1 Report of the International Law Commission on the Work of its Thirty–fifth Session, 38 UN GAOR Supp. (No. 10), UN Doc. A/38/10 (1983) [hereinafter referred to as 1983 Report],

2 McCaffrey, , Current Developments Note, 77 AJIL 323, 331–36 (1983)Google Scholar.

3 UN Doc. A/CN.4/366 and Add.1 and Add.1/Corr.1 (1983).

4 Part 3, as currently envisioned, will deal with the “implementation” (mise en oeuvre) of international responsibility and the settlement of disputes.

5 The term “international crimes” is used in Article 19 of part 1 (entitled “International crimes and international delicts”) and hence in the special rapporteur’s reports. However, like some other members of the Commission, this writer has doubts about the accuracy and appropriateness of the term when it is used with reference to states, as opposed to individuals. Indeed, in his commentary to Article 19, Professor Roberto Ago (now a judge of the International Court of Justice), the former special rapporteur, said that the term was used only because of the “poverty of language.” Although it does appear correct that there is, in effect, a more serious degree of state responsibility for particularly grave breaches of international law, the use of the term “international crime” in reference to acts of states unnecessarily politicizes an already sensitive area and confuses the law concerning the responsibility of states with that concerning the responsibility of individuals. This point will also be touched upon below in relation to the draft code.

6 For a discussion of the terms “primary” and “secondary” rules, see the report on the Commission’s 1982 session, supra note 2, at 331–32.

7 Article 1 provides: “The international responsibility of a State which, pursuant to the provisions of Part One, arises from an internationally wrongful act committed by that State, entails legal consequences set out in the present Part.” 1983 Report, supra note 1, at 90.

8 Article 2 provides:

Without prejudice to the provisions of article [4] and 5, the provisions of this Part govern the legal consequences of any internationally wrongful act of a State, except where and to the extent that those legal consequences have been determined by other rules of international law relating specifically to the internationally wrongful act in question.

Id. at 91.

9 Article 3 provides: “Without prejudice to the provisions of articles [4] and 5, the rules of customary international law shall continue to govern the legal consequences of an internationally wrongful act of a State not set out in the provisions of the present Part.” Id. at 92.

10 Article 5 provides: “The legal consequences of an internationally wrongful act of a State set out in the provisions of the present Part are subject, as appropriate, to the provisions and procedures of the Charter of the United Nations relating to the maintenance of international peace and security.” Id. at 93.

11 UN Doc. A/CN.4/363 and Corr.1 and Add.1 and Add.1/Corr.1 (1983).

12 Article 13 as proposed by the special rapporteur provides:

1. Unless otherwise agreed, a State is not immune from the jurisdiction of the courts of another State in respect of proceedings relating to a “contract of employment” of a national or resident of that other State for work to be performed there.

2. Paragraph 1 does not apply if:

(a) the proceedings relate to failure to employ an individual or dismissal of an employee;

(b) the employee is a national of the employing State at the time the proceedings are brought;

(c) the employee was neither a national nor a resident of the State of the forum at the time of employment; or

(d) the employee has otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.

1983 Report, supra note 1, at 33 n.47.

13 Article 14 as proposed by the special rapporteur provides:

Unless otherwise agreed, a State is not immune from the jurisdiction of the courts of another State in respect of proceedings relating to injury to the person or death or damage to or loss of tangible property, if the act or omission which caused the injury or damage in the State of the forum occurred in that territory, and the author of the injury or damage was present therein at the time of its occurrence.

Id. at 35 n.48.

14 Article 15 is set forth in the text at note 32 infra.

15 1983 Report, supra note 1, at 45.

16 Id. at 49.

17 Id. at 52.

18 For the text and a brief discussion of the article as originally proposed by the special rapporteur, see the Note on the 1982 session, supra note 2, at 330.

19 Section 1605(a)(2) of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611 (1976).

20 State Immunity Act 1978, ch. 33, reprinted in 17 ILM 1123 (1978).

21 European Convention on State Immunity, 1972 ETS 74.

22 Thus, in one place, the commentary states: “The Commission . . . is now able provisionally to adopt a formula, which could in due course be revised and improved so as to take more fully into account the interests and views of all countries with different systems and practices.” 1983 Report, supra note 1, at 52–53.

23 Cf. Article 4 of the 1972 European Convention on State Immunity, supra note 21, which also uses the term “contract.”

24 See the UK State Immunity Act, supra note 20, §3(3).

25 1983 Report, supra note 1, at 75.

26 Id. at 53.

27 See the Foreign Sovereign Immunities Act, supra note 19, §1605(a)(2).

28 See, e.g., the UK State Immunity Act, supra note 20, §3(l)(b); and the European Convention on State Immunity, supra note 21, Art. 4(1).

29 1983 Report, supra note 1, at 76.

30 Foreign Sovereign Immunities Act, supra note 19, § 1603(d), 2d sentence.

31 1983 Report, supra note 1, at 77.

32 Id. at 78.

33 Note 19 supra.

34 Note 20 supra.

35 Note 21 supra.

36 This is not to suggest, of course, that the entire proceeding would be governed by the lex fori or that, in the case of immovable property, the forum rei sitae would not be free to ignore the determination of the probate court.

