of other persons in so far as their interests lie within the territory of the sending state; to serve legal documents, issued by authority of the sending state, relating to civil, or commercial matters, upon nationals of that state; and to take and authenticate copies of protests, depositions and declarations made in the presence of the consul by a national of the sending state. (b) To issue passports to nationals of the sending state; to visa passports and to issue documents relating to entry into and travel within the territory of that

state; and to visa invoices and certificates of origin of goods destined to the territory of that state. (c) To register nationals of the sending state and the births, deaths, and marriages of such nationals, and to issue certificates thereof, without, however, releasing the interested persons from any duty imposed upon them by the local law. (d) To communicate with, to advise and to adjust differences between nationals of the sending state within the consular district; to visit such nationals especially when they are imprisoned or detained by authorities of the receiving state; to assist such nationals in proceedings before or relations with such authorities; and to inquire into any incidents which have occurred within the consular district affecting the interests of such nationals. (e) To inquire in regard to and to take measures for the preservation and protection of the estate within the consular district of a deceased national of the sending state; and if no other administration is provided by the local law to administer such estate subject to that law. (f) To take measures for the preservation and protection of the interests within the consular district of a national of the sending state who is absent, incompetent or a minor; to represent such national for the purpose of protecting his interests, if he is not otherwise represented, in proceedings before the courts or other authorities of the receiving state; and in such case, to receive for remission to the person entitled thereto all moneys or property found by the appropriate authority to be due such person, subject to requirements of the receiving state for safeguarding the rights of the interested persons. (g) To visit and inspect vessels of the sending state; to inspect, receive and keep in custody the papers of such vessels; to accompany the local authorities upon any visit to such vessels other than for ordinary customs or sanitary inspection; to take such measures as the sending state directs with respect to the property on such vessels of deceased seamen; to supervise the discharge or engagement of the master or seamen on such vessels; and to adjust matters pertaining to the internal order and discipline of such vessels including differences between members of the crew pertaining to wages and the execution of contracts related thereto, to the extent that the authorities of the receiving state do not exercise jurisdiction. (h) To take measures for the salvage of a vessel of the sending state and of its cargo, to assist in the salvage of cargo from any other vessel if such cargo is owned by a national of the sending state, and to initiate or participate in proceedings for adjusting claims arising from losses suffered by a vessel of the sending state or from salvage in which a national of the sending state is interested. (i) To visit and inspect vessels of any state arriving within the consular district, destined for a port of the sending state, for the purpose of assuring compliance with the sanitary laws of such state.
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(j) To take measures for protecting a national, a vessel or any other interest of the sending state from injury as a result of conditions in or incidents occurring within the consular district. (k) To study conditions in and incidents occurring within the consular district and to report thereon to the sending state. ARTICLE 12 COMMUNICATION WITH AUTHORITIES OF THE RECEIVING STATE A receiving state shall permit a consul to address the appropriate authorities within the consular district concerning matters within the scope of his consular functions. If the sending state has no diplomatic representative accredited to the receiving state, the receiving state shall permit a principal consul to address directly the government of the receiving state. ARTICLE 13 COMMUNICATION WITH AUTHORITIES OF THE SENDING STATE A receiving state shall permit a consul to communicate with the government of the sending state, with the diplomatic representatives and other consuls of the sending state in the territory of the receiving state, with vessels of the sending state, and with the consuls of other states in the consular district, by any available means including the employment of messengers provided with passports ad hoc, and shall permit the use of codes and cipher in such communications. ARTICLE 14 NOTIFICATIONS TO CONSUL A receiving state shall promptly notify the nearest consul through its competent local authorities: (a) Of the death within its territory of a person known to be a national of the sending state, known to have died leaving property within the territory of the receiving state and not known to have any heirs or testamentary executors within that territory; (b) Of the wreck known to have occurred upon its coast or within its territory of a vessel of the sending state; (c) Of the detention by authority of the receiving state of a vessel of the sending state. SECTION IV DUTIES OF RECEIVING STATE WITH RESPECT TO THE CONSULAR OFFICE, PROPERTY AND PERSONNEL ARTICLE 15 PROTECTION AND EXEMPTIONS OF CONSULS A receiving state shall accord to a consul within its territory: (a) Respect and protection adequate for the exercise of his consular functions;

(b) Subject to the condition of reciprocity, every exemption and immunity which it accords to any other consul of the same character and grade of service in the same place. ARTICLE 16 CONSULAR ARCHIVES A receiving state shall prevent the violation of consular archives by its agents of any character and it shall not require a consul to produce in court or elsewhere a document from such archives, or to testify as to their contents. The consul decides, subject to diplomatic recourse by the receiving state, whether a document is part of the archives. ARTICLE 17 CONSULAR OFFICE A receiving state shall prevent the invasion of a consular office by its agents of any character, provided such office is used solely for consular purposes; and shall furnish special protection to such office and the property used in connection therewith when necessary to defend them from attacks directed against them because of their official character. ARTICLE 15 COAT OF ARMS AND FLAG A receiving state shall permit a consul to designate the consular office by giving conspicuous display to the coat of arms of his state, with an appropriate inscription; and to display the flag of his state over the consular office and over any vessel or vehicle employed in the exercise of consular functions, unless he is notified by the appropriate authorities of the receiving state of special circumstances rendering such display of the flag inexpedient. ARTICLE 19 EXEMPTIONS IN REGARD TO PUBLIC CONSULAR PROPERTY A receiving state shall exempt a sending state from any tax or charge whether national or local upon an interest in movable or immovable property employed by the sending state in the exercise of consular functions, provided that such exemption need not extend to charges for special services or assessments for local improvements; and it shall exempt such interest of the sending state from any form of attachment or execution. ARTICLE 20 ARREST A receiving state shall exempt a consul from arrest, except for a serious offense. In case of the arrest of a consul, the receiving state shall give prompt notice to the sending state. ARTICLE 21 LOCAL JURISDICTION A receiving state shall exempt a person from liability and from its judicial and administrative jurisdiction for an act done by him while he was consul in the performance of consular functions which he was entitled to exercise; the
Appendix 5: Legal Position and Functions of Consuls
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receiving state decides, subject to diplomatic recourse by the sending state, whether the act was done in the performance of such functions. ARTICLE 22 ATTENDANCE AS WITNESS A receiving state shall exempt a consul from attendance as a witness at the trial of a civil case; it may require a consul to give testimony orally or in writing at his residence or office or to attend as a witness at the trial of a criminal case, but such requirements shall be enforced with due regard for the dignity of the consul and his convenience in the exercise of his functions; it shall not require a consul to disclose information received in the performance of consular functions if such disclosure would be incompatible with the national interests of the sending state. ARTICLE 23 MILITARY AND OTHER PUBLIC SERVICE A receiving state shall exempt a consul from all military and other public service and from billeting, requisitions, contributions and forced loans. ARTICLE 24 TAXATION A receiving state shall exempt a consul from any tax or charge whether national or local (a) Upon his person, upon his income as a consul and upon his income derived from sources outside the receiving state; (b) Upon his interest in movable or immovable property used in the exercise of consular functions, provided that such exemption need not be extended to charges for special services or to assessments for local improvements. ARTICLE 25 CUSTOMS DUTIES A receiving state shall exempt a consul from customs duties upon articles imported for his official or personal use or for the use of his family. ARTICLE 26 CONSULS OTHER THAN CONSULS OF CAREER A receiving state is not required to grant the exemptions provided for in Articles 20, 23, 24 and 25, to a consul who is a national of the receiving state or to a consul who is not a consul of career, provided that it shall exempt every consul from taxes upon his income as a consul and from customs duties upon property imported for official use. ARTICLE 27 OFFICIALS EMPLOYED IN CONSULATE A receiving state shall grant the exemptions accorded to consuls in the final clause of Article 22 to all persons employed in a consular office, and it shall grant the exemptions accorded to consuls in Articles 23, 24, and 25 to a person who is not a national of the receiving state employed as a career official in a consular office.

ARTICLE 28 EXTRADITION OF CONSUL A receiving state and a sending state shall apply the provisions of an extradition treaty in force between them to a person who is charged with having committed, while a consul of the sending state or while employed in a consular office of the sending state, an offense against the law of the sending state, in case such person would have been subject to extradition under such treaty if the offense had been conmmitted in the territory of the sending state, provided that the receiving state does not assume jurisdiction to punish such person for the same act. SECTION V DUTIES OF THE SENDING STATE ARTICLE 29 OBSERVANCE OF LOCAL LAW A sending state shall require its consul to observe scrupulously the law of the receiving state, in so far as that law is not inconsistent with the provisions of this convention or with treaties in force between the sending and the receiving states. ARTICLE 30 SEPARATION OF CONSULAR ARCHIVES A sending state shall require its consul to keep the consular archives separate from private archives. ARTICLE 31 NOTIFICATION OF THE LOCATION OF CONSULAR OFFICE A sending state shall require its consul promptly to notify the appropriate authorities of the receiving state of the location of the consular office which he occupies and of any change in the location of such office. ARTICLE 32 ASYLUM AND ABUSE OF IMMUNITY A sending state shall not permit its consul: (a) To allow the consular office to be used as a place of asylum by fugitives from justice. (b) To take advantage of the special position provided for the consular office by this convention for any purpose not connected with the exercise of his consular functions. (c) To employ the coat of arms or the flag of the sending state for the purpose of protecting fugitives from justice. SECTION VI APPLICABILITY OF THE CONVENTION ARTICLE 33 SPECIAL CONSULAR CONVENTIONS Nothing in the present convention shall affect the provisions of any agreement in force between any of the parties conferring special functions on consuls; nor shall this convention preclude any of the parties from entering into an agreement inconsistent with this convention in so far as it may concern only the interests of the parties thereto.
Appendix 5: Legal Position and Functions of Consuls ARTICLE 34 INTERPRETATION
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1. If there should arise between the High Contracting Parties a dispute of any kind relating to the interpretation or application of the present convention, and if such dispute cannot be satisfactorily settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties to the dispute providing for the settlement of international disputes. 2. In case there is no such agreement in force between the parties to the dispute, the dispute shall be referred to arbitration or judicial settlement. In the absence of agreement on the choice of another tribunal, the dispute shall, at the request of any one of the parties to the dispute, be referred to the Permanent Court of International Justice, if all the parties to the dispute are parties to the Protocol of December 16, 1920, relating to the Statute of that Court; and if any of the parties to the dispute is not a party to the Protocol of December 16, 1920, to an arbitral tribunal constituted in accordance with the Convention for the Pacific Settlement of International Disputes, signed at The Hague, October 18, 1907.
Appendix 6
DRAFT CONVENTION ON COMPETENCE OF COURTS IN REGARD

TO FOREIGN STATES*
PART I USE OF TERMS ARTICLE 1 As the terms are used in this Convention: (a) A "State" is a member of the community of nations. "State" includes the government of a State and the head of State, but does not include a political subdivision of a State. (b) A "court" of a State is a judicial tribunal, or an administrative tribunal exercising judicial or quasi-judicial functions, created by the State or by a political subdivision thereof. (c) A "complainant" is a party which institutes a proceeding in a court. (d) A "respondent" is a party against which a proceeding is instituted in a court. (e) A "counterclaim" is a claim by a respondent against a complainant. (f) A "direct counterclaim" is a counterclaim arising out of the facts or transactions upon which a complainant's claim is based. (g) An "indirect counterclaim" is a counterclaim arising out of facts or transactions extrinsic to those upon which a complainant's claim is based. PART II STATES AS COMPLAINANTS IN THE COURTS OF OTHER STATES ARTICLE 2 A State shall not refuse, on the ground that the complainant is a State, to permit such State to institute a proceeding in its courts. ARTICLE 3 A State may refuse to permit another State to institute or to continue a proceeding in its courts if it does not recognize that State or if diplomatic relations are not maintained between the two States.
* Reproduced with permission from 26 Am. J. Int'lL. (Supp.) 455 (1932), 0 The American Society of International Law.

ARTICLE 4 A State may refuse to permit another State to institute or to continue a proceeding in its courts if such other State fails or refuses to comply with the usual rules of the forum relative to the institution or continuation of proceedings, except as otherwise provided in Articles 6 and 18. ARTICLE 5 A complainant State, by instituting a proceeding in a court of another State, submits to the jurisdiction of that court in respect of a direct counterclaim. ARTICLE 6 A complainant State, by instituting a proceeding in a court of another State, submits to the jurisdiction of that court in respect of an indirect counterclaim only if that counterclaim is one for which the respondent could maintain an independent proceeding in that court against the complainant State. PART III STATES AS RESPONDENTS IN THE COURTS OF OTHER STATES ARTICLE 7 A State may not be made a respondent in a proceeding in a court of another State, except as otherwise provided in this Convention. ARTICLE 8 A State may be made a respondent in a proceeding in a court of another State (a) When it gives express consent at the time the proceeding is instituted; or (b) When, after notification of the proceeding, it takes any steps relating to the merits in that proceeding before asserting its immunity; or (c) When, by the contract upon which the proceeding is based, it has previously consented to the institution of such a proceeding; or (d) When, by treaty with the State in whose court the proceeding is brought, it has previously consented to the institution of such a proceeding; or (e) When it has previously, by law or regulation or declaration in force when the claim of the complainant arose, indicated that it would consent to the institution of such a proceeding. ARTICLE 9 A State may be made a respondent in a proceeding in a court of another State when the proceeding relates to rights or interests in, or to the use of, immovable property which is within the territory of such other State and which the respondent State owns or possesses or in which it has or claims an interest.
Appendix 6: Competence of Courts

ARTICLE 10 A State may be made a respondent in a proceeding in a court of another State when the proceeding relates to its acquisition by succession or gift of property subject to the jurisdiction of such other State. ARTICLE 11 A State may be made a respondent in a proceeding in a court of another State when, in the territory of such other State, it engages in an industrial, comercial, financial or other business enterprise in which private persons may there engage, or does an act there in connection with such an enterprise wherever conducted, and the proceeding is based upon the conduct of such enterprise or upon such act. The foregoing provision shall not be construed to allow a State to be made a respondent in a proceeding relating to its public debt. ARTICLE 12 A State may be made a respondent in a proceeding in a court of another State when the proceeding relates to its title, rights or obligations as the actual or beneficial owner of shares in a corporation or other association for profit organized under the laws of such other State. ARTICLE 13 If the law of a State permits a proceeding against property without requiring the joinder of any person as respondent, such a proceeding may be instituted in a court of the State against property in which another State has or claims an interest when, in accordance with this Convention, such other State might be made a respondent in respect of the claim or claims upon which that proceeding is based. PART IV PROCEDURE ARTICLE 14 A State which is a party to a proceeding in a court of another State shall in such proceeding conform to the procedural rules of the forum, except as otherwise provided in this Convention. ARTICLE 15 A complainant State, when it institutes a proceeding in a court of another State, shall give notice thereof to the government of that State through the diplomatic channel.

ARTICLE 16 A State may provide that a complainant State, when it institutes a proceeding in one of its courts, shall designate an agent within the jurisdiction of the court, authorized to represent it for the purposes of that proceeding. ARTICLE 17 A State may provide that when a proceeding is instituted in one of its courts by another State, the complainant shall indicate clearly that such proceeding is instituted by a State; and that the complainant, if it fails so to indicate, may not thereafter in that proceeding avail itself of the privileges and immunities which would otherwise appertain to it as a State. ARTICLE 18 A State which is a party to a proceeding in a court of another State shall not be required: (a) to produce documents concerning which it deems a disclosure incompatible with its general national interests; or (b) to produce evidence as to matters concerning which it deems a disclosure incompatible with its general national interests; or (c) to produce as a witness a person having diplomatic immunity; nevertheless, if a State declines to produce documents or evidence, the proceeding may be stayed or dismissed in the interests of justice. ARTICLE 19 When a party desires to institute a proceeding against a State in a court of another State, he shall apply to the court which, according to the law of the forum, has jurisdiction of such causes of action for permission to institute the proceeding; such permission shall not be given until after notice by the government of the State of the forum to the government of the State against which the proceeding is sought to be instituted and after reasonable opportunity is given to the latter State to object to the jurisdiction of the court. The proceeding shall be deemed to have been instituted when the permission is given. A State may provide that if permission is thus given, the complainant need not transmit to the respondent State any other notice or service of process which the law of the forum may require in the institution of a proceeding against a private person. Any further notices, orders or pleadings in the proceeding may be transmitted by the court to the representative of the respondent State duly designated for that purpose and in the event that no such representative is designated, to the principal diplomatic or nearest consular officer of the respondent State within the territory of the State of the forum. ARTICLE 20 A State shall permit another State to bring, through any specifically authorized agent, a claim of immunity in accordance with the provisions of this
Appendix 6: Competence of Courts

Convention, directly before the court for its decision. At the request of such
other State, the State of the forum, without obligation to comment on the merits of such a claim of immunity, shall transmit it to the court for its decision. ARTICLE 21 When, in accordance with this Convention, a State has become a party to a proceeding in a court of another State, its continuance or withdrawal as a party to that proceeding shall be determined in accordance with the law of the forum not inconsistent with this Convention. PART V ENFORCEMENT OF COURT ORDERS ARTICLE 22 A State shall not permit orders or judgments of its courts to be enforced against another State or its property, except as otherwise provided in this Convention. ARTICLE 23 A State may permit orders or judgments of its courts to be enforced against the property of another State not used for diplomatic or consular purposes: (a) When the property is immovable property; or (b) When the property is used in connection with the conduct of an enterprise such as is described in Article 11. In no case, however, shall a State permit any order or judgment of a punitive nature to be enforced against the property of another State. ARTICLE 24 A State against which a proceeding has been instituted in a court of another State in accordance with this Convention, shall be permitted to give such security as the court may deem sufficient for the satisfaction of any judgment which may be rendered against it and if this security is given, the State of the forum shall not permit other property of the respondent State to be proceeded against for the satisfaction of the judgment. ARTICLE 25 A State shall not permit orders or judgments of its courts to be enforced against property of another State until after that State has been notified and has been given adequate opportunity to object to such enforcement as not being in accordance with Articles 22, 23 or 24. PART VI GENERAL PROVISIONS ARTICLE 26 A State need not accord the privileges and immunities provided for in this Convention to such juristic persons as corporations or associations for profit

separately organized by or under the authority of another State, regardless of the nature and extent of governmental interest therein or control thereof. ARTICLE 27 Nothing in the present Convention shall affect the provisions of the Convention for the Unification of Certain Rules Concerning the Immunities of Stateowned Ships signed at Brussels, April 16, 1926, nor shall this Convention preclude any of the parties from entering into any agreement inconsistent with this Convention in so far as it may concern only the interests of the parties thereto. ARTICLE 28 1. If there should arise between the High Contracting Parties a dispute of any kind relating to the interpretation or application of the present Convention, and if such dispute cannot be satisfactorily settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties to the dispute providing for the settlement of international disputes. 2. In case there is no such agreement in force between the parties to the dispute, the dispute shall be referred to arbitration or judicial settlement. In the absence of agreement on the choice of another tribunal, the dispute shall, at the request of any one of the parties to the dispute, be referred to the Permanent Court of International Justice, if all the parties to the dispute are parties to the Protocol of December 16, 1920, relating to the Statute of that Court; and if any of the parties to the dispute is not a party to the Protocol of December 16,1920, to an arbitral tribunal constituted in accordance with the provisions of the Convention for the pacific settlement of international disputes, signed at The Hague, October 18, 1907.
Appendix 7
DRAFT CONVENTION ON PIRACY*

ARTICLE 1 As the terms are used in this convention: 1. The term "jurisdiction" means the jurisdiction of a state under international law as distinguished from municipal law. 2. The term "territorial jurisdiction" means the jurisdiction of a state under international law over its land, its territorial waters and the air above its land and territorial waters. The term does not include the jurisdiction of a state over its ships outside its territory. 3. The term "territorial sea" means that part of the sea which is included in the territorial waters of a state. 4. The term "high sea" means that part of the sea which is not included in the territorial waters of any state. 5. The term "ship" means any water craft or air craft of whatever size. ARTICLE 2 Every state has jurisdiction to prevent piracy and to seize and punish persons and to seize and dispose of property because of piracy. This jurisdiction is defined and limited by this convention. ARTICLE 3 Piracy is any of the following acts, committed in a place not within the territorial jurisdiction of any state: 1. Any act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends without bona fide purpose of asserting a claim of right, provided that the act is connected with an attack on or from the sea or in or from the air. If the act is connected with an attack which starts from on board ship, either that ship or another ship which is involved must be a pirate ship or a ship without national character. 2. Any act of voluntary participation in the operation of a ship with knowledge of facts which make it a pirate ship. 3. Any act of instigation or of intentional facilitation of an act described in paragraph 1 or paragraph 2 of this article. ARTICLE 4 1. A ship is a pirate ship when it is devoted by the persons in dominant control to the purpose of committing an act described in the first sentence of * Reproduced with permission from 26 Am. J. Int'lL. (Supp) 743 (1932), 0 The American Society of International Law.

paragraph 1 of Article 3, or to the purpose of committing any similar act within the territory of a state by descent from the high sea, provided in either case that the purposes of the persons in dominant control are not definitely limited to committing such acts against ships or territory subject to the jurisdiction of the state to which the ship belongs. 2. A ship does not cease to be a pirate ship after the commission of an act described in paragraph I of Article 3, or after the commission of any similar act within the territory of a state by descent from the high sea, as long as it continues under the same control. ARTICLE 5 A ship may retain its national character although it has become a pirate ship. The retention or loss of national character is determined by the law of the state from which it was derived. ARTICLE 6 In a place not within the territorial jurisdiction of another state, a state may seize a pirate ship or a ship taken by piracy and possessed by pirates, and things or persons on board. ARTICLE 7 1. In a place within the territorial jurisdiction of another state, a state may not pursue or seize a pirate ship or a ship taken by piracy and possessed by pirates; except that if pursuit of such a ship is commenced by a state within its own territorial jurisdiction or in a place not within the territorial jurisdiction of any state, the pursuit may be continued into or over the territorial sea of another state and seizure may be made there, unless prohibited by the other state. 2. If a seizure is made within the territorial jurisdiction of another state in accordance with the provisions of paragraph 1 of this article, the state making the seizure shall give prompt notice to the other state, and shall tender possession of the ship and other things seized and the custody of persons seized. 3. If the tender provided for in paragraph 2 of this article is not accepted, the state making the seizure may proceed as if the seizure had been made on the high sea. ARTICLE 8 If a pursuit is continued or a seizure is made within the territorial jurisdiction of another state in accordance with the provisions of paragraph 1 of Article 7, the state continuing the pursuit or making the seizure is liable to the other state for any damage done by the pursuing ship, other than damage done to the pirate ship or the ship possessed by pirates, or to persons and things on board.
Appendix 7: Piracy
ARTICLE 9 If a seizure because of piracy is made by a state in violation of the jurisdiction of another state, the state making the seizure shall, upon the demand of the other state, surrender or release the ship, things and persons seized, and shall make appropriate reparation. ARTICLE 10 If a ship seized on suspicion of piracy outside the territorial jurisdiction of the state making the seizure, is neither a pirate ship nor a ship taken by piracy and possessed by pirates, and if the ship is not subject to seizure on other grounds, the state making the seizure shall be liable to the state to which the ship belongs for any damage caused by the seizure. ARTICLE 11 1. In a place not within the territorial jurisdiction of any state, a foreign ship may be approached and on reasonable suspicion that it is a pirate ship or a ship taken by piracy and possessed by pirates, it may be stopped and questioned to ascertain its character. 2. If the ship is neither a pirate ship nor a ship taken by piracy and possessed by pirates, and if it is not subject to such interference on other grounds, the state making the interference shall be liable to the state to which the ship belongs for any damage caused by the interference. ARTICLE 12 A seizure because of piracy may be made only on behalf of a state, and only by a person who has been authorized to act on its behalf. ARTICLE 13 1. A state, in accordance with its law, may dispose of ships and other property lawfully seized because of piracy. 2. The law of the state must conform to the following principles: (a) The interests of innocent persons are not affected by the piratical possession or use of property, nor by seizure because of such possession or use. (b) Claimants of any interest in the property are entitled to a reasonable opportunity to prove their claims. (c) A claimant who establishes the validity of his claim is entitled to receive the property or compensation therefor, subject to a fair charge for salvage and expenses of administration. ARTICLE 14 1. A state which has lawful custody of a person suspected of piracy may prosecute and punish that person.

2. Subject to the provisions of this convention, the law of the state which exercises such jurisdiction defines the crime, governs the procedure and prescribes the penalty. 3. The law of the state must, however, assure protection to accused aliens as follows: (a) The accused person must be given a fair trial before an impartial tribunal without unreasonable delay. (b) The accused person must be given humane treatment during his confinement pending trial. (c) No cruel and unusual punishment may be inflicted. (d) No discrimination may be made against the nationals of any state. 4. A state may intercede diplomatically to assure this protection to one of its nationals who is accused in another state. ARTICLE 15 A state may not prosecute an alien for an act of piracy for which he has been charged and convicted or acquitted in a prosecution in another state. ARTICLE 16 The provisions of this convention do not diminish a state's right under international law to take measures for the protection of its nationals, its ships and its commerce against interference on or over the high sea, when such measures are not based upon jurisdiction over piracy. ARTICLE 17 1. The provisions of this convention shall supersede any inconsistent provisions relating to piracy in treaties in force among parties to this convention, except that such inconsistent provisions shall not be superseded in so far as they affect only the interests of the parties to such treaties inter se. 2. The provisions of this convention shall not prevent a party from entering into an agreement concerning piracy containing provisions inconsistent with this convention which affect only the interests of the parties to that agreement inter
se.
ARTICLE 18 The parties to this convention agree to make every expedient use of their powers to prevent piracy, separately and in cooperation. ARTICLE 19 1. If there should arise between the High Contracting Parties a dispute of any kind relating to the interpretation or application of the present convention, and if such dispute cannot be satisfactorily settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties to the dispute providing for the settlement of international disputes.
Appendix 7: Piracy
473
2. In case there is no such agreement in force between the parties to the dispute, the dispute shall be referred to arbitration or judicial settlement. In the absence of agreement on the choice of another tribunal, the dispute shall, at the request of any one of the parties to the dispute, be referred to the Permanent Court of International Justice, if all the parties to the dispute are parties to the Protocol of December 16, 1920, relating to the Statute of that Court; and if any of the parties to the dispute is not a party to the Protocol of December 16, 1920, to an arbitral tribunal constituted in accordance with the provisions of the Convention for the Pacific Settlement of International Disputes, signed at The Hague, October 18, 1907.
Appendix 8
DRAFT CONVENTION ON EXTRADITION*
PART I USE OF TERMS ARTICLE 1 USE OF TERMS As the terms are used in this Convention: (a) "Extradition" is the formal surrender of a person by a State to another State for prosecution or punishment. (b) A "State" is a member of the community of nations. (c) A State's "territory" comprises its land and territorial waters, and the air above its land and territorial waters. (d) A "requesting State" is a State which requests of another State the extradition of a person, or the provisional arrest of a person with a view to extradition, and the delivery of property. (e) A "requested State" is a State of which the extradition of a person, or the provisional arrest of a person with a view to extradition, and the delivery of property, is requested by another State. (f) A "person claimed" is a person whose extradition is requested. (g) A "requisition" is a formal request for extradition. (h) An "act" includes a failure to act. PART II ACTS ARTICLE 2 EXTRADITABLE ACTS Except as otherwise provided in this Convention, a requested State shall extradite a person claimed, for an act (a) For which the law of the requesting State, in force when the act was committed, provides a possible penalty of death or deprivation of liberty for a period of two years or more; and (b) For which the law, in force in that part of the territory of the requested State in which the person claimed is apprehended, provides a possible penalty of death or deprivation of liberty for a period of two years or more, which would be applicable if the act were there committed.
* Reproduced with permission from 29 Am. J. Int'l L. (Supp.) 21 (1935), C The American Society of International Law.

ARTICLE 3 PLACE OF COMMISSION OF EXTRADITABLE ACTS (a) A requested State may decline to extradite a person claimed for an act committed in whole or in part within its territory. (b) A requested State may decline to extradite a person claimed for an act committed wholly outside the territory of the requesting State, unless in that part of the territory of the requested State in which the person claimed is apprehended, its law would make such act punishable under similar circumstances, though committed wholly outside the territory of the requested State. (c) For the purposes of this article public and private vessels and aircraft of a State, which have its national character, are assimilated to a State's territory; but while a private vessel is within the territorial waters of another State, or while a private aircraft is on or over the land or territorial waters of another State, acts committed upon such vessel or aircraft are also committed within the territory of the other State. ARTICLE 4 LAPSE OF TIME A requested State may decline to extradite a person claimed if under the law of the requesting State such person, at the time when the requisition is received, has become immune from prosecution or punishment by reason of the lapse of time, or if under the law prevailing in that part of the territory of the requested State in which the person is apprehended such person, at the time when the requisition is received, would have become immune from prosecution or punishment by reason of the lapse of time, if the act had been conmuitted within the territory of the requested State. ARTICLE 5 POLITICAL OFFENSES (a) A requested State may decline to extradite a person claimed if the extradition is sought for an act which constitutes a political offense, or if it appears to the requested State that the extradition is sought in order that the person claimed may be prosecuted or punished for a political offense. (b) As it is used in this Convention, the term "political offense" includes treason, sedition and espionage, whether conmitted by one or more persons; it includes any offense connected with the activities of an organized group directed against the security or governmental system of the requesting State; and it does not exclude other offenses having a political objective. ARTICLE 6 MILITARY OFFENSES (a) A requested State may decline to extradite a person claimed if the extradition is sought for an act which constitutes a military offense, or if it appears to the requested State that the extradition is sought in order that the person claimed may be prosecuted or punished for a military offense. (b) As the term is used in this Convention, a military offense is an offense which is punishable only as a violation of a military law or regulation, and
Appendix 8: Extradition
which would not be punishable as a violation of a civil law or regulation if the military law or regulation did not apply. PART III PERSONS ARTICLE 7 NATIONALS OF REQUESTED STATE A requested State shall not decline to extradite a person claimed because such person is a national of the requested State. ARTICLE 8 CONFLICTING REQUISITIONS (a) When a requested State receives from two or more States requisitions for the same person for the same act, the requested State shall, in extraditing the person claimed, give preference to that requesting State in whose territory the act was committed. If the act was committed in the territory of more than one requesting State or in the territory of a non-requesting State, the requested State shall extradite the person claimed to the requesting State whose requisition is first received. (b) When a requested State receives from two or more States requisitions for the same person for different acts, the requested State shall, in extraditing the person claimed, decide to which State it will extradite, taking account of the seriousness of each act, the place where each act was committed, the nationality of the person claimed, the times when the requisitions were received, and engagements which may be made for re-extradition by one requesting State to another. (c) For the purposes of this article public and private vessels and aircraft of a State, which have its national character, are assimilated to a State's territory; but while a private vessel is within the territorial waters of another State, or while a private aircraft is on or over the land or territorial waters of another State, acts done upon such vessel or aircraft are also done within the territory of that other State. ARTICLE 9 NON BIS IN IDEM (a) A requested State may decline to extradite a person claimed if such person has been prosecuted by the requesting State for the same act or acts for which his extradition is sought and has been acquitted; or if he has been convicted in such prosecution unless the extradition is sought in order that the person claimed may serve an unexpired term of the sentence imposed as the result of such conviction. (b) A requested State may decline to extradite a person claimed if such person has been prosecuted by the requested State or by a third State for the same act or acts for which extradition is sought and has been acquitted or convicted. ARTICLE 10 PENDING PROSECUTION FOR THE SAME ACTS A requested State may decline to extradite a person claimed if he is being prosecuted for the act or acts for which extradition is sought, or if he has been

apprehended with a view to such prosecution, either at the time of receipt of a request for provisional arrest, or (in the absence of such request) at the time of receipt of a requisition. ARTICLE 11 POSTPONED OR CONDITIONAL EXTRADITION (1) A requested State may postpone the extradition of a person claimed, (a) In order that the person claimed may be prosecuted and punished by the requested State, or, where he has already been convicted, in order that he may serve his sentence in the requested State, for an act other than that for which extradition is sought; or (b) In order that a pending civil proceeding to which the person claimed is a party in the requested State may be concluded; or (c) In order that the person claimed may testify as a witness in a judicial proceeding pending in the requested State. But extradition and proceedings based upon a requisition shall only be postponed in favor of the proceedings above referred to so far as is reasonably necessary. (2) As an alternative to such a postponement of extradition the requested State may extradite the person claimed upon condition that such person be returned to the requested State at the expense of the requesting State, as soon as the prosecution in the requesting State is terminated, for one or more of the purposes enumerated in paragraph (1) of this article. PART IV EXTRADITION PROCEDURE ARTICLE 12 THE REQUISITION AND SUPPORTING DOCUMENTS (1) The requisition shall be in writing and shall be communicated by a diplomatic or consular officer of the requesting State to the constituted authority of the requested State. (2) The requisition shall contain: (a) A description for the purpose of identification of the person claimed; (b) A statement that a warrant of arrest, or other document of equivalent import in the prosecution of the person claimed, has been issued; (c) A statement of the act or acts for which it is intended to prosecute or punish the person claimed, together with a statement of the punishment or correctional measures which may be imposed for such act or acts by the law of the requesting State, or of the sentence for such act or acts which has been imposed by the requesting State and which remains unfulfilled. (3) The requisition shall be supported by: (a) The original or an authenticated copy of the warrant of arrest or other document of equivalent import in the prosecution of the person claimed, or the original or an authenticated copy of the judgment of conviction against the person claimed, and of any sentence imposed in execution of such judgment;
(b) An authenticated copy or statement of the law of the requesting State under which it is intended to prosecute or to punish the person claimed, which shall show that such law was in force when the act was done for which extradition is requested. (4) The requisition may be accompanied or followed by a request for the delivery of property. ARTICLE 13 SUPPLEMENTARY DOCUMENTS (a) After communicating its requisition to the constituted authority of the requested State, and before a final decision on the requisition has been made, a requesting State may present supplementary documents in support of, or in amplification of, such requisition. (b) Before or after apprehension of the person claimed, the requested State may invite the requesting State to present supplementary documents in support of, or in amplification of, its requisition. ARTICLE 14 APPREHENSION AND DETENTION OF PERSON CLAIMED Upon the receipt of a requisition, the requested State shall endeavor to apprehend and detain the person claimed, unless it clearly appears to the constituted authority of the requested State, from the face of the requisition and any supporting documents submitted, that the person whose extradition is sought may not be extradited under this Convention. ARTICLE 15 REQUEST FOR PROVISIONAL ARREST (a) A State may ask for the provisional apprehension and detention of a person, if it indicates at the same time its intention promptly to request the extradition of that person. (b) A request for provisional apprehension and detention, based upon instructions and information obtained from his government by any means of communication, may be made by a diplomatic or consular officer or other authorized agent of the one State, to the government of the other State, or directly to an official of the other State who is competent to order such apprehension and detention. (c) The request for provisional apprehension and detention shall contain a description for the purpose of identification of the person whose apprehension and detention are sought, a statement of the act or acts for which it is intended to prosecute or punish such person, and the punishment or correctional measures which may be or which have been imposed for such act or acts by the law of the requesting State, and a statement of the existence of a warrant or other document constituting the first step in the prosecution of such person, or of a judgment of conviction against such person; it may also be accompanied by a further request for the provisional seizure and detention of property.

