1 July 28, 1951, 19 UST 6259, TIAS No. 6577, 189 UNTS 150, Art. 1(A)(2). See also the 1967 Protocol Relating to the Status of Refugees, done Jan. 31, 1967, 606 UNTS 267, 19 UST 6223, TIAS No. 6577, Art. 1(2) (which incorporates the above definition).

2 See, for example, the definition of refugee under the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 UNTS 45, Article I(2) of which provides additionally:

3 Title II, §201(42) of the Refugee Act of 1980 (Pub. L. No. 96–212, 94 Stat. 102) defines “refugee” to mean, inter alia:

This provision has provided the basis for the Orderly Departure Program (ODP) administered by the UN High Commissioner for Refugees, under which “refugees” are airlifted from Ho Chi Minh City to Bangkok for onward journey to resettlement countries.

4 Article 1(c)(4) of the 1951 Convention, note 1 supra, provides, inter alia, that the Convention shall cease to apply to any person who “has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution.”

5 There is a wealth of literature on the various valuation aspects of compensation, only a few of which need be mentioned: The Valuation of Nationalized Property in International Law (3 vols., R. Lillich ed. 1972); G. White, Nationalisation of Foreign Property (1961); I. Foighel, Nationalization (1957); A. Lowenfeld, Expropriation in the Americas (1971).

6 Brownlie, , The Individual before Tribunals Exercising International Jurisdiction , 11 Int’l & Comp. L.Q. 701, 702 (1962)CrossRefGoogle Scholar.

7 Supplement to Part III of Progress Report of the United Nations Mediator on Palestine, 3 UN GAOR Supp. (No. 11), UN Doc. A/648 (1948).

8 Id. at 17, para. 3. The fifth of the seven basic premises reads: “The right of innocent people, uprooted from their home by the present terror and ravages of war, to return to their homes, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return.” Id.

9 Id. at 18, para. 4(h).

10 3 UN GAOR, pt. 1, C.1 (213th mtg.) at 771 (1948).

11 See second revised draft resolution of Nov. 30, 1948, submitted by the UK delegation. 3 UN GAOR, pt. 1, C.1 Annexes at 61, 64, UN Doc. A/C.1/394/Rev.2, para. 11 (1948). On the relationship between international law and equity, Whiteman wrote:

The distinctions between the two are not, however, always maintained. Whiteman continued:

3’ Whiteman, M., Damages in International Law 1732 (1937)Google Scholar (footnotes omitted).

12 3 UN GAOR, pt. 1, C.1 (226th mtg.) at 909 (1948).

15 3 UN GAOR, pt. 1, C.1 Annexes at 88, UN Doc. A/C.1/408/Rev.1 (1948).

14 See id. at 90 (revised amendment to the Australian amendment).

15 GA Res. 194 (III), 3 UN GAOR, pt. 1, Res. at 21, 24, UN Doc. A/810 (1948) (emphasis added).

16 See, e.g., GA Res. 393 (V) (Dec. 2, 1950); GA Res. 1604 (XV) (Apr. 21, 1961); GA Res. 2452B (XXIII) (Dec. 19, 1968); GA Res. 2535A (XXIV) (Dec. 10, 1969); GA Res. 2672A (XXV) (Dec. 8, 1970); GA Res. 2792A (XXVI) (Dec. 6, 1971); GA Res. 2963A (XXVII) (Dec. 13, 1972); GA Res. 3089B (XXVIII) (Dec. 7, 1973); GA Res. 38/83A (Dec. 15, 1983); and GA Res. 39/33A and H (Dec. 14, 1984).

In its 22d progress report of Nov. 1, 1963, the Conciliation Commission announced the completion of the program of identification and evaluation of Arab property in Israel. See 19 UN GAOR Annex 11 at 1, UN Doc. A/5700 (1964).

17 Para. 8(c), GA Res. 428 (V), Annex: Statute of the Office of the United Nations High Commissioner for Refugees [hereinafter cited as UNHCR], 5 UN GAOR Supp. (No. 20) at 46, UN Doc. A/1775 (1950). On the role of the UNHCR in voluntary repatriation, see Hofmann, , Voluntary Repatriation and UNHCR , 44 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht [Zaörv] 327 (1984)Google Scholar. See also Nagendra, Singh, The Role and Record of the Un High Commissioner for Refugees 53 (1984)Google Scholar; Voluntary Repatriation (background paper prepared for the Round Table on Voluntary Repatriation, convened by the UNHCR in cooperation with the International Institute of Humanitarian Law, San Remo, Italy, July 16–19, 1985).

18 See Note on International Protection, submitted by the High Commissioner, UN Doc. A/AC.96/660, at 9 (1985).

19 Id.

20 Id.

21 Id. For earlier developments, see U.S. Committee for Refugees, World Refugee Survey 1984, at 44–45; Dep’t of State, Country Reports on the World Refugee Situation: Report to the Congress for Fiscal Year 1985, at 4 (1984); New African (London), December 1984, at 44.

22 Other than voting for relevant General Assembly resolutions. See, e.g., note 16 supra.

23 H. Grotius, Dejure Belli ac pacis, bk. II, ch. XVII, pt. 1, at 430 (1646 ed., Carnegie Endowment trans. 1925). Three elements must be present: (1) possible fault on the part of the respondent government, (2) “loss” sustained, and (3) reparation to “make good” the loss. The burden of proof rests on the claimant to show that an international wrong has been committed, and that pecuniary loss has been sustained by reason of the wrongful act. See 1 M. Whiteman, supra note 11, at 430.

24 Verdross, A., Verfassung der Völkerrechtgemeinschaft 164 (1926)Google Scholar. See also Goldschmidt, S., Legal Claims against Germany 64 (1945)Google Scholar.

25 Oliver, , Legal Remedies and Sanctions , in International Law of State Responsibility for Injuries to Aliens 61, 71 (Lillich, R. ed. 1983)Google Scholar.

26 Id. at 61.

27 Eagleton, C., The Responsibility of States in International Law 22–23 (1928)Google Scholar.

28 The issue of war and peace, for example, has often arisen out of differing perceptions of the “wrong” committed, with the concomitant demand for reparation. In the imperfect world of “might is right,” the victorious naturally impose upon the vanquished treaties of “peace,” which often contain a reparation clause.

In view of concern that “reparation” should match the breach of an international obligation, the optional clause to the Statute of the International Court of Justice, Article 36(2), includes among the types of legal disputes covered by the Court’s jurisdiction, disputes on “the nature or extent of the reparation to be made for the breach of an international obligation.”

29 See Draft Articles on State Responsibility, Part I, adopted on first reading by the International Law Commission, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 30–35, UN Doc. A/CN.4/ SER.A/1980/Add.1. For commentary on this article, see Second Report on State Responsibility by Roberto Ago, [1970] 2 id. at 179–97, UN Doc. A/CN.4/SER.A/1970/Add.1. For an analysis of the draft articles and massive exoduses, including the question of the attribution to the state of the conduct of organs or persons, see Hofmann, , Refugee–generating Policies and the Law of State Responsibility , 45 Zaörv 694 (1985)Google Scholar. See also the subsections on “Indirect Responsibility,” “State Responsibility” and “Sanctions” of section V infra.

30 Oliver, supra note 25, at 71.

31 See Constitutions of the Countries of the World passim (Blaustein, A. & Flanz, G. eds.)Google Scholar.

32 See supra note 1.

33 See Lee, L., Consular Law and Practice 201–02 (1961)Google Scholar; Blessin, G., Ehring, H.-G. & Wilden, H., Bundes-Entschädigungsgesetz Kommentar (2d ed. 1957)Google Scholar.

34 N.Y. Times, Mar. 23, 1980, at 5, col. 1.

35 Based on information obtained by the author while a visiting professor at Peking University in September-October 1985.

36 For a discussion of “indirect coercion” and mass expulsion, see note 59 infra.

37 GA Res. 217A, UN Doc. A/810, at 71 (1948).

38 See note 1 supra

39 Id.

40 See text accompanying note 117 infra.

41 See the subsection “Sanctions” of section V infra.

42 See note 136 infra.

43 See the subsection “Sanctions” of section V infra.

44 Trail Smelter (U.S. v. Can.), 3 R. Int’l Arb. Awards 1905 (1938 & 1941). In this case, the question arose as to whether a state may continue an activity that inflicts legally compensable injury. The United States maintained that “so long as fumigations occur in the State of Washington with such frequency, duration and intensity as to cause injury,” the conditions afforded “grounds of complaint on the part of the United States, regardless of the remedial works . . . and regardless of the effect of those works.” Letter of the Minister of the United States of America at Ottawa to the Secretary of State for External Affairs of the Dominion of Canada, Jan. 30, 1934, quoted in id. at 1962–63. The tribunal found that the U.S. position conformed with the general rules of international law and decided that “the Trail Smelter shall be required to refrain from causing any damage through fumes in the State of Washington,” in addition to paying for the actual damages. Id. at 1966.

45 See text at note 37 supra.

46 Article 12 reads:

1. 1.

   1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. 2.

   2. Everyone shall be free to leave any country, including his own.

3. 3.

   3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. 4.

   4. No one shall be arbitrarily deprived of the right to enter his own country.

Annex to GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966).

47 See text at note 37 supra.

48 Council of Europe Agreement No. 46: Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, Sept. 16, 1963.

49 Emphasis added.

50 Wright, , The Strengthening of International Law , 98 Recueil des Cours 1, 182 (1959 III)Google Scholar.

51 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 57 (Advisory Opinion of June 21) (emphasis added).

52 660 UNTS 196.

53 1015 UNTS 244. Under Article I(1), the states parties to this Convention “declare that apartheid is a crime against humanity.”

54 See Art. 1(1), International Convention on the Elimination of All Forms of Racial Discrimination, supra note 52.

55 See the Namibia decision of the International Court of Justice, supra note 51.

56 The two terms have been used interchangeably in state practice. See, e.g., L. Lee, supra note 33, at 168.

57 In both the Universal Declaration of Human Rights, supra note 37, and the 1966 International Covenant on Civil and Political Rights, supra note 46, Article 2 uses the expression “political or other opinion, national or social origin, property, birth or other status.”,

58 Since the United Nations Charter does not spell out all of the contents of human rights, it remains for subsequent instruments, principally the Universal Declaration of Human Rights and the two 1966 International Covenants, that on Civil and Political Rights and that on Economic, Social and Cultural Rights, Annex to GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), to fill in the gaps. For a detailed analysis of the legal status of human rights in the context of the Charter under the Vienna Convention on the Law of Treaties of 1969, see Lee, , The Legal Status of Human Rights Re–Examined, in 1 Population and Development: Hearings Before the House Select Comm. on Population , 59th Cong., 2d Sess. 671, 674–78 (1978)Google Scholar.

59 Such expulsion may result not only from direct physical coercion, but also from “indirect coercion.” The latter may be defined as the deliberate creation of conditions that so violate basic human rights as to leave the people with no choice but to flee from their homelands. See International Institute of Humanitarian Law, Report of the Working Group on Mass Expulsion 4 (San Remo, Apr. 16–18, 1983); Remarks by Luke, T. Lee, Introducing Draft Declaration: Principles of International Law on Mass Expulsion, 78 ASIL Proc. 343 (1984)Google Scholar. See also the report of the UN Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees, UN Doc. A/41/324 (1986), para. 26 of which reads:

60 Art. II, 78 UNTS 277.

61 See text accompanying note 117 and the subsection “Sanctions” of section V infra.

62 See supra note 16.

63 Article 10 of the United Nations Charter reads:

Judge Lauterpacht pointed out that resolutions of the General Assembly are, in general, “in the nature of recommendations and it is in the nature of recommendations that, although on proper occasions they provide a legal authorization for Members determined to act upon them individually or collectively, they do not create a legal obligation to comply with them.” Southwest Africa—Voting Procedure, 1955 ICJ Rep. 67, 115 (Advisory Opinion of June 7) (Lauterpacht, J., sep. op.). Lauterpacht later referred to “recommendations, properly so called, whose legal effect, although not always altogether absent, is more limited and approaching what, when taken in isolation, appears to be no more than a moral obligation.” Id. at 116.

Since the Statute of the UNHCR is but an annex to a General Assembly resolution, it has been argued that it cannot bind states. See Maynard, , The Legal Competence of the United Nations High Commissioner for Refugees , 31 Int’l & Comp. L.Q. 415, 416 (1982)CrossRefGoogle Scholar. See also Sloan, , Binding Force of a “Resolution” of the General Assembly of the United Nations , 25 Brit. Y.B. Int’l L. 1, 31 (1948)Google Scholar; Johnson, , The Effect of Resolutions of the General Assembly of the United Nations , 32 id. at 97 (1955–56)Google Scholar.

64 See UN Charter art. 13(1)(a).

65 See Lee, , The International Law Commission Re-Examined , 59 AJIL 545 (1965)CrossRefGoogle Scholar.

66 Foremost among these may be mentioned the Universal Declaration of Human Rights, supra note 37, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Oct. 24, 1970, GA Res. 2625, 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970).

67 There is considerable authority for the view that, although individual General Assembly resolutions do not have binding legal force on member states, repeated and near unanimous resolutions may achieve the effect of such binding force through the acceleration of the custom-generating process or through the doctrine of estoppel. From the vast literature, see, e.g., Judge Tanaka’s dissenting opinion in South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 291–93 (Judgment of July 18); Fitzmaurice, , The Older Generation of International Lawyers and the Question of Human Rights , in Essays in International Law in Honour of D. Antonio de Luna 321 (1968)Google Scholar; Higgins, , The Development of International Law by the Political Organs of the United Nations , 59 ASIL Proc. 116, 117 (1965)Google Scholar; Bin, Cheng, United Nations Resolutions on Outer Space: Instant International Customary Law? , 5 Indian J. Int’l L. 23, 36 (1965)Google Scholar; Partan, D., Population in the United Nations System: Developing the Legal Capacity and Program of U.N. Agencies 23 (1973)Google Scholar; McNair, , The Legality of the Occupation of the Ruhr , 5 Brit. Y.B. Int’l L. 35 (1924)Google Scholar; 1 Schwarzenberger, G., International Law 51–52 (3d ed. 1957)Google Scholar; Humphrey, , Human Rights and World Law (working paper presented at the Abidjan World Conference on World Peace through Law, Aug. 26–31, 1973)Google Scholar; MacGibbon, , Estoppel in International Law , 7 Int’l & Comp. L.Q. 468, 476 n.45 (1958)Google Scholar; Bleicher, , The Legal Significance of Re-Citation of General Assembly Resolutions , 63 AJIL 444, 447 (1969)Google Scholar.

