¹ The facts of this dispute and the arguments of the parties are derived from unpublished material to which the writer was kindly given access by the Department of External Affairs of the Government of Canada and the Ministry of Justice of the Province of Quebec.

² Compania Naviera Vascongado v. Cristina S.S., [1938] A.C. 485. See the recent approval of this case in the Privy Council decision, on appeal from the judgment of the Full Court of the Supreme Court of Hong Kong, in Owners of the Ship Philippine Admiral v. Wallem Shipping (Hong Kong) and Others, [1976] 1 All E.R. 78, which raises the question of the restrictive theory of sovereign immunity where a government-owned ship is used for private service. The United Kingdom Court of Appeal in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, [1977] 2 W.L.R. 356, extends the restrictive doctrine of immunity, which was upheld in an action in rem in the Philippine Admiral, to actions in personam. This position is consistent with the European Convention on State Immunity, (1972) 11 Int. Leg. Mat. 470, which although not ratified as yet by the United Kingdom has recently come into force; (1977) 16 Int. Leg. Mat. 765. The Supreme Court of the United States has held in Alfred Dunhill of London Inc. v. Republic of Cuba (1976), 96 S. Ct. 1854, that the doctrine of restrictive immunity is the official policy of the United States. The Foreign Sovereign Immunities Act, 1976, 28 U.S.C. Supp. (1977), ss. 1602 et seq., 90 Stat. 2892, defines the jurisdiction of the United States courts in suits against foreign states, the circumstances in which foreign states are immune from suit, and the circumstances in which execution may not be levied on their property.

³ The letters are reproduced in an appendix to Williams, S. A., The Polish Art Treasures in Canada: Legal Problems and Political Realities 153–54 (unpublished LL.M. thesis, Osgoode Hall Law School, 1974).Google Scholar

⁴ (1969) 8 Int. Leg. