1 The special rapporteurship was left vacant by the untimely death in September 1984 of Professor Robert Quentin Quentin-Baxter. The Commission at its 1985 session appointed Ambassador Julio Barboza to fill this vacancy. Ambassador Barboza submitted a preliminary report but was not able to be present to introduce it. In accordance with its usual method of work, the Commission postponed consideration of the report until it could be taken up in the presence of the special rapporteur.

2 Statute of the International Law Commission, Art. 11, UN Doc. A/CN.4/4/Rev.2 (1982).

3 For those not familiar with the Commission’s methods of work, it should be emphasized that reports of special rapporteurs, which are ultimately published in volume II, part 1 of the Yearbook of the International Law Commission, are solely the work of the rapporteurs and do not necessarily reflect the views of the Commission as a whole.

4 For the 1954 version of the code, UN Doc. A/CN.4/85 (1954), see 9 UN GAOR Supp. (No. 9) at 9, UN Doc. A/2693 (1954), reprinted in [1954] 2 Y.B. Int’l L. Comm’n 112, UN Doc. A/CN.4/SER.A/1954/Add.1. It is also reproduced in the Report of the International Law Commission on the Work of its Thirty-fifth Session, 38 UN GAOR Supp. (No. 10) at 13, UN Doc. A/38/10 (1983). For a brief discussion of the background of the Commission’s work on the draft code, see McCaffrey, Current Developments Note, 78 AJIL 457, 472–73 (1984).

5 Principles of International Law Recognized in the Charter of the Nuernberg Tribunal and in the Judgment of the Tribunal, text adopted by the International Law Commission at its second session, in 1950, and submitted to the General Assembly. See [1950] 2 Y.B. Int’l L. Comm’n 374, UN Doc. A/CN.4/SER.A/1950/Add.1(pt.2). Principle I reads: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”

6 Article 19, “International crimes and international delicts,” is intended to distinguish between states’ internationally wrongful acts of different degrees of seriousness: the most serious have been denominated provisionally—and, in the author’s view, inaccurately—international “crimes,” and the less serious international “delicts.” For the text of Article 19, see [1979] 2 Y.B. Int’l L. Comm’n 1, 92, UN Doc. A/CN.4/SER.A/1979/Add.1(pt. 2).

7 The text of Article 4, as well as a summary of the Commission’s discussion of it, is contained in the Commission’s report to the General Assembly on its 1985 session, 38 UN GAOR Supp., (No. 10) at 27–34, UN Doc. A/40/10 (1985).

8 See note 6 supra and accompanying text.

9 Art. 19, para. 2, supra note 6.

10 As provisionally adopted by the Commission, Article 23, which will be renumbered as Article 18, provides:

Article 23 [18]

Immunity from jurisdiction

1. The diplomatic courier shall enjoy immunity from the criminal jurisdiction of the receiving State, or, as the case may be, the transit State in respect of all acts performed in the exercise of his functions.

2. He shall also enjoy immunity from the civil and administrative jurisdiction of the receiving State or, as the case may be, the transit State in respect of all acts performed in the exercise of his functions. This immunity shall not extend to an action for damages arising from an accident caused by a vehicle the use of which may have involved the liability of the courier where those damages are not recoverable from insurance.

3. No measures of execution may be taken in respect of the diplomatic courier, except in cases where he does not enjoy immunity under paragraph 2 of this article and provided that the measures concerned can be taken without infringing the inviolability of his person, temporary accommodation or the diplomatic bag entrusted to him.

4. The diplomatic courier is not obliged to give evidence as a witness in cases involving the exercise of his functions. He may be required to give evidence in other cases provided that this would not cause unreasonable delays or impediments to the delivery of the diplomatic bag.

5. The immunity of the diplomatic courier from the jurisdiction of the receiving State or the transit State does not exempt him from the jurisdiction of the sending State.

11 Apr. 18, 1961, 500 UNTS 95, 23 UST 3227 (entered into force Apr. 24, 1964). Like Article 16 of the Commission’s current project on the courier and bag, Article 27(5) of the Vienna Convention provides that “[t]he diplomatic courier . . . shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.” It contains no provision concerning the immunity of the courier vel non from jurisdiction.

12 Article 28, which will be renumbered as Article 21, provides as follows:

Article 28 [21]

Duration of privileges and immunities

1. The diplomatic courier shall enjoy privileges and immunities from the moment he enters the territory of the receiving State or, as the case may be, the transit State in order to perform his functions, or, if he is already in the territory of the receiving State, from the moment he begins to exercise his functions. Such privileges and immunities shall normally cease at the moment when the diplomatic courier leaves the territory of the receiving State or the transit State. However, the privileges and immunities of the diplomatic courier ad hoc shall cease at the moment when the courier has delivered to the consignee the diplomatic bag in his charge.