68 3 UN GAOR, pt. 1, C.1 (226th mtg.) at 912 (1948).

69 Id. at 908–09.

70 GA Res. 36/148, para. 3 (Dec. 16, 1981).

71 GA Res. 194 (III), para. 11, supra note 15.

72 See L. Lee, supra note 33, at 201–02.

73 See Article V of Principles Concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Committee in 1966:

1. 1.

   1. A refugee shall have the right to receive compensation from the State or the Country which he left or to which he was unable to return.

2. 2.

   2. The compensation referred to in paragraph 1 shall be for such loss as bodily injury, deprivation of personal liberty in denial of human rights, death of dependants of the refugee or of the person whose dependant the refugee was, and destruction of or damage to property and assets, caused by the authorities of the State or Country, public officials or mob violence.

Asian-African Legal Consultative Committee, Report of the Eighth Session Held in Bangkok from 8 to 17 August 1966, at 335 (footnotes omitted).

74 The Charter of the United Nations provides that the staff of the Organization “shall be appointed by the Secretary-General under regulations established by the General Assembly” (Art. 101(1)), and that “[i]n the performance of their duties the Secretary-General and the staff shall not seek or receive instruction from any government or from any other authority external to the Organization” (Art. 100(1)). Furthermore, under Article 17, the General Assembly is given complete control over budgetary matters of the United Nations. Thus, budgetary and other administrative matters of the United Nations, including operational policies and programs, are placed under the authority of the General Assembly and must conform with its resolutions or regulations promulgated pursuant to them. These resolutions dealing with the internal working of the United Nations “have a full ‘legal effect’ in that they are binding upon both the Members and the organs of the Organization.” Johnson, supra note 63, at 121. In addition, except for “specialized agencies” like the ILO, UNESCO, the FAO, WHO, the IMF and the World Bank, which are established by intergovernmental agreements and to which the United Nations may only make “recommendations” for the coordination of their activities (Arts. 57, 63 and 64 of the Charter), such functional UN agencies providing technical, economic or other assistance as the UNDP, the UNHCR and UNICEF are also under the basic authority of the General Assembly. Jenks, , Co–ordination in International Organizations: An Introductory Survey , 28 Brit. Y.B. Int’l L. 29, 43 (1951)Google Scholar. Thus, according to Sloan, supra note 63, at 5, “It is a logical inference, confirmed by practice, that resolutions containing terms of reference and other directives are binding upon the subsidiary organs of the General Assembly established by it under Article 22 of the Charter.”

It suffices to cite the relationship between the General Assembly and one of the subsidiary organs, the UNHCR, as an example. The Statute of the Office of the United Nations High Commissioner for Refugees, supra note 17, begins thus: “The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall. . .” (para. 1). Paragraph 3 of the Statute specifically provides: “The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council.” In addition, the authority of the General Assembly is spelled out in such other matters as the performance of additional activities by the UNHCR (para. 9), appeals to governments for funds (para. 10), the submission of annual reports (para. 11), the election of the High Commissioner (para. 13), regulations for staff employment (para. 15(c)) and budgetary and financial regulations (paras. 20 and 21). Indeed, the UNHCR has complied with many General Assembly resolutions by assuming functions that fall outside the scope, stricto sensu, of the High Commissioner. Such functions include the extension of “good offices” in relation to “uprooted” and “displaced” persons, etc. See, e.g., GA Res. 1388 (XIV) (Nov. 20, 1959); GA Res. 1167 (XII) (Nov. 26, 1957); GA Res. 1959 (XVIII) (Dec. 12, 1963); GA Res. 2598 (XXVII) (Dec. 12, 1972); and GA Res. 3454 (XXX) (Dec. 9, 1975). See also Nagendra Singh, supra note 17, at 35–38.

