1 The 34 members of the Commission serve concurrent 5-year terms. Pursuant to the Commission’s Statute, the UN General Assembly elected members for the next quinquennium in November 1986, from a list of candidates nominated by member governments. Former members who will not be returning to the Commission, either because they did not stand for reelection or because they did not receive the requisite number of votes, are Chief Richard O. A. Akinjide, Justice Mikuin L. Balanda, Minister Jorge Castaneda, Chief Justice Khalafalla El Rasheed Mohamed-Ahmed, Ambassador Constantin Flitan, Ambassador Jiahua Huang, Dr. S. P. Jagota, Ambassador Jose M. Lacleta, Ambassador Chafic Malek, Attorney General Syed S. Pirzada, Professor Willem Riphagen, Sir Ian Sinclair, Ambassador Sompong Sucharitkul and Professor Nicolai Ushakov. In view of the fact that there will be so many new members at the 1987 session, and that the ILC is a collegial body, it would not be surprising if work were to get off to a comparatively slow start at that session.

2 The entire set of draft articles may be found in the Commission’s report to the General Assembly on its 1986 session. See Report of the International Law Commission on the Work of its Thirty-eighth Session, 41 UN GAOR Supp. (No. 10), UN Doc. A/41/10 (1986) [here-inafter 1986 ILC Report]. However, the report contains commentaries only to those articles and paragraphs that were adopted in 1986; commentaries to other articles will be found in the reports for the years in which they were adopted.

3 Ambassador Sucharitkul did not stand for reelection to the Commission. A new special rapporteur will therefore have to be appointed for this topic.

4 Paragraph 2 of Article 2 reads as follows: “The provisions of paragraph 1 regarding the use of terms in the present articles are without prejudice to the use of those terms or to the meanings which may be given to them in other international instruments or in the internal law of any State.” 1986 ILC Report, supra note 2, at 25.

5 The first paragraph of Article 3 provides as follows:

Interpretative provisions

1. The expression “State” as used in the present articles is to be understood as comprehending:

(a) the State and its various organs of government,

(b) political subdivisions of the State which are entitled to perform acts in the exercise of the sovereign authority of the State,

(c) agencies or instrumentalities of the State, to the extent that they are entitled to perform acts in the exercise of the sovereign authority of the State,

(d) representatives of the State acting in that capacity.

Id. at 27.

6 Article 4 provides as follows:

Privileges and immunities not affected by the present articles

1. The present articles are without prejudice to the privileges and immunities enjoyed by a State in relation to the exercise of the functions of:

(a) its diplomatic missions, consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences, and

(b) persons connected with them.

2. The present articles are likewise without prejudice to the privileges and immunities accorded under international law to heads of State ratione personae.

Id. at 30.

7 Article 5 provides as follows:

Non-retroactivity of the present articles

Without prejudice to the application of any rules set forth in the present articles to which jurisdictional immunities of States and their property are subject under international law independently of the present articles, the articles shall not apply to any question of jurisdictional immunities of States or their property arising in a proceeding instituted against a State before a court of another State prior to the entry into force of the said articles for the States concerned.

Id. at 33.

8 Cf. Jackson v. People’s Republic of China, 596 F.Supp. 386 (N.D. Ala. 1984), aff’d, 794 F.2d 1490 (11th Cir. 1986). See also Slade v. United States of Mexico, 617 F.Supp. 351 (D.D.C. 1986) (FSIA could not be applied retroactively to allow suit on debt incurred prior to 1952).

9 Article 6, “State immunity,” provides: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present articles [and the relevant rules of general international law].” 1986 ILC Report, supra note 2, at 34.

10 The inability to resolve this issue also thwarted agreement on the title to part 3, which, as provisionally adopted, reads: “[Limitations on] [Exceptions to] State Immunity.”

11 See, e.g., the Australian Foreign States Immunities Act 1985, reprinted in 25 ILM 715 (1986); Singapore’s State Immunity Act 1979, reprinted in Materials on Jurisdictional Immunities of States and Their Property, UN Doc. ST/LEG/SER.B/20, at 28 (UN Pub. No. E/F.81.V. 10, 1982); Pakistan’s State Immunity Ordinance 1981, reprinted in id. at 20; and the European Convention on State Immunity, 1972 ETS 74.

12 Article 20, “Cases of nationalization,” reads as follows: “The provisions of the present articles shall not prejudge any question that may arise in regard to extraterritorial effects of measures of nationalization taken by a State with regard to property, movable or immovable, industrial or intellectual.” 1986 ILC Report, supra note 2, at 36.