ARTICLE 16 PROVISIONAL ARREST A State which has received a request for the provisional apprehension and detention of a person, made in conformity with the provisions of Article 15, shall endeavor to apprehend such person, and if such person is apprehended it shall detain him until the receipt of a requisition, provided that a requisition is received within a reasonable time; it shall also endeavor to seize and detain the property to which the request may have referred, and which appears to fall within the categories specified in Article 24 of this Convention. ARTICLE 17 HEARING (1) After the receipt of a requisition and after the detention of the person claimed and before reaching a final determination as to the extradition of the person claimed, a requested State shall hold a judicial hearing. (2) At this hearing, a judicial authority of the requested State shall determine, upon an examination of the requisition and the documents, submitted in accordance with Articles 12 and 13 of this Convention, (a) Whether the requisition and documents submitted meet the requirements of paragraphs (2) and (3) of Article 12, and no further evidence of guilt of the person claimed shall be required; (b) Whether the law of the requesting State conforms to the condition set by paragraph (a) of Article 2 of this Convention, with respect to the penalty for the act or acts for which extradition is sought. (3) At this hearing, a judicial authority of the requested State shall determine, upon an examination of the requisition, the documents submitted by the requesting State, and the evidence offered by the requesting State, or by the requested State, or by the person detained, any issues presented as to (a) The identity of the person detained with the person claimed; (b) The place of conmmission of the alleged act or acts, for the purpose of applying Article 3 of this Convention; (c) Whether the extradition of the person claimed is sought for a political or military offense, or for the purpose of prosecuting or punishing the person claimed for a political or military offense (see Articles 5 and 6); (d) Whether the person claimed has become immune through lapse of time by the law of the requesting State, or would have become immune through lapse of time by the law of the requested State if the act had been committed there (see Article 4); (e) Whether the person claimed has been prosecuted for the same act or acts for which extradition is sought, and has been acquitted or convicted; and, in case of such conviction in the requesting State, whether he has served the sentence imposed (see Article 9); (f) Whether property shall be delivered with the person claimed (see Article 24). (4) At this hearing, a judicial authority of the requested State shall determine the law of the requested State applicable to any issue which is presented.
(5) At this hearing, if one or more of the reservations in Schedule A have been signed by the requesting State or the requested State, a judicial authority of the requested State shall determine, upon an examination of the requisition, the documents submitted by the requesting State, and the evidence offered by the requesting State, or by the requested State, or by the person detained, any of the following issues which may be presented: (a) In case Reservation Number Two has been signed by the requested State, whether the extradition of the person claimed is sought for a fiscal offense, or for the purpose of prosecuting or punishing the person claimed for a fiscal offense; (b) In case Reservation Number Three or Reservation Number Four has been signed by the requested State, whether the person claimed is a national of the requested State; (c) In case Reservation Number Five has been signed by the requested State, whether the requesting State has made out a prima facie case of guilt, as defined in that reservation; (d) In case Reservation Number Six has been signed by the requested State, whether the person claimed is a national of the requested State, and whether the requesting State has made out a prima facie case of guilt, as defined in that reservation. ARTICLE 18 EFFECT OF JUDICIAL DETERMINATION (a) As a result of a final determination by a judicial authority of the requested State of the matters set out in Article 17 of this Convention, in the manner there prescribed, such judicial authority shall declare either that the requested State is authorized, or that it is not authorized by this Convention, to extradite the person claimed, and to deliver the property asked for. (b) Such declaration that the requested State is not authorized by this Convention to extradite the person claimed shall be conclusive and the person claimed shall be set at liberty, and property seized shall be returned. (c) Upon such declaration that the requested State is authorized by this Convention to extradite the person claimed, the requested State shall extradite that person and deliver the property seized, or shall hold such person and property for executive action, as the law of the requested State may provide. ARTICLE 19 LANGUAGE TO BE USED AND TRANSLATIONS In so far as the requisition and other documents referred to in Articles 12 and 13 of this Convention and written evidence to be offered in the extradition proceedings are not in an official language of the requested State, the requesting State shall communicate to the requested State translations of the same into an official language of the requested State.

ARTICLE 20 ARRANGEMENT FOR EXTRADITION (a) A requested State shall promptly communicate to the requesting State its final decision upon the requisition. (b) After its final decision to extradite a person claimed, the requested State shall effect the extradition of such person at a time and place to be agreed upon and without unreasonable delay, and shall permit and facilitate the transportation of such person from its territory. (c) If the requesting State does not accept custody of the person claimed and remove him from the territory of the requested State within a reasonable time after opportunity therefor has been afforded by the requested State, the requested State may set such person at liberty, and may refuse to take him into custody again for the same act or acts. ARTICLE 21 REIMBURSEMENT OF REQUESTED STATE A requesting State shall reimburse the requested State for special expenses occasioned by the extradition proceedings up to the time of the surrender of the person claimed to an agent of the requesting State. ARTICLE 22 TRANSIT THROUGH TERRITORY OF THIRD STATE If a State to which extradition of a person has been granted desires to transport the extradited person through the territory of another State or on a private vessel or aircraft having the national character of another State for the purpose of bringing him to its own territory, it shall notify such other State and present an original or an authenticated copy of a decree of extradition, and the latter shall permit and facilitate such transportation. The State to which a person has been extradited shall reimburse the State through whose territory or on whose vessel or aircraft such person is transported for any expenses incurred by the latter in connection with such transportation. PART V LIMITATIONS UPON THE REQUESTING STATE ARTICLE 23 TRIAL, PUNISHMENT AND SURRENDER OF EXTRADITED PERSON (1) A State to which a person has been extradited shall not, without the consent of the State which extradited such person: (a) Prosecute or punish such person for any act committed prior to his extradition, other than that for which he was extradited; (b) Surrender such person to another State for prosecution or punishment; (c) Prosecute such person before a court specially constituted for the trial, or to which special powers are granted for the trial. (2) Paragraph (1), sub-paragraphs (a) and (b), of this article shall not apply, if the person who was extradited voluntarily remains within the territory of the State to which he was extradited for a period of thirty days, or voluntarily returns thereto.
PART VI PROPERTY ARTICLE 24 DELIVERY AND RETURN OF PROPERTY REQUESTED (1) When a person claimed is extradited, a requested State shall deliver to the requesting State the following categories of property, if requested, and if such delivery will not work an injustice to any other person, and will not interfere with the administration ofjustice by the requested State: (a) Property which appears to have been acquired by the person claimed or by an accomplice of such person by means of the act for which the extradition is made; (b) Property which may serve as evidence in the prosecution of the person extradited. (2) The requested State may make delivery of such property subject to the condition that it be returned to the requested State (a) When, the property having been delivered in accordance with paragraph (1) (a) of this article, the person claimed is not put on trial, or is acquitted, or such property is proved not to have been acquired by means of the act for which extradition is made; (b) When, the property having been delivered in accordance with paragraph (1) (b) of this article, it is no longer required for the purpose for which delivered. PART VII GENERAL PROVISIONS ARTICLE 25 RESERVATIONS IN SCHEDULE A AND DECLARATION IN SCHEDULE B A State may make one or more of the reservations set forth in Schedule A, and no others, and it may make, with or without one of the reservations, the declaration set forth in Schedule B, in addition to that contained in Article 26, and no other, at the time of its signature or ratification of this Convention, and any reservation or declaration so made shall be effective between the State making it and all other parties to this Convention in their relations infer se. ARTICLE 26 DECLARATION AS TO APPLICATION OF CONVENTION TO CERTAIN TERRITORIES (a) At the time of its signature or ratification of this Convention, a State may declare that, in accepting the present Convention, it does not assume any obligation in respect of all or any of its colonies, protectorates and overseas territories, or territories under its suzerainty or mandate, and that the present Convention shall not apply to any territories named in such declaration. (b) A State which has made such declaration, may thereafter notify the Secretary General of the League of Nations that it desires that the Convention shall apply to all or any of its territories, which have been made the subject of a

declaration under the preceding paragraph, and the Convention shall thereafter apply to all territories named in such notice. ARTICLE 27 OTHER EXTRADITION AGREEMENTS Nothing in this Convention shall affect the provisions of any agreement in force between any of the parties concerning extradition for acts for which extradition is not required by this Convention; nor shall this Convention preclude any of the parties from entering into such an agreement. ARTICLE 28 SETTLEMENT OF DISPUTES (a) If there should arise between two or more of the parties to this Convention a dispute of any kind relating to the interpretation or application of the provisions of the Convention, and if the dispute cannot be settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties providing for the settlement of international disputes. (b) In case there is no such agreement in force between the parties, the dispute shall be referred to arbitration or judicial settlement. Failing agreement by the parties upon the choice of another tribunal, the dispute shall be referred to the Permanent Court of International Justice; the court may exercise jurisdiction over the dispute, either under a special agreement between the parties, or upon an application by any party to the dispute. SCHEDULE A RESERVATION NUMBER ONE-CAPITAL PUNISHMENT A requested State may make the extradition of any person conditional upon the receipt of satisfactory assurance that, in case of conviction, neither the death penalty, nor any cruel or unusual punishment, will be imposed upon him by the requesting State. RESERVATION NUMBER TWO-FISCAL OFFENSES A requested State may decline to extradite a person claimed if the extradition is sought for an act which constitutes a fiscal offense, or if it appears to the requested State that the extradition is sought in order that the person claimed may be prosecuted or punished for a fiscal offense. For the purposes of this reservation a fiscal offense is an offense in connection with the customs or revenue law of a State, and not involving misuse of public funds. RESERVATION NUMBER THREE-NON-EXTRADITION OF NATIONALS WITH DUTY OF PROSECUTION A requested State may decline to extradite a person claimed on the ground that he is a national of the requested State, and was such national at the time when the act in question is alleged to have been done, if the act for which extradition is sought is punishable in the courts of the requested State; however, in any case in which this right to decline extradition is exercised, the requested
State shall have a duty to prosecute the person claimed for the act for which his extradition is sought. RESERVATION NUMBER FOUR-NON-EXTRADITION OF NATIONALS WITHOUT DUTY OF PROSECUTION A requested State may decline to extradite a person claimed on the ground that he is a national of the requested State, and was such national at the time when the act in question is alleged to have been done. RESERVATION NUMBER FIVE-PRIMA FACIE CASE A requested State may require that the requesting State make out a prima facie case of guilt on the part of the person claimed such as would be sufficient, in case the person claimed were accused of having committed the alleged act or acts within the territory of the requested State, to justify a magistrate of that State in ordering that he be held for trial. RESERVATION NUMBER SIX-PRIMA FACIE CASE IN EXTRADITION OF NATIONALS A requested State may require that the requesting State make out a primafacie case of guilt on the part of the person claimed, if he is a national of the requested State, such as would be sufficient, in case the person claimed were accused of having committed the alleged act or acts within the territory of the requested State, to justify a magistrate of that State in ordering that he be held for trial. RESERVATION NUMBER SEVEN-REFUSAL OF TRANSIT FOR POLITICAL AND MILITARY OFFENSES If a State to which extradition of a person has been granted desires to transport the extradited person through the territory of another State or on a private vessel or aircraft having the national character of another State, such transportation may be refused if it appears to such other State that extradition was granted for an act constituting a political offense, or that the extradition was sought and obtained in order that the person claimed might be prosecuted and punished for a political offense. SCHEDULE B DECLARATION AS TO POLITICAL AND MILITARY OFFENSES A State may declare that it will not extradite a person claimed if the extradition is sought for an act which constitutes a political or military offense, or if it appears to the requested State that extradition is sought in order that the person claimed may be prosecuted or punished for a political or military offense, and that it will not give consent to such prosecution or punishment of a person who has been extradited.
Appendix 9
DRAFT CONVENTION ON JURISDICTION WITH RESPECT TO CRIME*
ARTICLE 1 USE OF TERMS As the terms are used in this Convention: (a) A "State" is a member of the community of nations. (b) A State's 'jurisdiction" is its competence under international law to prosecute and punish for crime. (c) A "crime" is an act or omission which is made an offence by the law of the State assuming jurisdiction. (d) A State's "territory" comprises its land and territorial waters and the air above its land and territorial waters. (e) A "national" of a State is a natural person upon whom that State has conferred its nationality, or a juristic person upon whom that State has conferred its national character, in conformity with international law. (f) An "alien" is a person who is not a national of the State assuming jurisdiction. ARTICLE 2 SCOPE OF CONVENTION A State's jurisdiction with respect to crime is defined and limited by this Convention; but nothing in its provisions shall preclude any of the parties to this Convention from entering into other agreements, or from giving effect to other agreements now in force, concerning competence to prosecute and punish for crime, which affect only the parties to such other agreements. ARTICLE 3 TERRITORIAL JURISDICTION A State has jurisdiction with respect to any crime committed in whole or in part within its territory. This jurisdiction extends to (a) Any participation outside its territory in a crime committed in whole or in part within its territory; and (b) Any attempt outside its territory to commit a crime in whole or in part within its territory. ARTICLE 4 SHIPS AND AIRCRAFT A State has jurisdiction with respect to any crime committed in whole or in part upon a public or private ship or aircraft which has its national character.
* Reproduced with permission from 29 Am. J. Int'lL. (Supp) 439 (1935), 0 The
American Society of International Law.

This jurisdiction extends to (a) Any participation outside its territory in a crime conmmitted in whole or in part upon its public or private ship or aircraft; and (b) Any attempt outside its territory to commit a crime in whole or in part upon its public or private ship or aircraft. ARTICLE 5 JURISDICTION OVER NATIONALS A State has jurisdiction with respect to any crime committed outside its territory, (a) By a natural person who was a national of that State when the crime was committed or who is a national of that State when prosecuted or punished; or (b) By a corporation or other juristic person which had the national character of that State when the crime was committed. ARTICLE 6 PERSONS ASSIMILATED TO NATIONALS A State has jurisdiction with respect to any crime committed outside its territory, (a) By an alien in connection with the discharge of a public function which he was engaged to perform for that State; or (b) By an alien while engaged as one of the personnel of a ship or aircraft having the national character of that State. ARTICLE 7 PROTECTION-SECURITY OF THE STATE A State has jurisdiction with respect to any crime committed outside its territory by an alien against the security, territorial integrity or political independence of that State, provided that the act or omission which constitutes the crime was not committed in exercise of a liberty guaranteed the alien by the law of the place where it was conmmitted. ARTICLE 8 PROTECTION-COUNTERFEITING A State has jurisdiction with respect to any crime committed outside territory by an alien which consists of a falsification or counterfeiting, or uttering of falsified copies or counterfeits, of the seals, currency, instruments credit, stamps, passports, or public documents, issued by that State or under authority.
its an of its
ARTICLE 9 UNIVERSALITY-PIRACY A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law.
Appendix 9: Jurisdiction with Respect to Crime

ARTICLE 10 UNIVERSALITYOTHER CRIMES A State has jurisdiction with respect to any crime committed outside its territory by an alien, other than the crimes mentioned in Articles 6, 7, 8 and 9, as follows (a) When committed in a place not subject to its authority but subject to the authority of another State, if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed, if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of the place where the crime was committed. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of the place where the crime was committed. (b) When committed in a place not subject to the authority of any State, if the act or omission which constitutes the crime is also an offence by the law of a State of which the alien is a national, if surrender of the alien for prosecution has been offered to the State or States of which he is a national and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of a State of which the alien is a national. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of a State of which the alien is a national. (c) When committed in a place not subject to the authority of any State, if the crime was committed to the injury of the State assuming jurisdiction, or of one of its nationals, or of a corporation or juristic person having its national character. (d) When committed in a place not subject to the authority of any State and the alien is not a national of any State. ARTICLE 11 IMMUNITIES In exercising jurisdiction under this Convention, a State shall respect such immunities as are accorded by international law or international convention to other States or to institutions created by international convention. ARTICLE 12 ALIENSPROSECUTION AND PUNISHMENT In exercising jurisdiction under this Convention, no State shall prosecute an alien who has not been taken into custody by its authorities, prevent communication between an alien held for prosecution or punishment and the diplomatic or consular officers of the State of which he is a national, subject an alien held for prosecution or punishment to other than just and humane treatment, prosecute an alien otherwise than by fair trial before an impartial tribunal and without unreasonable delay, inflict upon an alien any excessive or cruel and unusual punishment, or subject an alien to unfair discrimination.