75 A case in point is that under U.S. law (§116(a) of the Foreign Assistance Act of 1961, 22 U.S.C. §2151n(a)):

The Department of State compiles annual reports under § 116(d) (22 U.S.C. §2151n(d) (1982)) and §502B(b) (22 U.S.C. §2304) of the Foreign Assistance Act of 1961, as amended, on individual country human rights practices to assist Congress in considering legislation in the area of foreign assistance. The most recent compilation is published in Dep’t of State, Country Report on Human Rights Practices for 1985, 99th Cong., 2d Sess. (1986).

76 See infra note 127, Art. 14(2)(b).

77 See text at notes 39–41 supra.

78 UNHCR Statute, supra note 17, para. 1.

79 Id., para. 10.

80 Supra note 1, Art. 35.

81 Supra note 1, Art. II.

82 For the significance of this expression, see text accompanying note 85 infra. Thus, “[i]n exercising international protection on behalf of refugees, the international agency asserts the rights of the refugees.” Weis, , The Office of the United Nations High Commissioner for Refugees and Human Rights , 1 Hum. Rts. J. 243, 249 (1968)Google Scholar.

83 For example, Resolution (1) of the Arrangement Relating to the Legal Status of Russian and Armenian Refugees, signed June 30, 1928, 89 LNTS 55 (in force for Germany, Belgium, Bulgaria, Estonia, Rumania, Kingdom of the Serbs, Croats and Slovenes and Switzerland), provided for the exercise of the following functions by representatives of the High Commissioner:

• (a)

  (a) Certifying the identity and the position of the refugees;

• (b)

  (b) Certifying their family position and civil status, in so far as these are based on documents issued or action taken in the refugees’ country of origin;

• (c)

  (c) Testifying to the regularity, validity, and conformity with the previous law of their country of origin, of documents issued in such country;

• (d)

  (d) Certifying the signature of refugees and copies and translations of documents drawn up in their own language;

• (e)

  (e) Testifying before the authorities of the country to the good character and conduct of the individual refugee, to his previous record, to his professional qualifications and to his University or academic standing;

• (f)

  (f) Recommending the individual refugee to the competent authorities, particularly with a view to his obtaining visas, permits to reside in the country, admission to schools, libraries, etc.

Jennings characterized these functions as “quasi consular.” See Jennings, , Some International Law Aspects of the Refugee Question , 20 Brit. Y.B. Int’l L. 98, 102 (1939)Google Scholar.

84 Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174, 186 (Advisory Opinion of Apr. 11) (emphasis added).

85 Id. at 180.

86 GA Res. 194 (III), supra note 15.

87 A few examples will suffice: the expulsions of Jews from Spain in 1492 and from Bohemia in 1744; the expulsion of Huguenots from France in 1685; the Turkish massacre and expulsion of Armenians in 1915–1916; and the expulsion of over 400,000 Jews from Nazi Germany by 1939. The most recent example is the expulsion of over a million Indochinese, most of whom were of Chinese descent, from Indochina during the last decade. See Lee, supra note 59, at 342.

88 See International Law Commission, Draft Declaration on Rights and Duties of States, Art. 2, [1949] Y.B. Int’l L. Comm’n 287, adopted as Annex to GA Res. 375 (IV), 4 UN GAOR Res. at 67, UN Doc. A/1251 (1949). This norm is implicit in the principle of sovereign equality of states set forth in the Declaration on Principles of International Law concerning Friendly Relations, supra note 66. As Marshall, C.J., said in The Schooner Exchange v. McFaddon:

11 U.S. (7 Cranch) 116, 135 (1812). See also Morgenstern, , The Right of Asylum , 26 Brit. Y.B. Int’l L. 327, 327 (1949)Google Scholar, on the “undisputed rule of international law to the effect that every state has exclusive control over the individuals on its territory.”

89 “A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.” C. Eagleton, note 27 supra, at 80. Such a duty would apply a fortiori to the state itself and is inherent in the principle of sovereign equality of states.

90 3 R. Int’l Arb. Awards at 1965.

91 Id. at 1965–66.

92 It has been pointed out that “to compare the flow of refugees with the flow of, for example, noxious fumes may appear invidious; the basic issue, however, is the responsibility which derives from the fact of control over territory.” See Goodwin–Gill, G., The Refugee in International Law 228 n.49 (1983)Google Scholar. Thus, it has been held that the Trail Smelter rule extends beyond ecological/pollution damage to any damage to other states. Garvey, , Toward a Reformulation of International Refugee Law , 26 Harv. Int’l L.J. 483, 495 (1985)Google Scholar.