13 This article would presumably cover the United Kingdom’s Mareva injunctions, even though they operate in personam, and not directly against defendant’s property. See Mareva Companía Naviera, S.A. v. International Bulkcarriers, Ltd., [1975] 2 Lloyd’s Rep. 509; and Hetherington, M., Mareva Injunctions (1983)Google Scholar. This is so because the article provides that the state enjoys immunity in respect of measures of constraint on, inter alia, the use of its property.

14 Article 21 provides as follows:

State immunity from measures of constraint

A State enjoys immunity, in connection with a proceeding before a court of another State, from measures of constraint, including any measure of attachment, arrest and execution, on the use of its property or property in its possession or control [, or property in which it has a legally protected interest,] unless the property:

(a) is specifically in use or intended for use by the State for commercial [non-governmental] purposes and has a connection with the object of the claim, or with the agency or instrumentality against which the proceeding was directed; or

(b) has been allocated or earmarked by the State for the satisfaction of the claim which is the object of that proceeding.

1986 ILC Report, supra note 2, at 38.

15 The only condition to this provision (§1610(b)(2)) is that the judgment relate to a claim for which the entity is not immune under the Act. The greater liberality of the FSIA on this point may be only theoretical, however, since it seems likely that most of the property of a foreign state agency or instrumentality that is engaged in commercial activity would qualify as being used or intended for use for commercial purposes.

16 Emphasis added.

17 Common law concepts such as easements, servitudes, equitable charges or even debts (including bank deposits) would presumably not be covered by the phrase “its property or property in its possession or control,” unless the term “property” were defined broadly. On the other hand, the commentary to Article 21 takes the position that “[t]he interest of the State may be so marginal as to be unaffected by any measure of constraint, or by nature [it] . . . may remain intact irrespective of the measure of constraint placed upon the use of the property.” As examples of such interests the commentary cites, inter alia, easements and servitudes.

18 Article 22 provides as follows:

Consent to measures of constraint

1. A State cannot invoke immunity, in connection with a proceeding before a court of another State, from measures of constraint on the use of its property or property in its possession or control [, or property in which it has a legally protected interest,] if and to the extent that it has expressly consented to the taking of such measures in respect of that property, as indicated:

(a) by international agreement;

(b) in a written contract; or

(c) by a declaration before the court in a specific case.

2. Consent to the exercise of jurisdiction under article 8 shall not be held to imply consent to the taking of measures of constraint under Part IV of the present articles, for which a separate consent shall be necessary.

1986 ILC Report, supra note 2, at 41.

19 The comments made in relation to Article 21 concerning the bracketed phrase “legally protected interest” (see note 17 supra and accompanying text) apply to Article 22 as well.

20 While the practice of many states that follow the restrictive theory seems concordant with the principle expressed in Article 22(2), that of the United States may be viewed as being at odds with it. See, e.g., Ipitrade Int’l v. Federal Republic of Nigeria, 465 F.Supp. 824 (D.D.C. 1978); and Birch Shipping Corp. v. Embassy of Tanzania, 507 F.Supp, 311 (D.D.C. 1980). But cf. the section-by-section analysis of the FSIA relating to §1610(a)(1) in H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976), which speaks of waiver of “immunity from execution.”

21 Article 23 provides as follows:

Specific categories of property

1. The following categories of property of a State shall not be considered as property specifically in use or intended for use by the State for commercial [non-governmental] purposes under paragraph (a) of article 21,

(a) property, including any bank account, which is in the territory of another State and is used or intended for use for the purposes of the diplomatic mission of the State or its consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences;

(b) property of a military character or used or intended for use for military purposes;

(c) property of the central bank or other monetary authority of the State which is in the territory of another State;

(d) property forming part of the cultural heritage of the State or part of its archives which is in the territory of another State and not placed or intended to be placed on sale;

(e) property forming part of an exhibition of objects of scientific or historical interest which is in the territory of another State and not placed or intended to be placed on sale.

2. A category of property, or part thereof, listed in paragraph 1 shall not be subject to measures of constraint in connection with a proceeding before a court of another State, unless the State in question has allocated or earmarked that property within the meaning of paragraph (b) of article 21, or has specifically consented to the taking of measures of constraint in respect of that category of its property, or part thereof, under article 22.

1986 ILC Report, supra note 2, at 42–43.

22 For example, paragraph 1(c), in the present writer’s view, should be reformulated to make clear that property of the central bank, to enjoy the protection of Article 23, must be held for its own account. Further, subparagraphs (d) and (e) are rather novel and do not clearly indicate whether they would cover property used, e.g., in a trade fair for advertising purposes. Moreover, it is not clear that problems with respect to the kinds of property referred to in those subparagraphs arise sufficiently often to justify their retention.