ARTICLE 13 ALIENS-NON BIS IN IDEM In exercising jurisdiction under this Convention, no State shall prosecute or punish an alien after it is proved that the alien has been prosecuted in another State for a crime requiring proof of substantially the same acts or omissions and has been acquitted on the merits, or has been convicted and has undergone the penalty imposed, or, having been convicted, has been paroled or pardoned. ARTICLE 14 ALIENS-ACTS REQUIRED BY LAW In exercising jurisdiction under this Convention, no State shall prosecute or punish an alien for an act or omission which was required of that alien by the law of the place where the alien was at the time of the act or omission. ARTICLE 15 ALIENSASSISTING ADMINISTRATION OF JUSTICE In exercising jurisdiction under this Convention, no State shall prosecute or punish an alien during his presence within its territory or a place subject to its authority at the request of officials of that State for the purpose of testifying before State tribunals or otherwise assisting in the administration of justice, except for crimes committed while present for such purpose. ARTICLE 16 APPREHENSION IN VIOLATION OF INTERNATIONAL LAW In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures. ARTICLE 17 INTERPRETATION OF CONVENTION The provisions of the present Convention shall in no case be interpreted (a) To impose upon a State an obligation to exercise the jurisdiction which it is entitled to exercise under this Convention; (b) To invalidate an exercise of jurisdiction asserted upon untenable grounds, if jurisdiction might have been assumed under this Convention on other grounds; (c) To foreclose possible objections to the maling of a particular act or omission a crime, based upon grounds falling outside the scope of this Convention. ARTICLE 18 SETTLEMENT OF DISPUTES (a) If there should arise between two or more of the parties to this Convention a dispute of any kind relating to the interpretation or application of the provisions of the Convention, and if the dispute cannot be settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties providing for the settlement of international disputes.
Appendix 9: Jurisdiction with Respect to Crime
491
(b) In case there is no such agreement in force between the parties, the dispute shall be referred to arbitration or judicial settlement. Failing agreement by the parties upon the choice of another tribunal, the dispute shall be referred to the Permanent Court of International Justice; the court may exercise jurisdiction over the dispute, either under a special agreement between the parties, or upon an application by any party to the dispute.
Appendix 10
DRAFT CONVENTION ON THE LAW

OF TREATIES*
ARTICLE 1 USE OF THE TERM "TREATY" As the term is used in this Convention: (a) A "treaty" is a formal instrument of agreement by which two or more States establish or seek to establish a relation under international law between themselves. (b) The term "treaty" does not include an agreement effected by exchange of notes. (c) The term "treaty" does not include an instrument to which a person other than a State is or may be a party. ARTICLE 2 USE OF CERTAIN OTHER TERMS As the terms are used in this Convention: (a) A "State" is a member of the community of nations. (b) A "signatory" of a treaty is a State on behalf of which the treaty has been signed. (c) A "party" to a treaty is a State which is bound by the treaty. ARTICLE 3 CAPACITY TO MAKE TREATIES Capacity to enter into treaties is possessed by all States, but the capacity of a State to enter into certain treaties may be limited. ARTICLE 4 NAME GIVEN TO A TREATY The international juridical effect of a treaty is not dependent upon the name given to the instrument. ARTICLE 5 FORM OF A TREATY (a) Although a treaty, as the term is used in this Convention, must be a formal instrument, no particular form is required. (b) In the absence of agreement upon a procedure which dispenses with the necessity for signature, a treaty must be signed on behalf of each of the States concluding it.
* Reproduced with permission from 29 Am. J. Int'lL. (Supp) 657 (1935), 0 The American Society of International Law.

ARTICLE 6 RATIFICATION (a) As the term is used in this Convention, a ratification of a treaty is an act by which the provisions of the treaty are formally confirmed and approved by a State. (b) A treaty may designate the organ of a State by which a ratification shall be executed by that State; in the absence of such a designation, a ratification may be executed by any authorized organ of the State. ARTICLE 7 WHEN RATIFICATION IS NECESSARY The ratification of a treaty by a State is a condition precedent to its coming into force so as to bind that State (a) when the treaty so stipulates; or (b) when the treaty provides for ratification by that State and does not provide for its coming into force prior to such ratification; or (c) when ratification was made a condition in the full powers of the State's representatives who negotiated or signed the treaty; or (d) when the form or nature of the treaty or the attendant circumstances do not indicate an intention to dispense with the necessity for ratification. ARTICLE 8 NO OBLIGATION TO RATIFY The signature of a treaty on behalf of a State does not create for that State an obligation to ratify the treaty. ARTICLE 9 OBLIGATION OF A SIGNATORY PRIOR TO THE COMING INTO FORCE OF A TREATY Unless otherwise provided in the treaty itself, a State on behalf of which a treaty has been signed is under no duty to perform the obligations stipulated, prior to the coming into force of the treaty with respect to that State; under some circumstances, however, good faith may require that pending the coming into force of the treaty the State shall, for a reasonable time after signature, refrain from taking action which would render performance by any party of the obligations stipulated impossible or more difficult. ARTICLE 10 DATE OF COMING INTO FORCE Unless otherwise provided in the treaty itself, (a) A treaty which is not subject to ratification shall come into force upon signature. (b) A treaty which contains provision for exchange or deposit of ratifications shall come into force upon such exchange or deposit of ratifications by all the signatories. (c) A treaty which is subject to ratification but which contains no provision for exchange or deposit of ratifications, shall come into force when it is ratified by all the signatories and when each signatory has notified its ratification to all other signatories.
Appendix 10: Law of Treaties

The provisions of this article are limited by the provisions of Article 17 of this Convention. ARTICLE 11 NON-RETROACTIVE EFFECT Unless otherwise provided in the treaty itself, a treaty which comes into force subsequently to the time of signature shall not be deemed to have effect as from the time of signature. ARTICLE 12 ACCESSION (a) As the term is used in this Convention, an accession to a treaty is an act by which the provisions of the treaty are formally accepted by a State on behalf of which the treaty has not been signed or ratified. (b) Unless otherwise provided in the treaty itself, a State may accede to a treaty only after the treaty has come into force and only with the consent of all the parties to the treaty. (c) A treaty may designate the organ of a State by which an accession shall be executed by that State; in the absence of such a designation, an accession may be executed by any authorized organ of the State. (d) An accession becomes effective only when it is deposited or communicated in accordance with any stipulation in the treaty itself providing for the deposit or communication of accessions; in the absence of such a stipulation, an accession becomes effective only when it is notified to all the parties. (e) When an accession becomes effective, the acceding State thereupon becomes a party to the treaty upon a basis of equality with other parties. ARTICLE 13 USE OF THE TERM "RESERVATION" As the term is used in this Convention, a "reservation" is a formal declaration by which a State, when signing, ratifying or acceding to a treaty, specifies as a condition of its willingness to become a party to the treaty certain terms which will limit the effect of the treaty in so far as it may apply in the relations of that State with the other State or States which may be parties to the treaty. ARTICLE 14 RESERVATIONS AT TIME OF SIGNATURE Unless otherwise provided in the treaty itself, (a) If a treaty is signed by all the signatories on the same date, a State may make a reservation when signing only with the consent of all other signatories. (b) If a treaty is open for signature until a certain date, a State may make a reservation when signing only with the consent of all other States which sign before the date fixed. (c) If a treaty is open for signature at any time in the future, a State may make a reservation when signing, if it signs before the treaty has been brought into force, only with the consent of all the States which become signatories before the treaty is brought into force; if it signs after the treaty has been brought

into force, only with the consent of all the States which have become signatories or parties prior to the time of signature by that State. (d) If a State has made a reservation when signing a treaty, its later ratification will give effect to the reservation in the relations of that State with other States which have become or may become parties to the treaty. ARTICLE 15 RESERVATIONS AT TIME OF RATIFICATION Unless otherwise provided in the treaty itself, (a) If a treaty is signed by all the signatories on the same date, a State may make a reservation when ratifying only with the consent of all other States which are signatories and of all the States which have acceded to the treaty prior to the ratification by that State. (b) If a treaty is open for signature until a certain date, a State may make a reservation when ratifying only with the consent of all other States which become signatories before the date fixed and of all the States which have acceded to the treaty prior to the ratification by that State. (c) If a treaty is open for signature at any time in the future, a State may make a reservation when ratifying, if it ratifies before the treaty has been brought into force, only with the consent of all other States which become signatories before the treaty is brought into force; if it ratifies after the treaty has been brought into force, only with the consent of all other States which have become signatories or have acceded to the treaty prior to the ratification by that State. (d) If a State has made a reservation when ratifying a treaty, the reservation has effect only in the relations of that State with other States which have become or may become parties to the treaty. ARTICLE 16 RESERVATIONS AT TIME OF ACCESSION Unless otherwise provided in the treaty itself, (a) A State may make a reservation when acceding to a treaty only with the consent of all the signatories to the treaty and of all States which have previously acceded to the treaty. (b) If a State has made a reservation when acceding to a treaty, the reservation has effect only in the relations of that State with other States which have become or may become parties to the treaty. ARTICLE 17 REGISTRATION AND PUBLICATION (a) A treaty, the registration of which is required by Article 18 of the Covenant of the League of Nations, is not binding until so registered. (b) A treaty, the registration of which is not required by Article 18 of the Covenant of the League of Nations, is not binding until it has been registered with or communicated to the Secretariat of the League of Nations, or until it has been officially published by one of the States which become parties in such manner that its contents may be known by States not parties or signatories.

(c) If such registration, communication or publication is effected within a reasonable time after the date on which the treaty would otherwise have come into force in accordance with Article 10 of this Convention, the treaty may be regarded as having been binding from that date. ARTICLE 18 TREATIES AND THIRD STATES (a) A treaty may not impose obligations upon a State which is not a party thereto. (b) If a treaty contains a stipulation which is expressly for the benefit of a State which is not a party or a signatory to the treaty, such State is entitled to claim the benefit of that stipulation so long as the stipulation remains in force between the parties to the treaty. ARTICLE 19 INTERPRETATION OF TREATIES (a) A treaty is to be interpreted in the light of the general purpose which it is intended to serve. The historical background of the treaty, travaux prparatoires, the circumstances of the parties at the time the treaty was entered into, the change in these circumstances sought to be effected, the subsequent conduct of the parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended to serve. (b) When the text of a treaty is embodied in versions in different languages, and when it is not stipulated that the version in one of the languages shall prevail, the treaty is to be interpreted with a view to giving to corresponding provisions in the different versions a common meaning which will effect the general purpose which the treaty is intended to serve. ARTICLE 20 PACTA SUNT SERVANDA A State is bound to carry out in good faith the obligations which it has assumed by a treaty (pacta sunt servanda). ARTICLE 21 TREATIES CONCLUDED BY INCOMPETENT ORGANS A State is not bound by a treaty made on its behalf by an organ or authority not competent under its law to conclude the treaty; however, a State may be responsible for an injury resulting to another State from reasonable reliance by the latter upon a representation that such organ or authority was competent to conclude the treaty. ARTICLE 22 EFFECT OF LATER TREATIES (a) A later treaty supersedes an earlier treaty between the same parties, to the extent that the provisions of the later treaty are inconsistent with the provisions of the earlier treaty.

(b) Two or more of the States parties to a treaty to which other States are parties may make a later treaty which will supersede the earlier treaty in their relations inter se, only if this is not forbidden by the provisions of the earlier treaty and if the later treaty is not so inconsistent with the general purpose of the earlier treaty as to be likely to frustrate that purpose. (c) If a State assumes by a treaty with another State an obligation which is in conflict with an obligation which it has assumed by an earlier treaty with a third State, the obligation assumed by the earlier treaty takes priority over the obligation assumed by the later treaty. ARTICLE 23 EXCUSES FOR FAILURE TO PERFORM Unless otherwise provided in the treaty itself, a State cannot justify its failure to perform its obligations under a treaty because of any provisions or omissions in its municipal law, or because of any special features of its governmental organization or its constitutional system. ARTICLE 24 EFFECT OF GOVERNMENTAL CHANGES Unless otherwise provided in the treaty itself, the obligations of a State under a treaty are not affected by any change in its governmental organization or its constitutional system. ARTICLE 25 EFFECT OF SEVERANCE OF DIPLOMATIC RELATIONS If the execution of a treaty is dependent upon the uninterrupted maintenance of diplomatic relations between the parties thereto, the operation of the treaty is suspended as between any parties upon the severance of their diplomatic relations; in the absence of agreement to the contrary, however, the operation of the treaty as between such parties will be revived by the reestablishment of their diplomatic relations. ARTICLE 26 EFFECT OF TERRITORIAL CHANGES A change in the territorial domain of a State, whether by addition or loss of territory, does not, in general, deprive the State of rights or relieve it of obligations under a treaty, unless the execution of the treaty becomes impossible as a result of the change. ARTICLE 27 VIOLATION OF TREATY OBLIGATIONS (a) If a State fails to carry out in good faith its obligations under a treaty, any other party to the treaty, acting within a reasonable time after the failure, may seek from a competent international tribunal or authority a declaration to the effect that the treaty has ceased to be binding upon it in the sense of calling for further performance with respect to such State. (b) Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may

provisionally suspend performance of its obligations under the treaty vis-a-vis the State charged with failure. (c) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. ARTICLE 28 REBUS SIC STANTIBUS (a) A treaty entered into with reference to the existence of a state of facts the continued existence of which was envisaged by the parties as a determining factor moving them to undertake the obligations stipulated, may be declared by a competent international tribunal or authority to have ceased to be binding, in the sense of calling for further performance, when that state of facts has been essentially changed. (b) Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty. (c) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. ARTICLE 29 MUTUAL ERROR (a) A treaty entered into upon an assumption as to the existence of a state of facts, the assumed existence of which was envisaged by the parties as a determining factor moving them to undertake the obligations stipulated, may be declared by a competent international tribunal or authority not to be binding on the parties, when it is discovered that the state of facts did not exist at the time the treaty was entered into. (b) Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty. (c) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. ARTICLE 30 SEPARABLE PROVISIONS Articles 25, 27, 28 and 29 of this Convention may be applied to a separate provision of a treaty if such provision is clearly independent of other provisions in the treaty. ARTICLE 31 FRAUD (a) A State which claims that it has been induced to enter into a treaty with another State by the fraud of the latter State, may seek from a competent international tribunal or authority a declaration that the treaty is void.

(b) Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty. (c) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. ARTICLE 32 DURESS (a) As the term is used in this Convention, duress involves the employment of coercion directed against the persons signing a treaty on behalf of a State or against the persons engaged in ratifying or acceding to a treaty on behalf of a State; provided that, if the coercion has been directed against a person signing a treaty on behalf of a State and if with knowledge of this fact the treaty signed has later been ratified by that State without coercion, the treaty is not to be considered as having been entered into by that State in consequence of duress. (b) A State which claims that it has entered into a treaty in consequence of duress may seek from a competent international tribunal or authority a declaration that the treaty is void. (c) Pending agreement by the parties upon and decision by a competent international tribunal or authority, a party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty. (d) A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority. ARTICLE 33 TERMINATION OF TREATIES (a) A treaty or any provision thereof may be terminated by agreement of the parties. (b) A treaty to which only two States are parties is terminated when one of the parties becomes extinct. (c) Subject to any provision concerning its renewal or continuance contained in the treaty or agreed upon by the parties, a treaty concluded for a fixed period of time is terminated by the expiration of that period. (d) The termination of a treaty puts an end to all executory obligations stipulated in the treaty; it does not affect the validity of rights acquired in consequence of the performance of obligations stipulated in the treaty. ARTICLE 34 DENUNCIATION A treaty may be denounced by a party only when such denunciation is provided for in the treaty or consented to by all other parties. A denunciation must be in accordance with any conditions laid down in the treaty or agreed upon by the parties.

ARTICLE 35 EFFECT OF WAR (a) A treaty which expressly provides that the obligations stipulated are to be performed in time of war between two or more of the parties, or which by reason of its nature and purpose was manifestly intended by the parties to be operative in time of war between two or more of them, is not terminated or suspended by the beginning of a war between two or more of the parties. (b) Unless otherwise provided in the treaty itself, a treaty which does not expressly provide that the obligations stipulated are to be performed in time of war between two or more of the parties, and which by reason of its nature and purpose was not manifestly intended by the parties to be operative in time of war between two or more of them, is suspended as between the hostile belligerents during the continuance of a war between two or more of the parties, and unless contrary provision is made at the conclusion of the war, it will again come into operation when the state of war is ended. (c) The preceding paragraphs of this Article may apply mutatis mutandis to separate parts of a treaty, if such parts are clearly independent of other parts of the treaty. ARTICLE 36 SETTLEMENT OF DISPUTES (a) If there should arise between two or more of the parties to this Convention a dispute of any kind relating to the interpretation or application of the provisions of the Convention, and if the dispute cannot be settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties providing for the settlement of international disputes. (b) In case there is no such agreement in force between the parties, the dispute shall be referred to arbitration or judicial settlement. Failing agreement by the parties upon the choice of another tribunal, the dispute shall be referred to the Permanent Court of International Justice; the court may exercise jurisdiction over the dispute, either under a special agreement between the parties, or upon an application by any party to the dispute.
Appendix 11
DRAFT CONVENTION ON JUDICIAL

ASSISTANCE*
PART I USE OF TERMS ARTICLE 1 As the terms are used in this Convention: (a) A "State" is a member of the community of nations. (b) A "person" is a natural or a juristic person. (c) The "language" of a State is any official language of that State. (d) A "tribunal of a State" is a judicial authority, or an administrative authority while engaged in the exercise of judicial or quasi-judicial functions, created by the State or by a political subdivision thereof. (e) An "international tribunal" is a tribunal created by the agreement of two or more States for the adjudication or settlement of a controversy between States. (f) A "civil proceeding" is any contentious or non-contentious proceeding before a tribunal of a State, not directed to the investigation of crime or to conviction or punishment for crime. (g) A "criminal proceeding" is any proceeding before a tribunal of a State, directed to the investigation of crime or to conviction or punishment for crime. (h) An "international proceeding" is any proceeding before an international tribunal. (i) "Evidence" includes oral and written statements of fact or opinion, books, papers, records, samples, objects, and generally any form of probative material. PART II CIVIL PROCEEDINGSSERVICE OF DOCUMENTS ARTICLE 2 SECTION 1 When for the purpose of a civil proceeding a tribunal of a State (State of origin) requires service of a document on a person in the territory of another State (State of execution), a request for the service of the document may be addressed by the tribunal to a particular tribunal or generally "to any competent tribunal" of the State of execution. SECTION 2 The request shall be accompanied by the document to be served, and shall contain a statement of: (a) The title and address of the tribunal making the request;
Reproduced with permission from 33 Am. J. Int'l L. (Supp.) 15 (1939), C The American Society of International Law.