For views on the need to balance interests, as opposed to the “strict liability” standard, see Second Report on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law, by Special Rapporteur Robert Q. Quentin–Baxter, in which he stated: “Any tendency to insist that all transboundary harm is wrongful, or automatically compensable in accordance with optimal standards, causes justified alarm and impedes human progress.” [1981] 2 Y.B. Int’l L. Comm’n, pt. 1 at 103, 113, UN Doc. A/CN.4/SER.A/1981/Add.1. Thus, while Principle 21 of the Stockholm Declaration upholds Trail Smelter, Principle 23 qualifies it as follows:

Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, pt. 1, ch. I (UN Pub. Sales No. E.73.II.A.14). See also Read, , The Trail Smelter Dispute , 1 Can. Y.B. Int’l L. 213 (1963)Google Scholar; Goldie, , Liability for Damages and the Progressive Development of International Law , 14 Int’l & Comp. L.Q. 1189 (1965)Google Scholar; Brownlie, I., System of the Law of Nations: State Responsibility (Part I) 49–50 (1983)Google Scholar; Magraw, , Transboundary Harm: The International Law Commission’s Study of “International Liability,” 80 AJIL 305 (1986)Google Scholar.

Regardless of one’s position on strict liability vs. interest balancing, one should not lose sight of the actual ruling in the Trail Smelter case, which is concerned with the “serious consequence” of transboundary harm, and where the “injury is established by clear and convincing evidence.” It would be up to the receiving state to decide initially whether the harmful consequence is indeed “serious” and whether to invoke the procedures set forth in the subsection “Sanctions” in section V infra.

93 Adopted by GA Res. 2312 (XXII), Art. 3(1) (Dec. 14, 1967). See also Nafziger, , The General Admission of Aliens under International Law , 77 AJIL 805, 847 (1983)Google Scholar, where he states that “a state has a qualified duty to admit aliens when they pose no serious danger to its public safety, security, general welfare, or essential institutions.”

94 Message of the President, 1891 Foreign Relations of the United States, at xiii (emphasis added).

95 See UN Charter art. 2(1); Declaration on Principles of International Law concerning Friendly Relations, supra note 66.

96 Jennings, supra note 83, at 112; Lauterpacht, H., Function of Law in the International Community 300–01 (1933)Google Scholar.

97 Fischer, Williams, Denationalization , 8 Brit. Y.B. Int’l L. 45, 61 (1927)Google Scholar.

98 11 Institut de Droit International, Annuaire 278–79, Art. XI (1891). See also Règies Internationales sur l’Admission et 1’Expulsion des Etrangers, adopted by the Institut on Sept. 12, 1892, 12 Annuaire at 219 (1892).

99 de Vattel, E., Le Droit des gens, Préliminaires, para. 1 (1758)Google Scholar; Plender, R., International Migration Law 4 (1972)Google Scholar.

100 L. Lee, supra note 33, passim.

101 (Estonia v. Lithuania), 1939 PCIJ, ser. A/B, No. 76, at 16 (Judgment of Feb. 28). Earlier, the Court ruled in the Mavrommatis Palestine Concessions (Greece v. UK) case:

1924 PCIJ, ser. A, No. 2, at 12 (Judgment of Aug. 30).

102 Nottebohm Case (Liechtenstein v. Guat.), Second Phase, 1955 ICJ Rep. 4, 23 (Judgment of Apr. 6) (emphasis added).

103 1 . Brownlie, Principles of Public International Law 396 (3d ed. 1979).

104 Goodwin–Gill, , The Limits of the Power of Expulsion in Public International Law , 47 Brit. Y.B. Int’l L. 55, 57 (1974–75)Google Scholar. Professor Brownlie observed that deprivation of nationality is normally provided for in municipal law in cases where residence and acts of allegiance have occurred abroad. I. Brownlie, supra note 103, at 404 n.3.

105 See note 1 supra. The same national treatment is also accorded to refugees in rationing (Art. 20), elementary education (Art. 22), etc. Id.

106 Plyler v. Doe, 457 U.S. 202, 215 (1982).

107 See generally Corbin on Contracts §19 (1963); Corbin, , Quasi Contractual Obligation , 21 Yale L.J. 533 (1912)CrossRefGoogle Scholar; Clark on Contracts (4th ed. Throckmorton & Brightman, 1939). Quasi contract may be denned as “an obligation which law creates in absence of agreement; it is invoked by courts where there is unjust enrichment.” Its function is “to raise obligation in law where in fact the parties made no promise, and it is not based on apparent intention of the parties.” Black’s Law Dictionary 1120 (5th ed. 1979).

108 1 Corbin on Contracts, supra note 107, at 47–48.