23 Article 24 provides as follows:

Service of process

1. Service of process by any writ or other document instituting a proceeding against a State shall be effected:

(a) in accordance with any special arrangement for service between the claimant and the State concerned; or

(b) failing such arrangement, in accordance with any applicable international convention binding on the State of the forum and the State concerned; or

(c) failing such arrangement or convention, by transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned; or

(d) failing the foregoing, and if permitted by the law of the State of the forum and the law of the State concerned:

(i) by transmission by registered mail addressed to the head of the Ministry of Foreign Affairs of the State concerned requiring a signed receipt; or

(ii) by any other means.

2. Service of process by the means referred to in paragraphs 1 (c) and (d) (i) is deemed to have been effected by receipt of the documents by the Ministry of Foreign Affairs.

3. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned.

4. Any State that enters an appearance on the merits in a proceeding instituted against it may not thereafter assert that service of process did not comply with the provisions of paragraphs 1 and 3.

1986 ILC Report, supra note 2, at 45–46.

24 It would probably be more difficult—or at least more time–consuming—for the private litigant to effect service under Article 24 than under §1608 of the FSIA. For example, while § 1608(a)(3) allows process to be sent through the clerk of the court to the head of the foreign ministry of the defendant state, Article 24(1 )(c) requires process to be transmitted through diplomatic channels to the defendant’s foreign ministry—an extra step that would probably cost some time. Indeed, the latter method is the “last resort” for service of process under the FSIA (§ 1608(a)(4)). Article 24’s “last resort” methods are somewhat limited by the fact that they must be “permitted by the law of the State of the forum and the law of the State concerned.” The first of them is the equivalent of the penultimate method allowed under § 1608(a)(3), discussed above; the second is “by any other means [permitted by the laws of the two states concerned].”

25 Article 25 provides as follows:

Default judgement

1. No default judgement shall be rendered against a State except on proof of compliance with paragraphs 1 and 3 of article 24 and the expiry of a period of time of not less than three months from the date on which the service of the writ or other document instituting a proceeding has been effected or deemed to have been effected in accordance with paragraphs 1 and 2 of article 24.

2. A copy of any default judgement rendered against a State, accompanied if necessary by a translation into the official language or one of the official languages of the State concerned, shall be transmitted to it through one of the means specified in paragraph 1 of article 24 and any time–limit for applying to have a default judgement set aside, which shall be not less than three months from the date on which the copy of the judgement is received or is deemed to have been received by the State concerned, shall begin to run from that date.

1986 ILC Report, supra note 2, at 47–48.

26 Article 26, “Immunity from measures of coercion,” provides: “A State enjoys immunity, in connection with a proceeding before a court of another State, from any measure of coercion requiring it to perform or to refrain from performing a specific act on pain of suffering a monetary penalty.” Id. at 48.

27 Article 27 provides as follows:

Procedural immunities

1. Any failure or refusal by a State to produce any document or disclose any other information for the purposes of a proceeding before a court of another State shall entail no consequences other than those which may result from such conduct in relation to the merits of the case. In particular, no fine or penalty shall be imposed on the State by reason of such failure or refusal.

2. A State is not required to provide any security, bond or deposit, however described, to guarantee the payment of judicial costs or expenses in any proceeding to which it is a party before a court of another State.

Id. at 49.

28 Query whether allowing the court to draw inferences relating to the merits is sufficient, since nondisclosure of jurisdictional facts may be equally (or more) important. See, e.g., Insurance Co. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), in which the Court affirmed the imposition by the district court of discovery sanctions under FRCP Rule 37(b), viz., the assumption that certain jurisdictional facts were established when defendant failed to comply with a discovery order.

29 Article 28 provides as follows:

Non-discrimination

1. The provisions of the present articles shall be applied on a non–discriminatory basis as between the States parties thereto.

2. However, discrimination shall not be regarded as taking place:

(a) where the State of the forum applies any of the provisions of the present articles restrictively because of a restrictive application of that provision by the other State concerned;

(b) where by agreement States extend to each other treatment different from that which is required by the provisions of the present articles.

1986 ILC Report, supra note 2, at 50.

30 The Commission’s 1986 report follows standard practice in setting forth the draft articles and commentary. See note 2 supra.

31 Article 28 provides as follows:

Protection of the diplomatic bag

1. The diplomatic bag shall [be inviolable wherever it may be, it shall] not be opened or detained [and shall be exempt from examination directly or through electronic or other technical devices].

2. Nevertheless, if the competent authorities of the receiving [or the transit] State have serious reasons to believe that the [consular] bag contains something other than the correspondence, documents or articles referred to in article 25, they may request [that the bag be subjected to examination through electronic or other technical devices. If such examination does not satisfy the competent authorities of the receiving [or transit] State, they may further request] that the bag be opened in their presence by an authorized representative of the sending State. If [either] [this] request is refused by the authorities of the sending State, the competent authorities of the receiving [or the transit] State may require that the bag be rettrrned to its place of origin.