(b) The nature of the proceeding in which the service is required, and the names and descriptions of the parties to the proceeding; (c) The nature of the document to be served; and (d) The name, description and address of the person upon whom the document is to be served. The request may contain also any other information deemed useful in regard to the proceeding, as well as suggestions as to the time, place, and manner of service, and as to the form of proof of service. SECTION 3 If the request and the accompanying document to be served are not drawn in the language of the State of execution, a translation into that language must be transmitted with the request. SECTION 4 The request may be transmitted by the tribunal making it or by a diplomatic or consular officer of the State of origin, to the authority designated to receive such requests by the State of execution, or to a particular tribunal or to the ministry of justice of the State of execution; or the request may be transmitted by the government of the State of origin to the government of the State of execution through the diplomatic channel. SECTION 5 If a tribunal to which a request is addressed is unable to execute it, that tribunal on receipt of the request shall forward it to a tribunal competent and able to execute it, with the same force and effect as though it had been originally addressed to the latter tribunal. SECTION 6 A request duly made in accordance with the provisions of this Convention shall be executed unless (a) The service requested is -intended to confer on the tribunal making the request jurisdiction over a person who by the law of the State of execution cannot be subjected to such jurisdiction; or (b) Execution is impossible on account of absence of the person upon whom service is requested, or on account of inability to locate such person, or for any similar reason; or (c) The government of the State of execution considers that execution of the request would be contrary to the public interest. If a request is not executed, the tribunal from which the request emanated shall be promptly informed of the reason for failure to execute it. SECTION 7 In the execution of a request service shall be effected as nearly as practicable in the manner prescribed by the law of the State of execution for analogous documents of local origin; provided that a suggestion of a particular manner of service shall be followed in so far as it is not forbidden by the law of the State of execution. SECTION 8 A tribunal which executes a request shall send to the tribunal from which the request emanated, a certificate of the fact, the date and the manner of the service effected, following as nearly as possible any form suggested in the request. SECTION 9 The execution of a request for the service of a document may be postponed pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred, including the expense of effecting service in a
Appendix 11: Judicial Assistance

special manner; but such expense shall not exceed the amount payable under the law of the State of execution in connection-with an analogous domestic proceeding in that State. ARTICLE 3 When for the purpose of a civil proceeding a tribunal of a State (State of origin) requires service of a document on a person in the territory of another State, such service may be effected, without any intervention by the authorities of the other State, either (a) By a diplomatic or consular officer of the State of origin, where the person to be served is a national of the State of origin; or (b) By an agent appointed by the tribunal which requires the service; or (c) By an agent appointed by a party to the proceeding before the tribunal which requires the service. PART III CIVIL PROCEEDINGSOBTAINING EVIDENCE ABROAD ARTICLE 4 SECTION 1 When for the purpose of a civil proceeding a tribunal of a State (State of origin) requires that evidence be obtained in the territory of another State (State of execution), a letter rogatory may be addressed by the tribunal to a particular tribunal or generally "to any-competent tribunal" of the State of execution. SECTION 2 The letter rogatory shall contain a statement of (a) The title and address of the tribunal issuing the letter rogatory; (b) The nature of the proceeding for which evidence is required and the names and descriptions of the parties to the proceeding, and any other information deemed useful in regard to the proceeding; (c) The request for the procuring of the evidence required; and (d) The name, description and address, so far as known, of any person from whom evidence is required. SECTION 3 The letter rogatory may be accompanied by a list of interrogatories to be put to witnesses; and it may request the oral examination of witnesses, to be conducted either by the parties to the proceeding or by the tribunal, and the recording of the testimony. SECTION 4 The letter rogatory may be accompanied by a description of any documents, books, papers, records, samples, objects, or premises, the production, identification or examination of which is requested. SECTION 5 If the letter rogatory and accompanying papers are -not drawn in the language of the State of execution, a translation into that language must be transmitted with the letter rogatory. SECTION 6 The letter rogatory may be transmitted by the tribunal issuing it or by a diplomatic or consular officer of the State of origin, to the authority designated to receive such letters by the State of execution, or a particular

tribunal or the ministry of justice of the State of execution; or the letter rogatory may be transmitted by the government of the State of origin to the government of the State of execution through the diplomatic channel. SECTION 7 If a tribunal to which a letter rogatory is addressed is unable to execute it, that tribunal on receipt of the letter rogatory shall forward it to a tribunal competent and able to execute it, with the same force and effect as though it had originally been addressed to the latter tribunal. SECTION 8 A letter rogatory duly issued in accordance with the provisions of this Convention shall be executed unless (a) Execution is impossible on account of absence of the person whose evidence is required, or on account of inability to locate such person, or for any similar reason; or (b) The government of the State of execution considers that execution of the request would be contrary to the public interest. If a letter rogatory is not executed, the tribunal from which the letter rogatory emanated shall be promptly informed of the reason for failure to execute it. SECTION 9 Execution of a letter rogatory may be refused in so far as the evidence sought would be patently irrelevant to the proceeding in the State of origin, or in so far as the taking of the evidence sought would violate a privilege accorded by the law of the State of execution. SECTION 10 In the execution of a letter rogatory the same procedure and the same compulsive measures shall be employed as may be employed for the taking of evidence in a domestic proceeding; provided that if the employment of a particular procedure has been requested, it shall be employed in so far as it is not forbidden by the law of the State of execution. SECTION 11 In the execution of a letter rogatory a tribunal shall if so requested give reasonable notice of the time and place of its intended taking of evidence, to any person designated to this end by the tribunal issuing the letter rogatory, and to any diplomatic or consular officer through whom the letter rogatory was transmitted; it shall permit the parties to the proceeding in the State of origin, or their representatives, to be present when the evidence is taken. SECTION 12 A tribunal which executes a letter rogatory shall send to the tribunal from which the letter rogatory emanated a certificate of the fact, the date and the manner of the execution, following as nearly as possible any form suggested in the letter rogatory, together with the evidence procured and a record of any testimony taken. SECTION 13 The execution of a letter rogatory may be postponed pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred, including the expense of obtaining evidence in a special manner; but such expense shall not exceed the amount payable under the law of the State of execution in connection with an analogous domestic proceeding in that State. ARTICLE 5 SECTION 1 When for the purpose of a civil proceeding a tribunal of a State (the State of origin) requires that evidence be obtained in the territory of another

State (the State of execution), it may appoint one or more commissioners to obtain such evidence, either by taking the testimony of witnesses or by securing the production, identification or examination of documents, books, papers, records, samples, objects or premises. A diplomatic or consular officer of the State of origin may be appointed as such a commissioner. SECTION 2 A commissioner shall be permitted by the State of execution to invite the attendance of witnesses, to administer oaths to witnesses, to examine witnesses in accordance with any procedure prescribed by the appointing tribunal, to record the testimony taken and transmit the record to the appointing tribunal, and to obtain and transmit to the appointing tribunal any kind of evidence not forbidden by the law of the State of execution. SECTION 3 A commissioner may not exercise any compulsion for securing the attendance of witnesses or the giving of testimony or the production of any evidence; but he may petition a competent tribunal of the State of execution to compel the attendance of witnesses, the giving of testimony and the production of evidence. SECTION 4 In petitioning for compulsive measures, the commissioner shall set forth his appointment as commissioner, the names and addresses of the persons against whom compulsion is sought, the nature of the proceeding in aid of which evidence is sought, the nature of the evidence sought, and the particular compulsive measures desired. SECTION 5 A petition for compulsive measures duly made in accordance with the provisions of this Convention shall be granted, unless (a) The granting of the petition is impossible on account of absence of the person whose evidence is required, or on account of inability to locate such person, or for any similar reason; or (b) The government of the State of execution considers that the granting of the petition would be contrary to the public interest. SECTION 6 The tribunal petitioned shall aid the commissioner by ordering such compulsive measures as are provided by the law of the State of execution for compelling the attendance of witnesses, the giving of testimony and the production of evidence in analogous domestic cases. SECTION 7 The granting of compulsive measures may be refused in so far as the evidence sought would be patently irrelevant to the proceeding in the State of origin, or in so far as the taking of the evidence sought would violate a privilege accorded by the law of the State of execution. SECTION 8 The granting of compulsive measures may be postponed pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred; but such expense shall not exceed the amount payable under the law of the State of execution in connection with an analogous domestic proceeding in that State.

PART IV CRIMINAL PROCEEDINGSSERVICE OF DOCUMENTS ARTICLE 6 SECTION I When for the purpose of a criminal proceeding a tribunal of a State requires a document to be served on a person in the territory of another State, the service may be effected by the method provided for in Article 2 of this Convention. SECTION 2 The execution of a request may be refused, however, (a) If the person sought to be served is the person accused of crime in the proceeding in the State of origin, or (b) If the proceeding in the State of origin deals with a political offense. ARTICLE 7 When in accordance with the provisions of Article 6 a summons to appear as a witness in the territory of the State of origin has been served on a person in the territory of the State of execution, and where such person has responded to the summons, he shall not be subject, while in the territory of the State of origin, to arrest or the service of civil or criminal process in connection with matters which arose prior to his arrival in the State of origin in response to the summons. This provision shall not apply, however, if such person voluntarily remains in the territory of the State of origin for a period of thirty days after having given his evidence. PART V CRIMINAL PROCEEDINGSOBTAINING EVIDENCE ABROAD ARTICLE 8 SECTION 1 When for the purpose of a criminal proceeding a tribunal of a State requires that evidence be obtained in the territory of another State, such evidence may be obtained in any one or more of the methods provided for in Articles 4 and S of this Convention. SECTION 2 The execution of a letter rogatory, or of a petition for compulsive measures made by a commissioner appointed under Article 5, may be refused, however, (a) If evidence is sought from a person who is the person accused of crime in the proceeding in the State of origin; or (b) If the proceeding in the State of origin deals with a political offense. SECTION 3 If requested by the tribunal in the State of origin, the State of execution shall deliver to the requesting tribunal any property in the possession of its authorities which may serve as evidence in the criminal proceeding in the State of origin, provided that such delivery will not work an injustice to any person and will not interfere with the administration of justice in the State of execution. The State of origin shall return such property to the State of execution when it is no longer required for the purpose for which it was delivered.

ARTICLE 9 A State shall, upon the request of another State, supply to the latter copies of records of conviction, photographs, fingerprints and descriptions of any person convicted of crime, which may be in the possession of its authorities. Compliance with such a request may not be refused unless the government of the requested State considers that compliance would be contrary to the public interest. PART VI INTERNATIONAL PROCEEDINGS ARTICLE 10 SECTION 1 When for the purpose of an international proceeding an international tribunal requires service of a document on a person in the territory of any State (State of execution), whether or not such State is a party to the international proceeding or to the agreement creating the international tribunal, a request for the service of the document may be addressed by the international tribunal to a particular tribunal or generally "to any competent tribunal" of the State of execution. SECTION 2 The request shall be accompanied by the document to be served and shall contain a statement of* (a) The title and address of the international tribunal making the request; (b) The nature of the international proceeding in which the service is required, and the names of the parties to the proceeding; (c) The nature of the document to be served; and (d) The name, description and address of the person upon whom the document is to be served. The request may contain also any other information deemed necessary in regard to the proceeding, as well as suggestions as to the time, place and manner of service, and as to the form of proof of service. SECTION 3 If the request and the accompanying document are not drawn in the language of the State of execution, a translation into that language must be transmitted with the request. SECTION 4 The request shall be transmitted by the international tribunal making it to the ministry of foreign affairs or to any authority designated to receive such requests by the State of execution. SECTION 5 A request duly made in accordance with the provisions of this Convention shall be executed unless (a) Execution is impossible on account of absence of the person upon whom service is requested, or on account of inability to locate such person, or for any similar reason; or (b) The government of the State of execution, that State not being a party to the international proceeding, considers that the execution of the request would be contrary to the public interest. If a request is not executed, the international tribunal from which the request emanated shall be promptly informed of the reason for failure to execute it.

SECTION 6 In the execution of a request service shall be effected as nearly as practicable in the manner prescribed by the law of the State of execution for analogous documents of local origin; provided that a suggestion of a particular manner of service shall be followed in so far as it is not forbidden by the law of the State of execution. SECTION 7 A tribunal which executes a request shall send to the international tribunal from which the request emanated, a certificate of the fact, the date and the manner of the service effected, following as nearly as possible any form suggested in the request. SECTION 8 The execution of a request for the service of a document may be postponed pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred, including the expense of effecting service in a special manner; but such expense shall not exceed the amount payable under the law of the State of execution in connection with an analogous domestic proceeding in that State. ARTICLE 11 SECTION I When for the purpose of an international proceeding an international tribunal requires that evidence be obtained in the territory of any State (State of execution), whether or not such State is a party to the international proceeding or to the agreement creating the international tribunal, a letter rogatory may be addressed by the international tribunal to a particular tribunal or generally "to any competent tribunal" of the State of execution. SECTION 2 The letter rogatory shall contain a statement of (a) The title and address of the international tribunal issuing the letter rogatory; (b) The nature of the international proceeding for which evidence is required and the names of the parties to the proceeding, and any other information deemed useful in regard to the proceeding; (c) The request for the procuring of the evidence required; and (d) The name, description and address, so far as known, of any person from whom evidence is required. SECTION 3 The letter rogatory may be accompanied by a list of interrogatories to be put to witnesses; and it may request the oral examination of witnesses, to be conducted either by the parties to the proceeding or by the tribunal, and the recording of the testimony. SECTION 4 The letter rogatory may be accompanied by a description of any documents, books, papers, records, samples, objects or premises, the production, identification or examination of which is requested. SECTION 5 If the letter rogatory and accompanying papers are not drawn in the language of the State of execution, a translation into that language must be transmitted with the letter rogatory. SECTION 6 The letter rogatory shall be transmitted by the international tribunal issuing it to the ministry of foreign affairs or to any authority designated to receive such letters by the State of execution.