109 Arts. 55 and 56. For the texts, see text at note 49 supra.

110 See note 105 supra and accompanying text.

111 League of Nations Doc. C.2 M.2 1936 XII, quoted in Jennings, supra note 83, at 113.

112 Jennings, supra note 83, at 113.

113 For text and commentary, see [1979] 2 Y.B. Int’l L. Comm’n, pt. 2 at 94–106, UN Doc. A/CN.4/SER.A/1979/Add.1.

114 Id. at 102.

115 UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969).

116 Lee, supra note 65, at 556; Lauterpacht, , Codification and Development of International Law , 49 AJIL 16, 29 (1955)Google Scholar; Rosenne, , The International Law Commission, 1949–59 , 36 Brit. Y.B. Int’l L. 104, 142–44 (1960)Google Scholar; Brierly, , The Future of Codification , 12 id. at 3 (1931)Google Scholar; Jennings, , Recent Developments in the International Law Commission: Its Relation to the Sources of International Law , 13 Int’l & Comp. L.Q. 385, 386 (1964)Google Scholar; 2 UN GAOR Annex 1 at 178, UN Doc. A/331 (1947).

117 See Draft Articles on State Responsibility, Part I, adopted on first reading by the International Law Commission, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2 at 30, UN Doc. A/CN.4/SER.A/1980/Add.1. For commentary on this article, see [1976] 2 id., pt. 2 at 95–122, UN Doc. A/CN.4/SER.A/1976/Add.1.

118 Although “protest” is generally considered an effort to achieve pacific settlement of disputes, it is not included as one of the means for such settlement under chapter VI of the Charter of the United Nations. Hence, it is treated separately here.

119 1949 ICJ Rep. at 175.

120 Cf. Reisman, , The Regime of Straits and National Security: An Appraisal of International Lawmaking , 74 AJIL 48, 57 (1980)Google Scholar. On the inference of acquiescence from failure to protest, see MacGibbon, , The Scope of Acquiescence in International Law , 31 Brit. Y.B. Int’l L. 143, 172 (1954)Google Scholar; MacGibbon, , Some Observations on the Part of Protest in International Law , 30 id. at 293 (1953)Google Scholar; MacGibbon, , Customary International Law and Acquiescence , 33 id. at 115 (1957)Google Scholar; O’Connell, , Mid–Ocean Archipelagos in International Law , 45 id. at 1, 60–69 (1971)Google Scholar; Wolfke, K., Custom in Present International Law 44–45 (1964)Google Scholar; [1950] 1 Y.B. Int’l L. Comm’n 4–5, UN Doc. A/CN.4/SER.A/1950; Lee, , The Law of the Sea Convention and Third States , 77 AJIL 541, 559–60 (1983)Google Scholar. For the view that “a failure to protest might manifest no acquiescence but a belief that the usage was simply outside the legal realm, belonging to the realm of social courtesy or comity,” see A. D’Amato, The Concept of Custom in International Law 107–08 (1971).

121 S. Goldschmidt, supra note 24, at 47.

122 Message of the President, supra note 94, at xii.

123 Le Temps, Aug. 14, 1922, at 2, quoted in Janowsky, O. & Fagen, M., International Aspects of German Racial Policies 54 (1937)Google Scholar.

124 De, Zayas, International Law and Mass Population Transfers , 16 Harv. Int’l L.J. 207, 243 (1975)Google Scholar. Nevertheless, the Federal Republic of Germany after the war undertook to compensate Jewish refugees for their loss of property and for the various indignities they suffered. See L. Lee, supra note 33, at 201–02; G. Blessin, H.-G. Ehring & H. Wilden, supra note 33.

125 Keesing’s Contemporary Archives, July 3–10, 1971, at 24,685. The number of refugees subsequently rose to 9,899,305. See statement of R. K. Khadilkar, the Indian Minister of Labor and Rehabilitation, on Dec. 30, 1971, id., Feb. 19–26, 1972, at 25,112.

126 Mckenna, J., Diplomatic Protest in Foreign Policy 16 (1962)Google Scholar.

127 Fifth Report on State Responsibility, UN Doc. A/CN.4/380 and Corr.1 (1984).

128 In view of the specific role assigned to the International Court of Justice in Article 36(3) of this chapter, the term “judicial settlement” here should be interpreted as excluding resort to that Court in this initial phase of seeking a solution.

129 UN Charter art. 33(1).

130 Art. 36(2)–(6) of the Statute of the International Court of Justice.

131 Id., Art. 36(1).

132 Id., Art. 36(2)(d).

133 Fifth Report on State Responsibility, supra note 127, Art. 10.

134 Id., Art. 9(1).

135 Id., Art. 9(2).

136 Id., Art. 5(e).

137 Id., Art. 14(3).

138 Hofmann, supra note 29, at 711.

139 Fifth Report on State Responsibility, supra note 127, Art. 14(4).

140 The UN Relief and Works Agency for Palestine Refugees in the Near East was established pursuant to General Assembly Resolution 302 (IV) of Dec. 8, 1949. Unlike the UNHCR, which provides both assistance and protection to refugees worldwide other than those in Palestine, the UNRWA provides only assistance to Palestinian refugees, mostly in such areas as health, nutrition, education and housing. See, e.g., Report of the Commissioner–General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 37 UN GAOR Supp. (No. 13), UN Doc. A/37/13 (1982).