37 These articles are set forth in notes 12 and 13 supra.

38 See the UK State Immunity Act, supra note 20, §4.

39 See the European Convention on State Immunity, supra note 21, Art. 5.

40 See section-by-section analysis under § 1603(d) in H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976).

41 UN Doc. A/CN.4/363, supra note 11, at 16.

42 Done April 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95.

43 Done April 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261.

44 FSIA, supra note 19, § 1605(a)(5).

45 UK Act, supra note 20, §5.

46 European Convention, supra note 21, Art. 11.

47 The Diplomatic Relations Act of 1978, 22 U.S.C. §245e, 22 C.F.R. pt. 15, requires that diplomats and diplomatic missions carry liability insurance covering operations of a vehicle, vessel or aircraft. 28 U.S.C. §1364 bars the insurer from asserting the immunity of the insured as a defense and provides for a direct action against insurers of diplomats possessing immunity. For recent developments on this matter, see Contemporary Practice, supra at p. 435.

48 UN Doc. A/CN.4/374 and Corr.1 (English only), Add.1 and Corr.1 (English only), Add.2 and Corr.1 (English only), Add.3 and Corr.1 (English only), and Add.4 and Corrs.1 (English only) and 2 (1983).

49 1983 Report, supra note 1, at 120.

50 Id. at 121.

51 The remainder of Article 3 provides:

(2) “diplomatic bag” means the packages containing official correspondence, documents or articles intended exclusively for official use, whether accompanied by diplomatic courier or not, which are used for the official communications referred to in article 1 and which bear visible external marks of their character as:

(a) a diplomatic bag within the meaning of the Vienna Convention on Diplomatic Relations of 18 April 1961;

(b) a consular bag within the meaning of the Vienna Convention on Consular Relations of 24 April 1963;

(c) a bag of a special mission within the meaning of the Convention on Special Missions of 8 December 1969; or

(d) a bag of a permanent mission, of a permanent observer mission, of a delegation or of an observer delegation within the meaning of the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 14 March 1975;

(3) “sending State” means a State dispatching a diplomatic bag to or from its missions, consular posts, or delegations;

(4) “receiving State” means a State having on its territory missions, consular posts or delegations of the sending State which receive or dispatch a diplomatic bag;

(5) “transit State” means a State through whose territory a diplomatic courier or a diplomatic bag passes in transit;

(6) “mission” means:

(a) a permanent diplomatic mission within the meaning of the Vienna Convention on Diplomatic Relations of 18 April 1961;

(b) a special mission within the meaning of the Convention on Special Missions of 8 December 1969; and

(c) a permanent mission or a permanent observer mission within the meaning of the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 14 March 1975;

(7) “consular post” means a consulate–general, consulate, vice–consulate or consular agency within the meaning of the Vienna Convention on Consular Relations of 24 April 1963;

(8) “delegation” means a delegation or an observer delegation within the meaning of the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 14 March 1975;

(9) “international organization” means an intergovernmental organization.

2. The provisions of paragraph 1 of the present article 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 the internal law of any State.

Id. at 122–24.

52 For example, the Convention on Special Missions, adopted by the UN General Assembly on Dec. 8, 1969, is not even in force at present. When and if it does come into force (it currently has 21 out of the necessary 22 ratifications), it still will not enjoy nearly the same degree of acceptance as the Vienna Conventions on Diplomatic and Consular Relations, supra notes 42 and 43, respectively. Furthermore, the standards of protection under the relevant instruments vary for the different types of couriers and bags because the balance between the sending state’s need for secrecy and the receiving and transit states’ interests in security is struck differently from case to case.

53 1983 Report, supra note 1, at 121.

54 Id.

55 Article 4

Freedom of official communications

1. The receiving State shall permit and protect the official communications of the sending State, effected through the diplomatic courier or the diplomatic bag, as referred to in article 1.

2. The transit State shall accord to the official communications of the sending State, effected through the diplomatic courier or the diplomatic bag, the same freedom and protection as is accorded by the receiving State.

Article 5

Duty to respect the laws and regulations of the receiving State and the transit State

1. The sending State shall ensure that the privileges and immunities accorded to its diplomatic courier and diplomatic bag are not used in a manner incompatible with the object and purpose of the present articles.

2. Without prejudice to the privileges and immunities accorded to him, it is the duty of the diplomatic courier to respect the laws and regulations of the receiving State or the transit State, as the case may be. He also has the duty not to interfere in the internal affairs of the receiving State or the transit State, as the case may be.

Article 6

Non–discrimination and reciprocity

1. In the application of the provisions of the present articles, the receiving State or the transit State shall not discriminate as between States.

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

(a) where the receiving State applies any of the provisions of the present articles restrictively because of a restrictive application of that provision to its diplomatic courier or diplomatic bag by the sending State;

(b) where States modify among themselves, by custom or agreement, the extent of facilities, privileges and immunities for their diplomatic couriers and diplomatic bags, provided that such a modification is not incompatible with the object and purpose of the present articles and does not affect the enjoyment of the rights or the performance of the obligations of third States.