1986 ILC Report, supra note 2, at 66.

32 Article 27(3) of the Convention (Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95) provides simply: “The diplomatic bag shall not be opened or detained.”

33 Article 35(3) of the Convention (Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261) provides as follows:

The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this Article, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.

34 The expression “literal regime” is used because some Commission members took the position that nothing in the text of Article 27(3) of the Vienna Diplomatic Convention prohibits a challenge procedure such as that provided for under Article 35(3) of the Vienna Consular Convention.

35 This proposal was made by Sir Ian Sinclair. It also provided that states declaring that they would apply the consular bag regime to the diplomatic bag would not be entitled to object to reciprocal treatment of their diplomatic bags.

36 These two articles provide as follows:

Article 29

Exemption from customs duties, dues and taxes

The receiving State or, as the case may be, the transit State shall, in accordance with such laws and regulations as it may adopt, permit the entry, transit and departure of the diplomatic bag and shall exempt it from customs duties and all national, regional or municipal dues and taxes and related charges other than charges for storage, cartage and similar services.

Article 30

Protective measures in case of force majeure or other circumstances

1. In the event that, due to force majeure or other circumstances, the diplomatic courier, or the captain of a ship or aircraft in commercial service to whom the bag has been entrusted or any other member of the crew is no longer able to maintain custody of the diplomatic bag, the receiving State or, as the case may be, the transit State shall take appropriate measures to inform the sending State and to ensure the integrity and safety of the diplomatic bag until the authorities of the sending State take re–possession of it.

2. In the event that, due to force majeure, the diplomatic courier or the diplomatic bag is present in the territory of a State which was not initially foreseen as a transit State, that State shall accord protection to the diplomatic courier and the diplomatic bag and shall extend to them the facilities necessary to allow them to leave the territory.

1986 ILC Report, supra note 2, at 67.

37 Article 31 , “ Non-recognition of States or Governments or absence of diplomatic or consular relations,” provides: “The facilities, privileges and immunities accorded to the diplomatic courier and the diplomatic bag under the present articles shall not be affected either by the non-recognition of the sending State or of its Government or by the non–existence of diplomatic or consular relations.” Id.

38 Opened for signature Mar. 14, 1975, UN Doc. A/CONF. 67/16, reprinted in 69 AJIL 730 (1975).

39 See para. 5 of the commentary to Art. 31, 1986 ILC Report, supra note 2, at 79.

40 These two articles provide as follows:

Article 32

Relationship between the present articles and existing bilateral and regional agreements

The provisions of the present articles shall not affect bilateral or regional agreements in force as between States parties to them.

Article 33

Optional declaration

1. A State may, at the time of expressing its consent to be bound by the present articles, or at any time thereafter, make a written declaration specifying any category of diplomatic courier and corresponding category of diplomatic bag listed in paragraphs 1 and 2 of article 3, to which it will not apply the present articles.

2. Any declaration made in accordance with paragraph 1 shall be communicated to the depositary who shall circulate copies thereof to the parties and to the States entitled to become parties to the present articles. Any such declaration made by a contracting State shall take effect upon the entry into force of the present articles for that State. Any such declaration made by a party shall take effect upon the expiry of a period of three months from the date upon which the depositary has circulated copies of that declaration.

3. A State which has made a declaration under paragraph 1 may at any time withdraw it by a notification in writing.

4. A State which has made a declaration under paragraph 1 shall not be entitled to invoke the provisions relating to any category of diplomatic courier and diplomatic bag mentioned in the declaration as against another party which has accepted the applicability of those provisions to that category of courier and bag.

Id. at 80 and 81–82, respectively.

41 I.e., the 1961 Diplomatic Relations Convention, supra note 32, the 1963 Consular Relations Convention, supra note 33, the Convention on Special Missions, opened for signature Dec. 16, 1969, Annex to GA Res. 2530 (XXIV) (Dec. 8, 1969), and the 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, supra note 38.

42 Regrettably, Professor Riphagen was not reelected to the Commission by the General Assembly in the elections of November 1986. This means that the Commission will have to appoint a new special rapporteur for state responsibility.

43 The texts of these articles, together with the annex, are set forth in 1986 ILC Report, supra note 2, at 89 n.71.

44 These general principles were those relating to:

(1) the juridical nature of the offense;

(2) the official position of the offender;

(3) the application of criminal law in time;

(4) the application of criminal law in space; and

(5) exceptions to criminal responsibility:

(a) coercion, state of necessity and force majeure;

(b) error;

(c) superior orders;

(d) the official position of the perpetrator;

(e) self-defense; and

(f) means of defense based on reprisals.

See 1986 ILC Report, supra note 2, at 126–37.