141 See supra note 85 and accompanying text.

142 See text accompanying note 15 supra.

143 For the proposed establishment of a UNHCR Fund for Durable Solutions, see Executive Committee of the High Commissioner’s Programme, UN Doc. A/AC96/569 (1979).

144 Note on the Establishment of a Fund for Durable Solutions, Executive Committee of the High Commissioner’s Programme, UN Doc. A/AC.96/583 (1980); Garvey, supra note 92, at 498–99.

145 See text at notes 88–98 supra.

146 See text at note 33 supra.

147 The cases of the “Lucky Dragon” and the “lost bomb” in Spain may be cited. In the former, the Japanese tuna trawler Fukuryu Maru was, on Mar. 14, 1954, at a distance of about 80 miles off Bikini when the radioactive fallout of the Mar. 1 explosion by the United States blanketed it. All 23 crew members suffered from exposure to radiation requiring hospitalization and one of them died subsequently. In addition to human injuries, over four thousand pounds of the trawler’s tuna catch was ordered buried by the Japanese sanitary authorities. Some export industries connected with fish meat products were also affected by the increasing number of radioactive fish caught. The U.S. Government subsequently tendered to the Japanese Government ex gratia and “without reference to the question of legal liability, the sum of two million dollars for purposes of compensation for the injuries or damages sustained” by Japanese nationals as a result of the thermonuclear tests. See Note Regarding Bikini Claims, 32 Dep’t St. Bull. 90–91 (1955).

In the “lost bomb” case, a collision in January 1966 between a B-52 jet bomber and a KC-135 refueling tanker, both belonging to the United States, resulted in the fall on Palomares, Spain, of three of the H-bombs and flaming debris. The TNT charges in two of the bombs exploded on impact, scattering uranium and plutonium particles and dust, while the third bomb remained intact and a fourth was found 2,500 feet below sea level, 5 miles offshore. In decontaminating Palomares, the U.S. Air Force had to destroy some crops, impound others, and bury some 1,750 tons of mildly radioactive soil elsewhere. Hundreds of acres of fields were closed to harvesting and cultivation for nearly 2 months, business came to a standstill in Palomares and nearby fishing villages, and traces of contamination were found among those working around the bomb wreckage. While secrecy prevailed over the number and types of claims presented, the amounts actually paid and the formula applied in determining compensation, a rough guess was that more than $200,000 was paid under the provisions of the Foreign Claims Settlement Act. See Lee, , The Legality of Nuclear Tests and Weapons , 18 Österreichische Zeitschrift für öffentliches Recht 307, 312–13 (1968)Google Scholar.

148 Signed July 29, 1960, OEEC Doc. C (60) 93 (Final Text), Art. 3, reprinted in 55 AJIL 1082(1961).

149 Signed May 25, 1962, reprinted in 57 AJIL 268 (1963), Art. 2.

150 Signed May 21, 1963, International Atomic Energy Agency, Official Records 497–514, Arts. 2 and 4 (Legal Series No. 2, 1964).

151 Signed Mar. 29, 1972, 24 UST 2389, TIAS No. 7762, 610 UNTS 187, Art. II.

152 40 UN GAOR Special Political Comm. (10th mtg.) at 11–12, UN Doc. A/SPC/40/SR. 10 (1985).

153 See supra note 127.

154 See Statement of Special Rapporteur Riphagen, [1984] 1 Y.B. Int’l L. Comm’n 317, UN Doc. A/CN.4/SER.A/1984. See also Hofmann, supra note 29, at 709.

155 Lee, , The UN Group of Governmental Experts on International Co–operation to Avert New Flows of Refugees , 78 AJIL 480 (1984)Google Scholar.

156 This future-oriented approach is in line with that adopted by the UN Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees. Id. at 483.

157 “An international agency can by its nature employ only amicable means [to protect refugees]. It is essentially a moral authority whose methods must be persuasive rather than coercive.” Weis, supra note 82, at 249.

So long as the objective of the UNHCR remains “humanitarian” and “entirely non–political,” and so long as its means remain “amicable” and “persuasive,” an organ other than the UNHCR must be found and entrusted with the mandate of fulfilling the right of refugees and countries of asylum to compensation. In this regard, note should be taken of a proposed designation of a “special representative for international co–operation to avert new massive flows of refugees” by the Secretary-General during the discussion of the UN Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees. UN Doc. A/AC.213/1985/ WP.5, ch. V-B-g(1985).