Article 7

Documentation of the diplomatic courier

The diplomatic courier shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag which is accompanied by him.

Article 8

Appointment of the diplomatic courier

Subject to the provisions of articles [9], 10 and 14, the diplomatic courier is freely appointed by the sending State or by its missions, consular posts or delegations.

Id.at 130–37.

56 The texts of Articles 9–14 can be found in id. at 100–01. Their titles are as follows: Article 9, “Appointment of the same person by two or more States as a diplomatic courier”; Article 10, ‘‘ Nationality of the diplomatic courier”; Article 1 1 , “ Functions of the diplomatic courier’’; Article 12, “Commencement of the functions of the diplomatic courier”; Article 13, “End of the functions of the diplomatic courier”; and Article 14, “Persons declared non grata or not acceptable.”

57 The texts of Articles 15–19 can be found in id. at 107–09. Their titles are as follows: Article 15, “General facilities”; Article 16, “Entry into the territory of the receiving State and the transit State”; Article 17, “Freedom of movement”; Article 18, “Freedom of communication”; and Article 19, “Temporary accommodation.”

58 The texts of Articles 20–23 can be found in id. at 112–14. Their titles are as follows: Article 20, “Personal inviolability”; Article 21, “Inviolability of temporary accommodation”; Article 22, “Inviolability of the means of transport”; and Article 23, “Immunity from jurisdiction.”

59 The texts of Articles 24–42 can be found in the fourth report of the special rapporteur, supra note 48, in addenda 2, 3 and 4. They deal with the following areas: privileges and immunities accorded to the diplomatic courier (Articles 24–29); the status of the captain of a commercial aircraft or the master of a merchant ship entrusted with the transportation and delivery of a diplomatic bag (Article 30); the status of the diplomatic bag (Articles 31–39); and miscellaneous provisions (Articles 40–42).

60 1983 Report, supra note 1, at 109.

61 See [1977] 2 Y.B. Int’l L. Comm’n 11–30, UN Doc. A/CN.4/SER.A/1977/Add.1 (pt. 2). This point is noted in the 1983 Report, supra note 1, at 110.

62 See note 58 supra.

63 GA Res. 177 (II), quoted in 1983 Report, supra note 1, at 11.

64 1983 Report, supra note 1, at 13.

65 The 1954 version of the code is reproduced in id. at 13–15.

66 Annex to GA Res. 3314 (XXIX) (1974).

67 GA Res. 36/106 (1981), quoted in 1983 Report, supra note 1, at 17–18.

68 1983 Report, supra note 1, at 21 (emphasis in original).

69 Id. (emphasis in original).

70 Id. at 22 (footnote omitted).

71 Article 19 was quoted in the Note on the 1982 session, supra note 2, at 332 n.24.

72 1983 Report, supra note 1, at 23.

73 Id. at 24–25.

74 Id. at 25.

75 Id. at 27.

76 Id. (emphasis deleted).

77 See 29 UN GAOR Annexes (Agenda Item 86), UN Doc. A/9890, para. 2 (1974), cited in id. at 16 n. 18.

78 1983 Report, supra note 1, at 28.

79 Case Concerning the Barcelona Traction, Light & Power Co., Ltd. (New Application) (Belg. v. Spain), 1970 ICJ Rep. 4, 32, para. 33 (Judgment of Feb. 5).

80 1983 Report, supra note 1, at 26.

81 The Commission did not consider the topic in 1975, pending receipt of replies to a questionnaire it had circulated to governments of UN member states. Id. at 143.

82 These articles and the “note” setting forth the hypothesis are reproduced in id. at 146–47.

83 UN Doc. A/CN.4/367 and Corr.1 (1983).

84 1983 Report, supra note 1, at 156–57.

85 Id. at 157.

86 Id.

87 International Law Association, Report of the Fifty-Second Conference Held at Helsinki, 1966, at 484 (1967).

88 1983 Report, supra note 1, at 158.

89 Id. at 161–62 n.230. Articles 4 and 5 deal with “system agreements” entered into between two or more states to apply the general provisions of the Commission’s articles to the particular needs and circumstances of the international watercourse system in question.

90 See UN Docs. UNEP/IG.12 and UNEP/GC.6/17 (1978).

91 UN Doc. A/CN.4/373 and Corrs.1 and 2 (English only) (1983).

92 The schematic outline is reprinted in the Report of the International Law Commission on the Work of its Thirty-fourth Session, 37 UN GAOR Supp. (No. 10), UN Doc. A/37/10 (1982).

93 1983 Report, supra note 1, at 192.

94 Id. at 196–97.

95 Id. at 196.

96 2 United Nations Conference on the Representation of States in Their Relations with International Organizations, Official Records, Documents of The Conference 207, UN Doc. A/CONF.67/16 (1975).

97 UN Doc. A/CN.4/370 and Corr.1 (1983).

98 The Commission’s 1978 conclusions and recommendations are set forth in paragraph 269 of the 1983 Report, supra note 1, at 186. Those of 1983 are contained in paragraph 277, id. at 187–88.