2. When the functions of the diplomatic courier come to an end in accordance with article 11(b), his privileges and immunities shall cease at the moment when he leaves the territory of the receiving State, or on the expiry of a reasonable period in which to do so.

3. Notwithstanding the foregoing paragraphs, immunity shall continue to subsist with respect to acts performed by the diplomatic courier in the exercise of his functions.

13 This is the now famous expression of Baron Parke in Joel v. Morison, 172 Eng. Rep. 1338 (1834), in instructing a jury on the circumstances in which they could find that a servant was acting in the scope of his employment.

14 Article 29, which will be renumbered as Article 22, provides as follows:

Article 29 [22]

Waiver of immunities

1. The sending State may waive the immunities of the diplomatic courier.

2. Waiver must always be express, except as provided in paragraph 3 of this article, and shall be communicated in writing.

3. The initiation of proceedings by the diplomatic courier shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

5. If the sending State does not waive the immunity of the diplomatic courier in respect of a civil action, it shall use its best endeavours to bring about a just settlement of the case.

15 Article 30, which will be renumbered as Article 23, provides as follows:

Article 30 [23]

Status of the captain of a ship or aircraft entrusted with the diplomatic bag

1. The captain of a ship or aircraft in commercial service which is scheduled to arrive at an authorized port of entry may be entrusted with the diplomatic bag of the sending State or of a mission, consular post or delegation of that State.

2. The captain shall be provided with an official document indicating the number of packages constituting the bag entrusted to him, but he shall not be considered to be a diplomatic courier.

3. The receiving State shall permit a member of a mission, consular post or delegation of the sending State to have unimpeded access to the ship or aircraft in order to take possession of the bag directly and freely from the captain or to deliver the bag directly and freely to him.

18 Article 31, which will be renumbered as Article 24, provides as follows:

Article 31 [24]

Identification of the diplomatic bag

1. The packages constituting the diplomatic bag shall bear visible external marks of their character.

2. The packages constituting the diplomatic bag, if unaccompanied by a diplomatic courier, shall also bear a visible indication of their destination and consignee.

17 Article 32, which will be renumbered as Article 25, provides as follows:

Article 32 [25]

Content of the diplomatic bag

1. The diplomatic bag may contain only official correspondence, and documents or articles intended exclusively for official use.

2. The sending State shall take appropriate measures to prevent the dispatch through its diplomatic bag of articles other than those referred to in paragraph 1.

18 I.e., those governed by the 1961 Vienna Convention, supra note 11; the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261 (entered into force Mar. 19, 1967); the Convention on Special Missions, Dec. 8, 1969, Annex to GA Res. 2530, 24 UN GAOR Supp. (No. 30) at 99, UN Doc. A/7630 (1969); and the Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, opened for signature Mar. 14, 1975, UN Doc. A/CONF.67/16 (1975).

19 The four conventions are listed in note 18 supra.

20 The remaining two articles, Articles 34 and 35 (to be renumbered as Articles 26 and 27, respectively), require no comment. Article 34 [26], “Transmission of the diplomatic bag by postal service or by any mode of transport,” provides: “The conditions governing the use of the postal service or of any mode of transport, established by the relevant international or national rules, shall apply to the transmission of the packages constituting the diplomatic bag.” Article 35 [27], “Facilities accorded to the diplomatic bag,” provides: “The receiving State or, as the case may be, the transit State shall provide the facilities necessary for the safe and rapid transmission or delivery of the diplomatic bag.”

21 Paragraph 1 of the article thus provides that “a State may not invoke immunity” in a “proceeding relating to the operation of [a] ship . . . in use or intended exclusively for use for commercial [non-governmental] purposes.”

22 See the discussion of Article 3, paragraph 2 in the Note on the Commission’s 1983 session, supra note 4, at 463–64.

23 Included are proceedings concerning claims in respect of (a) collision or other navigational accidents, (b) assistance, salvage or general average, and (c) repairs, supplies or other contracts relating to the ship.

24 International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels, done at Brussels, Apr. 10, 1926, 176 LNTS 199.

25 Article 3, section 1 of the 1926 Brussels Convention in its second paragraph deals with the very limited circumstances under which an individual has the right to bring an action in the state owning or operating a vessel that, at the time the cause of action arose, was being used “exclusively on governmental and non-commercial service.”

26 They relate to: (a) “the validity or interpretation of the arbitration agreement,” (b) “the arbitration procedure,” and (c) “the setting aside of the award.”

27 In 1971 the Commission completed a set of draft articles on the status, privileges and immunities of the representatives of states to international organizations. This draft formed the basis of the 1975 Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character, supra note 18. In 1976 the Commission began work on the present draft, which has been denominated the “second part” of the topic.

28 See, e.g., the “Roth Amendment” to the State Department authorization bill, Foreign Relations Authorization Act, Fiscal Years 1986–1987, Pub. L. No. 99–93, 99 Stat. 405 (1985), which imposes certain restrictions on the travel of UN civil servants.