SECTION 7 A letter rogatory duly issued in accordance with the provisions of this article shall be executed unless (a) Execution is impossible on account of absence of the person whose evidence is required, or on account of inability to locate such person, or for any similar reason; or (b) The government of the State of execution, that State not being a party to the international proceeding, considers that the execution of the request would be contrary to the public interest. If a letter rogatory is not executed, the international tribunal from which the letter rogatory emanated shall be promptly informed of the reason for failure to execute it. SECTION 8 Execution of a letter rogatory may be refused in so far as the evidence sought would be patently irrelevant to the international proceeding, or in so far as the taking of the evidence would violate a privilege accorded by the law of the State of execution. SECTION 9 In the execution of a letter rogatory the same procedure and the same compulsive measures shall be employed as may be employed for the taking of evidence in a domestic proceeding; provided that if the employment of a particular procedure has been requested, it shall be employed in so far as it is not forbidden by the law of the State of execution. SECTION 10 In the execution of a letter rogatory a tribunal shall if so requested give reasonable notice of the time and place of its intended taking of evidence, to any person designated to this end by the international tribunal; it shall permit representatives of the parties to the international proceeding to be. present when the evidence is taken. SECTION 11 A tribunal which executes a letter rogatory shall send to the international tribunal from which the letter rogatory emanated, a certificate of the fact, the date and the manner of the execution, following as nearly as possible any form suggested in the letter rogatory, together with the evidence procured and a record of any testimony taken. SECTION 12 The execution of a letter rogatory may be postponed pending the receipt of a satisfactory guarantee of reimbursement of the expense to be incurred, including the expense of obtaining evidence in a special manner; but such expense shall not exceed the amount payable under the law of :the State of execution in connection with an analogous domestic proceeding in that State. PART VII INFORMATION ON LAW OF OTHER STATES ARTICLE 12 SECTION 1 When for the purpose of any proceeding a tribunal of a State requires information on any question concerning the law of another State, a request for such information may be addressed by the tribunal to the government of the other State. SECTION 2 The request for information shall contain a statement of (a) The title and address of the tribunal regarding the information;

(b) The nature of the proceeding for which the information is required, the names and descriptions of the parties to the proceeding, and such information in regard to the proceeding as will enable a proper reply to be given; and (c) The question upon which information is required. SECTION 3 The request for information shall be transmitted through the diplomatic channel. SECTION 4 Upon receipt of a request for information a government shall promptly send a reply through the diplomatic channel, either (a) Transmitting a response containing the information requested, prepared by its own law officers, or by one of its tribunals, or by an expert of its own selection, the source of the response being stated; or (b) Refusing to supply the information requested. PART VIII GENERAL PROVISIONS ARTICLE 13 Nothing in this Convention shall be construed to prevent the service of a document or the obtaining of evidence or of information on law in the territory of another State by any method provided for by the law of the State of origin and not forbidden by the law of the other State, or by any method provided for in any agreement between the States concerned. ARTICLE 14 Nothing in this Convention shall be construed to determine the legal validity or effect of the service of as document in accordance with the provisions of this Convention, or the disposition to be made of or value to be attached to evidence or to information on law obtained in accordance with the provisions of this Convention.
Appendix 12
DRAFT CONVENTION ON RIGHTS AND DUTIES OF NEUTRAL STATES IN NAVAL AND AERIAL WAR*
[The considerationsof the Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, revealed fundamental differences of opinion regarding the general organization of the draft, its underlying theories, and a number of the specific rules and principles set forth therein. The Research nevertheless presents it, without any implication that the Draft as published reflects even a consensus of the members of the Advisory Committee, hoping that its debates upon the problem may be continued among scholars throughout 1 the world with a view to the further clarificationof the subject.] PART I GENERAL SECTION 1 USE OF TERMS ARTICLE 1 As the terms are used in this Convention: (a) A "State" is a member of the community of nations. (b) A "belligerent" is a State or a politically organized group at war with a State or with a politically organized group. (c) A "neutral State" is a State which during the existence of a war is not a belligerent in that war. (d) "Port" includes harbors and roadsteads. (e) A "blockade zone" is that area of water extending fifty miles from a blockaded coast, proclaimed by a belligerent to be such a zone.
* Reproduced with permission from 33 Am. J. Int'lL. (Supp.) 175 (1939), The American Society of International Law. See also the Director's General Introduction ... where it is pointed out: "The proposals contained in the Drafts, and the statements in the Comments, are not to be taken to represent the individuals views of any of the persons who have taken part in their preparation. "The Research is wholly unofficial, and the Drafts must not be taken as in any way representing the views of the Government of the United States."

(f) The "territory" of a State or of a belligerent comprises its land and territorial waters and the airspace above them. (g) "Arms, ammunition and implements of war" are those articles listed in Annex I to this Convention. (h) A "mile" is one sixtieth of a degree of latitude at the equator. (i) A "neutral vessel" is a merchant vessel entitled to fly the flag of a neutral State. () "Aircraft" includes all craft capable of flight whether lighter or heavier than air. (k) A "military aircraft" is an aircraft used for military purposes. (1) A "private aircraft" is an aircraft which is not a military aircraft or a public aircraft used exclusively in governmental service such as posts, customs or police; the term includes an aircraft used in the carriage of goods or passengers for hire, although the aircraft is owned and operated by a State. (m) A "neutral aircraft" is an aircraft having the nationality of a neutral State. ARTICLE 2 For the purposes of Articles 19, and 32 to 39 inclusive, of this Convention, belligerent merchant vessels, whether surface or submarine, shall, if armed for defense or offense, be assimilated to warships. ARTICLE 3 An aircraft while on board a belligerent warship, including an aircraftcarrier, shall be regarded as part of such warship. SECTION 2 GENERAL RIGHTS AND DUTIES OF NEUTRAL STATES ARTICLE 4 A neutral State, in the exercise of its neutral rights and in the performance of its neutral duties, shall be impartial and shall refrain from discrimination between belligerents. ARTICLE 5 A neutral State shall abstain from supplying to a belligerent assistance for the prosecution of the war. ARTICLE 6 A neutral State shall use the means at its disposal to prevent within its territory the conmmission of any act the toleration of which would constitute a nonfulfillment of its neutral duty; the use of force for this purpose shall not be regarded as an unfriendly act.
Appendix 12: Rights and Duties of Neutral States

ARTICLE 7 A neutral State shall use the means at its disposal: (a) to prevent the fitting out or arming within its territory of any vessel which is intended to cruise or to engage in hostile operations against a belligerent; (b) to prevent the departure from its territory of any vessel which is intended to cruise or to engage in hostile operations against a belligerent, or which is intended to perform services of a military character for a belligerent, and which, within its territory and during the war has been adapted entirely or partly for use in war. ARTICLE 8 A neutral State shall use the means at its disposal to prevent the commission within its territory by a belligerent of any act of hostility, including visit, search or capture. ARTICLE 9 (1) A neutral State shall use the means at its disposal to prevent: (a) the erection or operation of any radio station within its jurisdiction by a belligerent; and (b) the transmission from its jurisdiction of military information destined for a belligerent by radio or by mechanical means of communication. (2) A neutral State is not bound to use the means at its disposal to prevent the transmission from its territory of military information destined for a belligerent by means of postal communication, telecommunications other than radio, messengers or other means of communication not provided for in section (1) of this article. ARTICLE 10 A neutral State shall use the means at its disposal to prevent within its territory aerial observation of the movements, operations or defenses of a belligerent, made for the purpose of serving a belligerent. ARTICLE 11 Subject to the provisions of Article 4, a neutral State may, for the purpose of conserving its own supplies or of safeguarding its neutrality: (a) place prohibitions upon the shipment or departure from or transit through its territory of arms, ammunition and implements of war; (b) place prohibitions upon the shipment or departure from or transit through its territory of articles or materials other than arms, ammunition or implements of war; (c) place prohibitions upon the granting of loans or credits by persons subject to its jurisdiction.

ARTICLE 12 A neutral State may, except as otherwise provided in this Convention, regulate the voyages and cargoes of its public and private vessels. ARTICLE 13 A neutral State, for the purpose of better safeguarding its rights and interests as a neutral or of better fulfilling its duties as a neutral, may, during the course of a war, adopt new measures or alter the measures which it has previously adopted, provided, however, that the new measures adopted do not violate any provision of this Convention. ARTICLE 14 A neutral State shall not be deemed to have violated Article 4 of this Convention by resorting to acts of reprisal or retaliation against a belligerent because of illegal acts of the latter. SECTION 3 GENERAL RIGHTS AND DUTIES OF BELLIGERENTS ARTICLE 15 A belligerent shall not commit within neutral territory any act the toleration of which by a neutral State would constitute a nonfulfillment of its neutral duty. ARTICLE 16 A belligerent shall not use the territory of a neutral State as a base of operations. This prohibition includes the acts described in Article 9 (1). ARTICLE 17 A belligerent shall not set up a prize court within the territory or jurisdiction of a neutral State. ARTICLE 18 A belligerent shall not engage in hostile operations on, under or over the high seas so near to the territory of a neutral State as to endanger life or property therein. ARTICLE 19 A belligerent shall not permit its warships or military aircraft to hover off the coasts of a neutral State in such manner as to harass the commerce or industry of that State.
Appendix 12: Rights and Duties of Neutral States ARTICLE 20
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(1) A belligerent shall forbid its merchant vessels to display the flag of a neutral State, or otherwise to represent themselves to be neutral vessels. (2) If a belligerent authorizes or permits its merchant vessels to display the flag of a neutral State or otherwise to represent themselves to be neutral vessels, any neutral State may forbid to all the merchant vessels of that belligerent access to its territory during the war. (3) If a merchant vessel of a belligerent without authorization or permission displays the flag of a neutral State or otherwise represents itself to be a neutral vessel, any neutral State may forbid to that vessel access to its territory during the war.
ARTICLE 21
A belligerent may, within its territory or within territory held in military occupation, in case of urgent necessity, requisition a neutral vessel privately owned and operated, or cargo owned by nationals of a neutral State, if the vessel or the cargo was brought into such territory voluntarily and not as the result of compulsion or pressure exercised by the belligerent or by an allied belligerent; provided that this privilege may be exercised by a belligerent only if it pays the fair market value, under prevailing conditions, of the vessel or cargo requisitioned.
ARTICLE 22
A belligerent has no duty to pay compensation for damage to a neutral vessel or other neutral property or persons, when such damage is incidental to a belligerent's act of war against the armed forces of its enemy and not in violation of the provisions of this Convention or of the law of war.
ARTICLE 23
A belligerent is not relieved of its duty to respect the rights of a neutral State as provided in this Convention, even when engaged in acts of reprisal or retaliation for illegal acts of its enemy.
ARTICLE 24
A belligerent may not resort to acts of reprisal or retaliation against a neutral State except for illegal acts of the latter, and a State is not to be charged with failure to perform its duties as a neutral State because it has not succeeded in inducing a belligerent to respect its rights as a neutral State.

PART I RULES FOR SURFACE AND SUBMARINE VESSELS SECTION 4 BELLIGERENT WARSHIPS IN NEUTRAL WATERS ARTICLE 25 A neutral State has no duty to prevent the passage of a belligerent warship through its territorial waters. ARTICLE 26 A neutral State may exclude from its territory belligerent warships other than (a) warships entering in distress; and (b) warships employed exclusively in scientific or humanitarian missions. ARTICLE 27 A neutral State may exclude belligerent submarine vessels from its territory, or admit such vessels on condition that they conform to such regulations as may be prescribed. ARTICLE 28 A neutral State shall either exclude belligerent armed merchant vessels from its territory or admit such vessels on the same conditions on which it admits belligerent warships. ARTICLE 29 A neutral State shall either exclude prizes from its territory or admit them on the same conditions on which it admits belligerent warships. ARTICLE 30 (1) A neutral State shall not apply the exclusions permitted by Articles 27, 28, and 29 to vessels entering in distress. (2) A neutral State may intern any vessel violating its rules adopted in accordance with Article 26, 27 or 28. The officers and crew of an interned vessel shall be interned. (3) A neutral State shall release a prize violating its rules adopted in accordance with Article 29, setting at liberty the vessel's own crew and interning the prize crew. ARTICLE 31 A neutral State shall use the means at its disposal to prevent a belligerent warship under construction in its territory at the time of the outbreak of war from departing during the war.
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A belligerent shall require its warship in the waters of a neutral State at the time of the outbreak of war, to depart therefrom within twenty-four hours, or upon the termination of such longer period as may be necessary to complete repairs essential to the seaworthiness of the vessel.
ARTICLE 33
Subject to Articles 34, 35, and 38, a neutral State shall require a belligerent warship which enters its port after the outbreak of war to depart within twentyfour hours.
ARTICLE 34
A neutral State which admits a belligerent warship in distress shall permit such warship to remain only for the time necessary for remedying the condition of distress under which it entered; but a condition of distress which is the result of enemy action may not be remedied and if the vessel is unable to leave it shall be interned.
ARTICLE 35
A neutral State which admits a belligerent warship employed exclusively in a scientific or humanitarian mission may permit such warship to prolong its stay and may permit it to take on the provisions and fuel necessary for the fulfillment of its mission.
ARTICLE 36
A neutral State which admits to its territory a belligerent warship not exclusively engaged in a scientific or humanitarian mission, shall not allow such warship to take on more provisions than are necessary to enable it to reach the nearest port of that belligerent, or, if it be nearer, of an allied belligerent. The neutral State shall not allow such warship to take on any supply of fuel or otherwise to augment its fighting strength.
ARTICLE 37
In the absence of a special provision of the law of the neutral State, a belligerent shall not permit more than three of its warships to be in a port of the neutral State at the same time.
ARTICLE 38
A neutral State shall prescribe the following rules governing the departure from its territory of belligerent warships which it has admitted: (a) When warships of opposing belligerents are present simultaneously in a neutral port, a period of not less than twenty-four hours must elapse between the departure of the ship of one belligerent and the departure of the ship of the other.

(b) The order of departure is determined by the order of arrival unless the ship which arrived first is so circumstanced that an extension of its stay is permissible. (c) A belligerent warship may not leave a neutral port until twenty-four hours after the departure of a merchant vessel flying the flag of its enemy. ARTICLE 39 The neutral State shall determine the period for remaining, the repairs which may be made, the provisions which may be taken on board, and the order of departure in cases arising under Articles 32, 33, 34, 35, 36, and 38. If a belligerent warship fails to comply with the decision of the neutral State, it may be ordered to depart and if it fails to do so it shall be interned with its officers and crew. SECTION 5 NEUTRAL TRADE TRADE BETWEEN NEUTRALS ARTICLE 40 Except as otherwise provided in this Convention, a belligerent may not interrupt trade in neutral vessels between two neutral ports. (B) CERTIFICATES OF NEUTRALITY ARTICLE 41 A neutral State may issue certificates of neutrality in accordance with the rules laid down in Annex II to this Convention. ARTICLE 42 (1) Prior to the clearance of a vessel with a certificate of neutrality from its territory, a neutral State shall give a public notice of departure containing (a) The name of the vessel, its tonnage, time of departure, approximate route, destination, probable time of arrival thereat and general description of the ship and its cargo; (b) If the vessel is convoyed, an adequate identification of the convoying warship or warships. (2) If the announced departure of the vessel is delayed, or if other announced details are altered, a corrected notice shall be issued. (3) A certified copy of the notice shall be given to the master of each vessel named therein. (4) A neutral State may also give publicity by radio to notices of departure. Upon the request of a belligerent, a neutral State shall use the radio facilities at its disposal to bring to the knowledge of belligerent warships or aircraft at sea notices of departure, but such messages may not be sent in code.
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A neutral State may convoy by its warships its own merchant vessels or those of any other neutral State; provided that all the vessels so convoyed have certificates of neutrality issued or countersigned by the convoying State; and provided further that no vessel shall be permitted to join the convoyed vessels after they leave port.
ARTICLE 44
A neutral State shall require vessels to which it issues certificates of neutrality, and its warships while engaged in convoying certified vessels, to observe the following rules: (a) All such vessels and warships shall be painted white, and shall have painted prominently on both sides of the ship's hull and superstructure amidships, their national colors in vertical stripes not less than one meter wide. Similar stripes shall be painted horizontally on the decks or superstructure in a manner readily distinguishable by aircraft. (b) All such vessels and warships while at sea shall continuously display their flags and the usual running lights, and shall be equipped with searchlights or floodlights casting special illumination upon the flag and upon the vertically and horizontally painted stripes.
ARTICLE 45
A neutral State shall use the means at its disposal to prevent uncertified vessels from departing from its territory with any simulation of the distinctive markings required of certified merchant vessels.
ARTICLE 46
(1) If an uncertified neutral vessel adopts the distinctive markings of a certified vessel, or if a certified neutral vessel violates the privileges of a certificate by taking on board, subsequent to certification, any goods or persons except in the case of salvage at sea, or by going voluntarily to a destination other than that specified in the certificate, the neutral State whose flag the vessel is entitled to fly shall: (a) If the vessel is within its territory, provide that the vessel be sequestered for the duration of the war or forfeited to the State; (b) If the vessel is not within its territory, cancel the registration thereof and immediately give notice of the fact to the belligerents and to other neutral States. If the vessel subsequently comes within its territory, the neutral State shall proceed under paragraph (a) of this article. If such vessel is not forfeited under paragraph (a), it may not subsequently, during the war, be granted registration or a certificate of neutrality by the same or by any other neutral State. (2) If the flag State does not take the action required by paragraph (a) or (b) of this article, any other neutral State may decline to admit that vessel to its

territory during the war, or, if it enters, may sequester it for the duration of the war. (C) QUOTAS ARTICLE 47 (1) A quota limitation is required for imports into a neutral State if demanded by a belligerent in accordance with the provisions of this article. (2) A belligerent may demand that a neutral State publish monthly data as to its imports, their amount, value, disposition or ultimate utilization, and data as to its exports, their amount, value and destination, if there are being imported into the neutral State goods which (a) are publicly listed by any of the belligerents as of use in war; and (b) are of a kind which the enemy of the demanding belligerent imports directly or indirectly; and (c) are either imported into the neutral State for export in their original or in a processed state, or imported in amounts exceeding normal peace time imports, taking into account normal expansion not due to supplying war demands in belligerent markets. (3) A neutral State shall at once proceed with the publication as demanded. (4) However, if the neutral State does not agree that factual conditions exist justifying the demand, it shall so notify the demanding belligerent. At the same time it shall designate one of its nationals who, with a person designated by the belligerent, shall choose a national of a third State; and these three persons shall constitute an arbitral board to determine whether the factual conditions exist justifying the demand. If a majority of the board decides that the belligerent has made out a prima facie case under paragraphs (a), (b), and (c) of section (2) of this article, the neutral State shall continue the publication as demanded; if a majority of the board decides that the belligerent has not made out such a prima facie case, the neutral State may cease publication. (5) If the belligerent is not satisfied by the neutral State's published statements that goods imported by the neutral State are not reaching its enemy in their original or in a processed state, it may notify all neutral States that it demands the fixing of a quota in accordance with Annex III to this Convention. (6) The publication of data as required under section (2) of this article may be dispensed with if the neutral State consents to the fixing of a quota under section (5). (D) TRADE BETWEEN NEUTRALS AND BELLIGERENTS ARTICLE 48 (1) A neutral State may also issue a certificate of neutrality to a vessel covered by an agreement made by the neutral State with both belligerents. (2) Such an agreement may specify the commodities and define the quantities thereof which maybe shipped from the neutral State by private persons to a
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belligerent or from a belligerent to a neutral State under guaranty of safe passage. (3) Such an agreement may be made for specific voyages or for specified periods of time. It may provide for cancellation upon notice in case of fraud or violation of its terms. (4) Such an agreement may specify that certificates of neutrality may be issued even though the shipment be made in a vessel flying a belligerent flag. (5) Beyond supervision of loading and certification, the neutral State is not responsible for the execution of such an agreement.
SECTION 6 VISIT, SEARCH AND CAPTURE GENERAL ARTICLE 49

