1 Report of the International Law Commission on the Work of its Thirty-sixth Session, 39 UN GAOR Supp. (No. 10), UN Doc. A/39/10 (1984) [hereinafter referred to as 1984 Report].

2 McCaffrey, Current Developments Note, 78 AJIL 457, 472-75 (1984).

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

4 1984 Report, supra note 1, at 19.

5 UN Doc. A/CN.4/368 (Apr. 13, 1983).

6 The offenses covered in the 1954 draft fall into-three broad categories: offenses against the sovereignty and territorial integrity of the state, crimes against humanity and offenses violating the laws and customs of war.

7 1984 Report, supra note 1, at 30.

8 See, e.g., Int’l Herald Trib., July 6, 1984, at 1; id., July 7-8, 1984, at 1; id., July 9, 1984, at 2; id., July 10, 1984, at 2; id., July 11, 1984, at 2; id., July 12, 1984, at 2; and id., July 14-15, 1984, at 2. On these events, see also Higgins, Editorial Comment, supra at p. 641.

9 See, e.g., id., July 17, 1984, at 2; id., July 18, 1984, at 2; id., July 21-22, 1984, at 2; id., July 23, 1984, at 1; and id., July 24, 1984, at 1 and 4.

10 Owing to a misperception of the role of the Commission, the 1984 session was marked, from time to time, by the presence of reporters who asked members whether the Commission intended, at that session, to reexamine the regime of diplomatic privileges and immunities under the 1961 Vienna Convention.

11 Article 9 reads:

Nationality of the diplomatic courier

1. The diplomatic courier should in principle be of the nationality of the sending State.

2. The diplomatic courier may not be appointed from among persons having the nationality of the receiving State except with the consent of that State which may be withdrawn at any time.

3. The receiving State may reserve the right provided for in paragraph 2 of this article with regard to:

(a) nationals of the sending State who are permanent residents of the receiving State;

(b) nationals of a third State who are not also nationals of the sending State.

1984 Report, supra note 1, at 99-100.

12 Article 11 reads:

End of the functions of the diplomatic courier

The functions of the diplomatic courier come to an end, inter alia, upon:

(a) notification by the sending State to the receiving State and, where necessary, to the transit State that the functions of the diplomatic courier have been terminated;

(b) notification by the receiving State to the sending State that, in accordance with article 12, it refuses to recognize the person concerned as a diplomatic courier.

Id. at 100.

13 Article 12 reads:

The diplomatic courier declared persona non grata or not acceptable

1. The receiving State may at any time and without having to explain its decision notify the sending State that the diplomatic courier is persona non grata or not acceptable. In any such case, the sending State shall, as appropriate, either recall the diplomatic courier or terminate his functions to be performed in the receiving State. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

[2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a diplomatic courier.]

Id. The second paragraph of Article 12 was placed in brackets to indicate that the Commission would revisit it after considering draft Article 28 on the duration of the courier’s privileges and immunities.

14 Article 14 reads:

Entry into the territory of the receiving State or the transit State

1. The receiving State or, as the case may be, the transit State shall permit the diplomatic courier to enter its territory in the performance of his functions.

2. Visas, where required, shall be granted by the receiving State or the transit State to the diplomatic courier as promptly as possible.

Id. at 101.

15 Article 15 reads:

Freedom of movement

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State or, as the case may be, the transit State shall ensure to the diplomatic courier such freedom of movement and travel in its territory as is necessary for the performance of his functions.

16 Article 20 reads:

Exemption from dues and taxes

The diplomatic courier shall, in the performance of his functions, be exempt in the receiving State or, as the case may be, in the transit State from all those dues and taxes, national, regional or municipal, for which he might otherwise be liable, except for indirect taxes of a kind which are normally incorporated in the price of goods or services and charges levied for specific services rendered.

Id. at 102.

17 Article 10, Functions of the diplomatic courier, reads: “The functions of the diplomatic courier consist in taking custody of, transporting and delivering at its destination the diplomatic bag entrusted to him.” Id. at 100.

18 Article 13 reads:

Facilities

1. The receiving State or, as the case may be, the transit State shall accord to the diplomatic courier the facilities necessary for the performance of his functions.

2. The receiving State or, as the case may be, the transit State shall, upon request and to the extent practicable, assist the diplomatic courier in obtaining temporary accommodation and in establishing contact through the telecommunications network with the sending State and its missions, consular posts or delegations, wherever situated.

Id. at 101.

19 Article 16, Personal protection and inviolability, reads: “The diplomatic courier shall be protected by the receiving State or, as the case may be, by the transit State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.” Id.

20 Article 17 reads:

Inviolability of temporary accommodation

1. The temporary accommodation of the diplomatic courier shall be inviolable. The agents of the receiving State or, as the case may be, of the transit State, may not enter the temporary accommodation, except with the consent of the diplomatic courier. Such consent may, however, be assumed in case of fire or other disaster requiring prompt protective action.

2. The diplomatic courier shall, to the extent practicable, inform the authorities of the receiving State or the transit State of the location of his temporary accommodation.

3. The temporary accommodation of the diplomatic courier shall not be subject to inspection or search, unless there are serious grounds for believing that there are in it articles the possession, import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State or the transit State. Such inspection or search shall be conducted only in the presence of the diplomatic courier and on condition that the inspection or search be effected without infringing the inviolability of the person of the diplomatic courier or the inviolability of the diplomatic bag carried by him and will not cause unreasonable delays or impediments to the delivery of the diplomatic bag.

Id. at 101-02.

21 Article 19 reads:

Exemption from personal examination, customs duties and inspection

1. The diplomatic courier shall be exempt from personal examination.

2. 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 entry of articles for the personal use of the diplomatic courier imported in his personal baggage and shall grant exemption from all customs duties, taxes and related charges on such articles other than charges levied for specific services rendered.