(1) A belligerent has the right of visit and search on and over the high seas and on or over territorial waters that are not neutral. (2) A belligerent may exercise the right of visit and search only by a commissioned warship or commissioned military aircraft. Belligerent armed merchant vessels or armed non-military aircraft may not exercise the right of visit and search. (3) After a captured vessel is in port, or if a neutral vessel is voluntarily in port, the vessel may be searched by the public authorities of the belligerent; but a neutral vessel may not be diverted to port to facilitate search except as provided in Article 61 (3).
ARTICLE 50
Privateering is and remains abolished.
ARTICLE 51
A certified merchant vessel at sea shall respond to radio or other inquiries from any public vessel, giving full details of its name, flag, certificate, route and destination.
ARTICLE 52
Neutral non-military aircraft, while upon the surface of the water, shall, for purposes of visit and search, be treated as surface vessels.
ARTICLE 53
(1) In order to exercise the right of visit and search, a warship signals the vessel as by radio or by firing a blank charge. If such notice does not suffice, the warship may fire a projectile across the bows of the vessel. Before this or simultaneously, the warship shall hoist its flag, above which at night a light shall be placed. The vessel shall reply to the signal by hoisting its flag and by stopping at once. Thereupon the warship sends to the vessel a boat manned by an officer and by unarmed men of whom not more than two shall accompany the

officer on board the vessel. The boarding party may examine the ship's papers and may interrogate persons on board. It may inspect the cargo but the cargo may not be broken open or removed. Postal correspondence may not be opened or removed. (2) If the vessel when summoned does not stop, attempts to escape, or resists visit and search, it may be compelled to stop by force and the belligerent shall not be responsible for resulting injury to life or property. (3) If the visit and search gives rise to a reasonable suspicion that the vessel or its cargo is subject to condemnation or preemption, the vessel may be captured and brought or sent into port for prize proceedings. ARTICLE 54 (1) In their action with regard to unarmed merchant vessels, belligerent submarines and aircraft must conform to the rules of international law to which surface vessels are subject, except as otherwise provided in this Convention. (2) A submarine or aircraft which does not carry a small boat may direct a visited vessel to send its boat to the submarine or aircraft with an officer carrying the ship's papers. (3) In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface or submarine, or a military aircraft, may not sink or render incapable of navigation an unarmed merchant vessel without having first placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or by the presence of another vessel which is in a position to take them on board. ARTICLE 55 In their action with regard to enemy armed merchant vessels, belligerent warships, whether surface or submarine, and belligerent military aircraft are governed by the rules applicable to their action with regard to enemy warships. (B) NEUTRAL CONVOYS ARTICLE 56 A belligerent warship may not visit and search vessels under neutral convoy. The commander of a convoy shall, upon request of the commander of a belligerent warship, give, by radio or otherwise, all information as to the character of the vessels and their cargoes which could be obtained by visit and search. ARTICLE 57 If the commander of the belligerent warship has reason to suspect that the convoy includes an uncertified vessel, he may communicate his suspicion to the commander of the convoy. In such a case it is for the commander of the convoy
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alone to conduct an investigation; he must state the result of such investigation in a memorandum, of which a copy is furnished to the officer of the warship. If, in the opinion of the commander of the convoy, the facts thus stated prove the correctness of the belligerent's charges, the protection of the convoy must be withdrawn from the vessel concerned. ARTICLE 58 If the commander of the convoy and the commander of the belligerent warship are not agreed as to the character of the convoyed vessels, the former shall, upon arrival at the neutral port of destination, give a copy of his memorandum with the objections of the commander of the warship to an official of the neutral State of discharge. The neutral State of discharge shall forthwith provide for the procedure prescribed in Rule 10 of Annex II. (C) UNCONVOYED CERTIFIED VESSELS ARTICLE 59 (1) If an unconvoyed vessel displays the distinctive color and markings required of a certified vessel under Article 44 and if sea conditions make the launching of a small boat impossible, the warship must allow the vessel to proceed on its voyage but may accompany it until the sea moderates and a visit becomes possible. The vessel may not be diverted to a belligerent port to facilitate search. (2) If the vessel is visited and is found to carry a certificate of neutrality, it shall be allowed to proceed immediately without further hindrance, but the officer of the warship shall endorse a memorandum of the visit upon the certificate. ARTICLE 60 Notwithstanding the provisions of Article 59, if an unconvoyed certified vessel is found within a blockade zone, the belligerent may seize it and conduct or send it to one of its ports. Under no circumstances, except as provided in Article 53, may a certified vessel be fired upon or destroyed. (D) UNCERTIFIED VESSELS ARTICLE 61 (1) If a vessel does not display the distinctive colors and markings required of a certified vessel under Article 44, or fails to produce a certificate of neutrality, and if the belligerent as a result of visit and search has reasonable grounds for belief that the vessel or its cargo is subject to condemnation or preemption, the belligerent may capture the vessel and conduct or send it to one of its ports for prize proceedings. If to conduct or send the captured vessel to port would involve danger to the safety of the captor or to the success of the operations in which he is engaged at the time. the captured vessel may be destroyed subject to compliance with the rules laid down in Article 54. In such

cases prize proceedings shall be held on the basis of the ship's papers and other lawful evidence. (2) If sea conditions make it impossible to launch a small boat for the purpose of examining the vessel's papers, the warship may by radio require the vessel to proceed under its escort and under instructions as to speed upon an indicated route until the sea moderates. The vessel shall display at night the usual lights and failure to do so or any attempt at resistance or escape justifies the warship in firing upon the vessel and destroying it. (3) In no case may a warship divert a vessel to port to facilitate search unless the vessel has been captured in accordance with the provisions of this article. ARTICLE 62 (1) A belligerent may arrest on board an uncertified neutral vessel and hold as a prisoner of war: (a) A person incorporated in the armed forces of the enemy; (b) A person traveling to the territory of the enemy or to territory under enemy occupation, in order to join the armed forces of the enemy; (c) A person of enemy nationality traveling as an agent of the enemy for the purpose of assisting its military or naval operations, provided he is not a member of a diplomatic mission or a person charged with a diplomatic function. (2) A person arrested under this article may be removed from the vessel on which he is found, or if the vessel is brought in for adjudication, may be brought into port on the vessel. If the neutral State whose flag the vessel flies, disputes the liability to arrest of the person concerned, the belligerent shall afford to the neutral State an opportunity to have the question promptly determined in a court of the belligerent. (E) RULES OF PRIZE LAW ARTICLE 63 A prize court shall be bound by the following rules: (a) A vessel which intended to run a blockade, may be condemned together with its cargo. (b) Cargo destined for a blockaded port by sea, may be condemned; the vessel may also be condemned if the destination of the cargo was known to the owner, charterer or master of the vessel. (c) The presence of an uncertified vessel within a blockade zone is presumptive evidence of an intention to break the blockade; the presumption may be rebutted by proof that neither the vessel nor the cargo was in fact destined for a blockaded port or place by sea. (d) A certified vessel seized in a blockade zone may be condemned together with the cargo on board, unless it is proved that the vessel entered the blockade zone by mistake or in distress.
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(e) Cargo destined for belligerent territory either directly or through a neutral port, may be condemned in so far as it is composed of arms, ammunition or implements of war, or of other goods shipped in violation of a neutral State's prohibition under Article 11. If more than half of the cargo by value, weight, volume or freight is composed of goods which may be condemned, the rest of the cargo and the vessel are similarly subject to condemnation. (f) Any commodity in a cargo destined for a neutral State upon whose imports of that commodity a quota has been fixed under Article 47, but not included within a portion of the quota allocation to the State from which the commodity was shipped, may be condemned. (g) Enemy vessels and such parts of their cargo as are of enemy ownership may be condemned; the disposition of neutral cargo is not affected by the fact that it is carried in a belligerent vessel, but neutral cargo belonging to the owner, charterer, or master of a vessel which, under Article 64 or 65 a belligerent may treat as an enemy vessel, may be condemned. (h) Cargo destined for unblockaded belligerent territory or for a neutral port affording convenient access to belligerent territory and not subject to condemnation under preceding paragraphs of this article, may be preempted by the capturing belligerent upon payment of the market price current in its territory on the date of the arrival of the prize in port, plus ten per cent. (i)When a vessel's cargo is subject only to preemption, the vessel must be released and the capturing belligerent must pay damages for the delay. (f) Enemy ownership or origin of cargo on a neutral vessel does not affect the disposition of the cargo: "free ships make free goods." (k) When a vessel has been captured and brought into port for prize proceedings and the prize court finds that there was no probable cause for the capture, damages must be paid for losses suffered by the vessel and by the owners of the cargo. (1) A vessel which has been diverted to port in violation of the provisions of Article 61(3), regardless of the nature of its voyage or of its cargo, shall be released and the capturing belligerent must pay damages for the delay. (m) Postal correspondence on a captured neutral vessel is inviolable, unless it is being carried to or from a blockaded place on a vessel which is subject to condemnation for breach of blockade. (n) Postal parcels may be treated as cargo.
SECTION 7 UNNEUTRAL SERVICE ARTICLE 64

A belligerent may treat as an enemy merchant vessel: (a) A neutral vessel under the orders or immediate control of an agent of the enemy, or sailing under the convoy of enemy warships; (b) A neutral vessel in the exclusive employment of the enemy; (c) A neutral vessel on a voyage specially undertaken with a view to the transportation of individual passengers who are incorporated in the armed forces

of the enemy, or with a view to the transmission of intelligence in the interest of the enemy; (d) A neutral vessel transporting, with the knowledge of either the owner, the charterer, or the master, a military detachment of the enemy, or one or more persons who, in the course of the voyage, with the consent of either the owner, the charterer or the master, directly assist the operations of the enemy. ARTICLE 65 A belligerent may treat as an enemy warship: (a) A neutral vessel taking a direct part in hostilities on the side of the enemy; (b) A neutral vessel exclusively engaged at the time in the transportation of enemy troops. ARTICLE 66 Articles 64 and 65(b) do not apply if the vessel began its voyage before the outbreak of war, but in such case the vessel may be required to return to a neutral port. SECTION 8 TRANSFER OF FLAG ARTICLE 67 A prize court may treat as an enemy vessel: (a) A vessel transferred after the outbreak of war from the flag of a belligerent to the flag of a neutral State unless it is proved that such transfer was not made in order to evade capture by the enemy. But the court may decline to receive such proof(1) If the transfer has been made while the vessel was on a voyage or was in blockaded territory; (2) If a right to repurchase or recover the vessel is reserved to the vendor; (3) If the requirements of the municipal law governing the right to fly the flag under which the vessel is sailing, have not been fulfilled. (b) A vessel transferred within thirty days before the outbreak of war, if it is proved that such transfer was made in anticipation of the outbreak of war and for the purpose of evading capture by the enemy of the State from whose flag the vessel was transferred. SECTION 9 MARITIME BLOCKADE ARTICLE 68 A belligerent may blockade the ports and coasts belonging to or occupied by its enemy, but may not bar access to the ports or to the coasts of neutral States.
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A belligerent may support the enforcement of a blockade by proclaiming a blockade zone. Where the coast of a neutral State adjoins a belligerent coast, the limit of the blockade zone shall follow a projection of the frontier between the neutral State and the belligerent but shall not be such as to hinder access to neutral ports. In no case may a blockade zone close international straits.
ARTICLE 70
A belligerent may not establish on the high seas outside of a blockade zone a barred zone or other area however described in which it seeks to impose special prohibition, restriction or regulation upon the passage of neutral vessels. However, a belligerent may require neutral vessels in the immediate vicinity of its armed forces not to make use of their radio transmitting apparatus except for SOS calls while in the immediate vicinity of such forces.
ARTICLE 71
Blockading forces, subject to the provisions of Article 54, may control the movement of all vessels and persons within a blockade zone.
ARTICLE 72
A blockade in order to be binding must be effective, that is to say, it must be maintained by a naval or aerial force sufficient really to prevent access to and egress from the blockaded territory by sea. The question whether a blockade is effective is a question of fact, but no blockade shall be considered effective unless surface or submarine vessels or aircraft of the blockading belligerent are actually patrolling or cruising off the blockaded territory.
ARTICLE 73
For the purpose of establishment and maintenance of a blockade, a belligerent must use surface or submarine vessels or aircraft, and may also use fixed obstacles and anchored automatic contact mines which become harmless on becoming unanchored.
ARTICLE 74
(1) A blockade must be applied impartially to all vessels, including those of the blockading belligerent. (2) Subject to Article 76, if a belligerent licenses or knowingly permits its own or any other vessels to pass through the blockade, the blockade is regarded as raised.
ARTICLE 75
A blockade is not regarded as raised if the blockading forces are temporarily driven off by bad weather.

ARTICLE 76 In circumstances of distress, acknowledged by an authority of the blockading forces, a neutral vessel may enter a blockaded place and subsequently leave it, provided that it has neither discharged nor shipped any cargo there. ARTICLE 77 A blockade, in order to be binding, must be declared in accordance with Article 78 (1) and notified in accordance with Article 79. ARTICLE 78 (1) A declaration of blockade is made either by the belligerent or by the naval authorities acting in its name. It specifies: (a) The time when the blockade begins; (b) The geographical limits of the coast blockaded and of the blockade zone; (c) The time to be allowed for the departure of neutral vessels. (2) If the blockading belligerent or the naval authorities acting in its name, fail to establish the blockade in accordance with the declaration, the declaration is void and a new declaration is necessary in order to make the blockade operative. ARTICLE 79 A declaration of blockade is notified: (a) to neutral States, by the blockading belligerent; (b) to the local authorities of the territory covered by the declaration of blockade, by the officer commanding the blockading force. ARTICLE 80 The voluntary raising of a blockade, as also any restrictions in the limits of the blockade which may be introduced, must be notified in the manner prescribed by Article 79. ARTICLE 81 A belligerent may capture an uncertified neutral vessel for breach of blockade at any time during the vessel's voyage to or from a port or place against which an effective blockade existed at the time when the vessel commenced its voyage, provided that: (a) The liability of a neutral vessel to capture for breach of blockade is contingent on its knowledge, actual or presumptive, of the blockade; (b) Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the notification of the blockade to the State to which such port belongs, if such notification was made in sufficient time.

ARTICLE 82 (1) If a vessel otherwise liable to seizure for breach of blockade does not know or cannot be presumed to know of the blockade, notification must be made to the vessel itself by an officer of the visiting warship. This notification must be entered in. the vessel's log book, with indication of the day and the hour, and of the geographical position of the vessel at the time. (2) A neutral vessel which leaves a blockaded port must be allowed to pass free if, through the negligence of the officer commanding the blockading force, no declaration of blockade has been notified to the local authorities or if in the declaration as notified no time for departure has been indicated. SECTION 10 MINES ARTICLE 83 (1) A belligerent may not lay mines except in its territory and in the territory of its enemy, in blockade zones, and as provided in Article 85. (2) A belligerent may not, even in places specified by the preceding paragraph: (a) Lay automatic contact mines which are not anchored or otherwise secured unless they are so constructed as to become harmless within half an hour from the time that the belligerent who has laid them has lost control over them; (b) Lay automatic contact mines, anchored or otherwise secured, which do not become harmless on their becoming disconnected from their moorings. ARTICLE 84 A belligerent laying mines in its own or its enemy's territory outside a blockade zone shall notify all neutral States of the limits of the mined area. ARTICLE 85 Except in blockade zones, a belligerent may not lay mines, whether anchored or not, on the high seas provided that, in the course of actual engagements with or pursuit by warships of its adversary, a belligerent may throw overboard mines which become harmless within half an hour of being thrown overboard. ARTICLE 86 A belligerent shall not launch torpedoes which do not become harmless when they have completed their run. ARTICLE 87 A neutral State may lay mines only in its territory. It shall notify all other neutral States and belligerents of the limits of the mined area.