3. The personal baggage of the diplomatic courier shall be exempt from inspection, unless there are serious grounds for believing that it contains articles not for the personal use of the diplomatic courier or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State or, as the case may be, of the transit State. Such inspection shall be conducted only in the presence of the diplomatic courier.

Id. at 102.

22 Article 13 reads:

Contracts of employment

1. Unless otherwise agreed between the States concerned, the immunity of a State cannot be invoked before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for services performed or to be performed, in whole or in part, in the territory of that other State, if the employee has been recruited in that other State and is covered by the social security provisions which may be in force in that other State.

2. Paragraph 1 does not apply if:

(a) the employee has been recruited to perform services associated with the exercise of governmental authority;

(b) the proceeding relates to the recruitment, renewal of employment or reinstatement of an individual;

(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;

(d) the employee is a national of the employer State at the time the proceeding is instituted;

(e) the employee and the employer State have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.

Id. at 146.

23 Article 14 reads:

Personal injuries and damage to property

Unless otherwise agreed between the States concerned, a State cannot invoke immunity from the jurisdiction of the courts of another State in respect of proceedings which relate to compensation for death or injury to the person or damage to or loss of tangible property if the act or omission which is alleged to be attributable to the State and which caused the death, injury or damage occurred wholly or partly in the territory of the State of the forum, and if the author of the act or omission was present in that territory at the time of the act or omission.

Id.

24 See §1605(a)(5) of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602-1611 (1976).

25 That this is indeed a possibility is demonstrated by the Letelier and Siderman cases. See Letelier v. Republic of Chile, 748 F.2d 790 (2d Cir. 1984), rev’g 567 F.Supp. 1490 (S.D.N.Y. 1983); Letelier v. Republic of Chile, 502 F.Supp. 259 (D.D.C. 1980) (granting a default judgment against the Republic of Chile and awarding plaintiff over $5 million in damages, including interest, compensatory and punitive damages, counsel fees and out-of-pocket expenses); and Siderman v. Republic of Argentina, No. CV 82-1772-RMT (MCx) (CD. Cal. Sept. 28, 1984) (granting a default judgment and damages for pain and suffering and emotional distress, physical injuries, loss of earnings, medical expenses, and moral damages, for a total award of over $2.5 million, as well as $100,000 for loss of consortium), vacated and dismissed on grounds of sovereign immunity (CD. Cal. Mar. 7, 1985).

26 Article 16 reads:

Patents, trade marks and intellectual or industrial property

Unless otherwise agreed between the States concerned, the immunity of a State cannot be invoked before a court of another State which is otherwise competent in a proceeding which relates to:

(a) the determination of any right of the State in a patent, industrial design, trade name or business name, trade mark, copyright or any other similar form of intellectual or industrial property, which enjoys a measure of legal protection, even if provisional, in the State of the forum; or

(b) an alleged infringement by the State in the territory of the State of the forum of a right mentioned in subparagraph (a) above which belongs to a third person and is protected in the State of the forum.

1984 Report, supra note 1, at 148.

27 Article 17 reads:

Fiscal matters

Unless otherwise agreed between the States concerned, the immunity of a State cannot be invoked before a court of another State in a proceeding relating to the fiscal obligations for which it may be liable under the law of the State of the forum, such as duties, taxes or other similar charges.

Id.

28 Article 18 reads:

Participation in companies or other collective bodies

1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from the jurisdiction of a court of another State in a proceeding relating to its participation in a company or other collective body, whether incorporated or unincorporated, being a proceeding concerning the relationship between the State and the body or the other participants therein, provided that the body:

(a) has participants other than States or international organizations; and

(b) is incorporated or constituted under the law of the State of the forum or is controlled from or has its principal place of business in that State.

2. Paragraph 1 does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body in question.

Id.

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

30 European Convention on State Immunity, 1972 ETS 74.

31 1984 Report, supra note 1, at 183.

32 The Bhopal disaster will doubtless provide grist for future discussions of this issue.

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

34 1984 Report, supra note 1, at 213.

35 It is also found in the former Article 5 adopted by the Commission in 1980, which is reproduced in id. at 200.

36 The Commission also authorized the Drafting Committee to draw upon the texts provisionally adopted at the 1980 session as well as Articles 1-9 of the special rapporteur’s 1983 draft. Id. at 208 n.264.

37 Article 5 reads:

For the purposes of the present articles “injured State” means:

(a) if the internationally wrongful act constitutes an infringement of a right appertaining to a State by virtue of a customary rule of international law or of a right arising from a treaty provision for a third State, the State whose right has been infringed;

(b) if the internationally wrongful act constitutes the breach of an obligation imposed by a judgement or other binding dispute settlement decision of an international court or tribunal, the other State party or States parties to the dispute;

(c) if the internationally wrongful act constitutes a breach of an obligation imposed by a bilateral treaty, the other State party to the treaty;

(d) if the internationally wrongful act constitutes a breach of an obligation imposed by a multilateral treaty, a State party to that treaty, if it is established that:

(i) the obligation was stipulated in its favour, or

(ii) the breach of the obligation by one State party necessarily affects the exercise of the rights or the performance of the obligations of all other States parties, or

(iii) the obligation was stipulated for the protection of collective interests of the States parties, or

(iv) the obligation was stipulated for the protection of individual persons, irrespective of their nationality;

(e) if the internationally wrongful act constitutes an international crime, all other States.

Id. at 237 n.299.

38 Some members believed that a separate chapter should be devoted to the consequences of international crimes since they constituted a “self-contained regime.”