PART III AERIAL WAR SECTION 11 CLASSIFICATION AND MARKINGS ARTICLE 88 In time of war an armed private aircraft, when outside the jurisdiction of its own country, shall be deemed to have lost its status as a private aircraft, and shall thereafter be treated as if it were a belligerent military aircraft. ARTICLE 89 No aircraft may possess more than one nationality. ARTICLE 90 (1) A State shall provide in its national regulations that all aircraft having its nationality shall carry documents and bear distinctive markings indicating their nationality and character. (2) A State shall provide in its national regulations that the markings prescribed in paragraph (1) of this article shall be as large as practicable, and shall be visible from above, from below and from each side. ARTICLE 91 A State shall promptly notify to all other States the regulations which it has adopted in accordance with Article 90. ARTICLE 92 Falsification of the markings referred to in Article 90 is forbidden. ARTICLE 93 (1) A belligerent shall use the means at its disposal to prevent aircraft having its nationality from displaying the distinctive markings of a neutral State. (2) If a belligerent authorizes or permits aircraft with its nationality to display the distinctive markings of a neutral State, any neutral State may forbid all the aircraft of that belligerent access to its territory during the war. (3) If an aircraft of belligerent nationality without authorization or permission displays the distinctive markings of a neutral State, any neutral State may within its territory seize and confiscate such aircraft and intern the crew. SECTION 12 GENERAL RIGHTS AND DUTIES OF NEUTRAL STATES ARTICLE 94 A neutral State shall require a belligerent military aircraft which is in its territory at the time of the outbreak of war, to depart therefrom within twelve hours. The neutral State shall use the means at its disposal to intern belligerent military aircraft found in its territory after the expiration of this period.

ARTICLE 95 A neutral State shall use the means at its disposal: (a) To prevent belligerent military aircraft from entering its territory; and (b) To compel them to alight if they have entered; and (c) To intern them after they have alighted, whether the landing be voluntary or forced, together with persons and property on board. ARTICLE 96 The neutrality of a State is not violated by the passage through its territory of public non-military or unarmed belligerent private aircraft. ARTICLE 97 The requirements of neutrality do not in general necessitate the closing of neutral aerial frontiers against the passage of aircraft of other neutral States. ARTICLE 98 A neutral State may, when necessary for the protection of its neutral interests, intern an uncertified neutral aircraft which alights in its territory whether the landing be voluntary or forced. The neutral State may also sequester for the duration of the war all or part of the cargo. Passengers and crew shall be set at liberty. ARTICLE 99 A neutral State shall use the means at its disposal: (a) To prevent the fitting out or arming within its territory of any aircraft which is intended to engage in hostile operations against a belligerent; (b) To prevent, subject to Article 94, the flight from its territory of any aircraft which is intended to engage in hostile operations against a belligerent, or which is intended to perform services of a military character for a belligerent. SECTION 13 GENERAL RIGHTS AND DUTIES OF BELLIGERENTS ARTICLE 100 Belligerent aircraft are bound to respect the rights of neutral States and to abstain within neutral jurisdiction from the commission of any act the toleration of which by a neutral State would constitute a nonfulfillment of its neutral duty. ARTICLE 101 A belligerent may not purchase, requisition, confiscate or convert a neutral private aircraft which lands in its territory or in territory held in military occupation, but must permit it to return to its home territory.

ARTICLE 102 Neutral aircraft over the high seas, if warned of the proximity of combat or of operations immediately preparatory thereto, shall make a reasonable detour to avoid interference therewith. The commanding officer of the belligerent forces may indicate the route to be followed and may escort the neutral aircraft around the area in question. If a neutral aircraft disregards the directions which it receives from the belligerent, it takes the risk of being fired on but the belligerent is responsible to the neutral State for any damages resulting from requiring an unreasonable deviation. SECTION 14 CERTIFIED AIRCRAFT ARTICLE 103 A neutral State may issue a certificate of neutrality to an aircraft in accordance with the rules laid down in Annex II to this Convention. ARTICLE 104 The rules contained in Articles 42-46 inclusive are applicable in case of the certification of aircraft, subject to the following provisions: (a) The radio notices of departure, provided for in paragraph (4) of Article 42, are compulsory in all instances for certified aircraft; (b) The convoys provided for in Article 43 are compulsory in all instances for certified aircraft and the convoying aircraft shall be conmmissioned military aircraft of the convoying State; (c) The distinctive markings provided for in Article 44, shall be such as are suited to aircraft and shall be determined by the certifying State and notified in advance to all other States and belligerents. ARTICLE 105 (1) Certified aircraft shall report their location by radio every fifteen minutes during their flight and shall specifically draw attention to any deviation from their scheduled route. (2) The convoying aircraft shall also make reports, noting in each report the presence of the convoyed aircraft. The commander of the convoy shall arrange for alternating his reports and those of the convoyed aircraft. ARTICLE 106 Belligerents are forbidden to utilize flights of certified neutral aircraft for the purpose of shielding their own aircraft or operations. ARTICLE 107 Certified neutral aircraft may not fly over belligerent territory under penalty of attack, unless their route and time of flight have been fixed by agreement with the belligerent for the purpose of enabling them to reach their neutral destina-
535
tion, especially where such aircraft are making regularly scheduled flights on established routes. ARTICLE 108 A neutral State may, before issuing a certificate of neutrality to an aircraft, require the posting of a bond for twice the value of the aircraft, conditioned upon the aircraft not entering belligerent territory, except as specified in Article 107. If the bond is forfeited, no certificate of neutrality may, during the war, be issued to an aircraft belonging to the same owner. SECTION 15 VISIT, SEARCH AND CAPTURE ARTICLE 109 (1) A belligerent commissioned military aircraft may signal a merchant vessel to stop as by radio or by firing a machine-gun burst across its bows. (2) If sea conditions permit the aircraft to alight, the aircraft shall alight and the procedure applicable to surface vessels shall be followed. (3) If the belligerent aircraft is unable to alight, it may require the vessel to proceed on its course under instructions as to speed until the sea moderates or until a naval vessel of the belligerent appears; if visit and search are not effected by either means within six hours, or if the aircraft does not remain within sight or hearing of the merchant vessel, the vessel may resume its course at normal speed. (4) If the vessel when summoned does not stop, attempts to escape, resists visit and search, or does not proceed according to instructions, it may be compelled by force to stop and the belligerent shall not be responsible for resulting injury to life or property. ARTICLE 110 Except as provided in Articles 102 and 107, certified neutral aircraft on scheduled flights are not subject to interruption by belligerents. ARTICLE 111 (1) Uncertified neutral private aircraft are subject to visit and search by belligerent commissioned military aircraft. (2) Such belligerent aircraft may order such neutral aircraft to alight for visit and search in a locality reasonably safe and accessible. (3) Refusal, after warning, to obey such orders to alight or to proceed to such a locality for examination, exposes an aircraft to the risk of being fired upon. (4) If after visit and search the belligerent finds that neither the neutral aircraft nor its cargo is subject to condemnation or preemption, the belligerent shall supply the neutral aircraft with sufficient fuel to enable it to reach its original destination.

ARTICLE 112 The treatment of neutral aircraft, their capture and condemnation by a prize court after visit and search, shall follow by analogy the rules of Articles 61(1), 62, 63-67, inclusive, subject to the following provisions: (a) Paragraphs (a), (b), (c), (d), and (1) of Article 63 are not applicable. (b) If the aircraft is destined directly or indirectly for belligerent territory or territory occupied by a belligerent, except in cases covered by Article 107, or for the service of a belligerent, it may be condemned. PART IV INTERPRETATION ARTICLE 113 (1) If there should arise between two or more of the parties to this Convention a dispute of any kind relating to the interpretation or application of the provisions of the Convention, and if the dispute cannot be settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties providing for the settlement of international disputes. (2) In case there is no such agreement in force between the parties, the dispute shall be referred to arbitration or judicial settlement. Failing agreement by the parties upon the choice of another tribunal, the dispute shall be referred to the Permanent Court of International Justice; the court may exercise jurisdiction over the dispute, either under a special agreement between the parties, or upon an application by any party to the dispute. ADDITIONAL DECLARATION ARTICLE 114 The HIGH CONTRACTING PARTIES declare that every neutral State has a direct interest in. the observance by belligerents of the law defining neutral rights, and a violation by a belligerent of a neutral right of one neutral State constitutes a violation of a neutral right of all neutral States. [ANNEX I (ARMS, AMMUNITION AND IMPLEMENTS OF WAR), ANNEX 2 (CERTIFICATES OF NEUTRALITY) and ANNEX III (QUOTAS) omitted]
Appendix 13
DRAFT CONVENTION ON RIGHTS AND DUTIES OF STATES IN CASE OF AGGRESSION*
[The considerations of the Draft Convention on Rights and Duties of States in Case of Aggression, revealedfundamental differences of opinion regardingthe general organization of the draft, its underlying theories, and a number of the specific rules and principles set forth therein. The Research nevertheless presents it, without any implication that the Draft as published reflects even a consensus of the members of the Advisory Committee, hoping that its debates upon the problem may be continued among scholars throughout the world with 1 a view to the further clarificationof the subject.] INTRODUCTORY ARTICLE The HIGH CONTRACTING PARTIES agree to be bound, as between themselves and in all situations in which the aggressor is a party to this Convention, by the following provisions relating to the rights and duties of States in case of aggression. To the end that the application of these provisions may become universally accepted as a part of the law of nations, they invite all other States to adhere thereto. PART I USE OF TERMS ARTICLE 1 As the terms are used in this Convention: (a) A "State" is a member of the community of nations. (b) A State's "territory" comprises its land and territorial waters, and the air space above them. * Reproduced with permission from 33 Am. J.Int'IL. (Supp.) 827 (1939), The American Society of International Law. See also the Director's General Introduction ... where it is pointed out: "The proposals contained in the Drafts, and the statements in the Comments, are not to be taken to represent the individuals views of any of the persons who have taken part in their preparation. "The Research is wholly unofficial, and the Drafts must not be taken as in any way representing the views of the Government of the United States."

(c) "Aggression" is a resort to armed force by a State when such resort has been duly determined, by a means which that State is bound to accept, to constitute a violation of an obligation. (d) An "aggressor" is a State which has committed an aggression. (e) A "defending State" is a State which is the victim or object of aggression. (f) A "co-defending State" is a State which assists a defending State with armed force. (g) A "supporting State" is a State which assists a defending State without armed force. (h) "Vessel" includes aircraft. (i) "Arms, ammunition and implements of war" are those articles listed in Annex I to the Draft Convention on the Rights and Duties of Neutral States in Naval and Aerial War. PART II AGGRESSORS ARTICLE 2 By becoming an aggressor, a State does not acquire rights or relieve itself of duties. ARTICLE 3 (1) Subject to Article 14, an aggressor does not have any of the rights which it would have if it were a belligerent. Titles to property are not affected by an aggressor's purported exercise of such rights. (2) An aggressor has the duties which it would have if it were a belligerent. ARTICLE 4 (1) An aggressor does not have any of the rights which would accrue to a State not an aggressor as the result of its use of armed force. (2) Situations created by an aggressor's use of armed force do not change sovereignty or other legal rights over territory. (3) A treaty brought about by an aggressor's use of armed force is voidable. ARTICLE 5 By becoming an aggressor, a State loses the right to require other States to perform the obligations of executory treaties, but is not relieved of the duty to perform the obligations of such treaties; executed treaties are not affected. PART III DEFENDING AND CO-DEFENDING STATES ARTICLE 6 Against the aggressor, a State by becoming a defending State or a codefending State, acquires the rights which, if it were a belligerent, it would have against an opposing belligerent.
Appendix 13: Rights and Duties in Case of Aggression ARTICLE 7
539
Against States other than the aggressor, a State by becoming a defending State or a co-defending State, acquires the right to take in its own territory, or on the high seas or in the territory of the aggressor, measures to cut off the comercial or financial relations of the aggressor with other States, subject to the following rules (a) It shall not discriminate in favor of its own nationals or property or in favor of the nationals or property of any other State. (b) The manner in which it carves out such measures shall be limited by the rules on visit, search, capture and adjudication which would be applicable if it were a belligerent. (c) It may sequester seized or captured property but may not condemn it unless (i) it is a vessel entitled to fly the flag of an aggressor; or (ii) it is arms, ammunition or implements of war destined directly or indirectly to an aggressor; or (iii) it is a vessel more than half of whose cargo by value, weight, bulk or freight, is composed of arms, ammunition or implements of war destined directly or indirectly to an aggressor. (d) It may preempt sequestered property on payment of the fair market value. (e) It shall not subject persons to treatment more severe than would be justified by the rules governing belligerent rights and duties in relation to neutrals.
ARTICLE 8
A defending State or a co-defending State may take or send seized or captured vessels or cargoes to a port of its own or of any defending State, codefending State or supporting State.
ARTICLE 9
A State assumes the status of a co-defending State by giving notice of that fact to all other States.
PART IV SUPPORTING STATES ARTICLE 10

By becoming a supporting State, a State acquires the right to discriminate against the aggressor, but it may not do any act to the detriment of States other than the aggressor unless such act would be lawful if done by a defending or codefending State. Against an aggressor, a supporting State has the rights which, if it were neutral, it would have against a belligerent.
ARTICLE 11
A State assumes the status of a supporting State by giving notice of that fact to all other States.

ARTICLE 12 A State which is not an aggressor, a defending State, a co-defending State, or a supporting State, does not, in its relations with the aggressor, have the duties which, if it were neutral, it would have to a belligerent, but, against the aggressor, it has the rights which, if it were a neutral, it would have against a belligerent. ARTICLE 13 Subject to the provisions of Articles 7 and 8, a State which is not an aggressor, a defending State, a co-defending State, or a supporting State, has, in its relations with a defending State, a co-defending State or a supporting State, the duties which, if it were neutral, it would have to a belligerent; and has against those States the rights which, if it were a neutral, it would have against a belligerent. PART VI GENERAL ARTICLE 14 Nothing in this Convention shall be deemed to excuse any State for a violation of the humanitarian rules concerning the conduct of hostilities, prescribed by international law or by a treaty to which it is a party. ARTICLE 15 Nothing in this Convention shall be deemed to entitle any State to deprive an aggressor of territory, or to impair the political independence of an aggressor, as a penalty for the aggression. ARTICLE 16 The HIGH CONTRACTING PARTIES shall consult together to determine the time when the foregoing articles shall cease to operate with reference to the aggression which brought them into operation.

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The Harvard Research in International Law: Contemporary Analysis and Appraisal

John P. Grant J. Craig Barker

I 41 77 127 155 179

275 307 337 381

THE HARVARD RESEARCH: GENESIS TO EXODUS AND BEYOND

League of Nations' Codification Efforts

Research in International Law, 22 Am. J. L. 151 (1928). A note Int'l

appended, in the HistoricalSurvey of Development of InternationalLaw and its

Resolution of 27 September 1927, L.N.O.J. Spec. Supp. No. 53, 9; 22 Am. J.

supra n. 37, 171, Appendix 10.

General Introduction, 23 Am. J.Int'lL. (Spec. Supp) 1 at 9 (1929) and 26 Am.

n. I at 152. See also General Introduction, 23 Am. J. Int'l L. I at 3

Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft

convention appears below as Appendix 1.

Flournoy and Hudson, A Collection of the Nationality Laws of Various

Countries (1930). 65 General Introduction, 23 Am. J. Int'l L. (Spec. Supp.) 1 at 9 (1929).

Second phase (1929-32)

id. 64, 143.

67 L.N.O.J. Supp. No.

Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft

the draft convention appears below as Appendix 6.

A Collection of Piracy Laws of Various Countries, 26 Am. J Int'l

reprinted in 20 Am. J.Int'l L. (Spec. Supp.) 243

(2008). The text of the draft convention appears below as Appendix 8.

Hein in the HarvardResearch in InternationalLaw (2008). The text of the draft

Hudson, International Legislation, Vol. 4, 2401 (1933).

General Introduction, 33 Am. J. Int'IL. (Supp.) 1 at 8 (1939).

1956 ILL.C. Yb. 228.

author of one of the seminal books on State responsibility, Responsibility of

1961 IlL.C. Yb. 196.

The Harvard Research: Genesis to Exodus

Harvard Research on International Law

122 See n. 1, supra.

the appreciations of Hudson in 74 Harv. L. R. (1960) by Dean Griswold

Messigian, Love's Labour's Lost: Michael Lewis Clark's Constitutional

Burgess, Hostis Humani Generi: Piracy, Terrorism and a New International

References 263 226 98 75 69 61 57 50 40 39 33 29 25

Source: databases of HeinOnline, Lexis/Nexis and Westlaw, using the search

Yearbook of International Law, British Yearbook of International Law and

Nationality, in 3 Encyclopedia of Public InternationalLaw,

Denza, Diplomatic Agents and Missions, Privileges and Immunities, in 1

3 Encyclopedia of Public InternationalLaw, 56; Dinstein, Neutrality

in Sea Warfare, in 3 Encyclopedia of PublicInternationalLaw, 566.

Bernhardt, Treaties, in 4 Encyclopedia of PublicInternationalLaw, 926.

International Law, 941.

Ibid., 346. 155Ibid., 355.

Ibid., 579 (appearing in the bibliographical footnote to the introduction of the

chapter: The Law of Treaties).

171 Ibid., 746. 172 Ibid., 948.

Ibid., Ibid., Ibid., Ibid., 77 1 Ibid.,

Ibid., 1228. Ibid., 1236. Ibid., 1266. Ibid., 1284.

19 Ibid., 432 RN3.

1155 U.N.T.S. 33.

213 214 215

Law ofthe Sea 1982, 1833 U.N.IS. 3, arts. 100 107.

Harvard Research on International Law

The Experts' Views

The Effect of Armed Conflict on Treaties: An Examination of Practice and

Chapter Chapter Chapter Chapter Chapter Chapter

4, infra. 5, infra. 6, infra. 7, infra. 8, infra. 9, infra.

Chapter 10, infra.

287 Chapter 11, infra. 28 Chapter 12, infra.

Chapter 13, infra.

290 Chapter 14, infra.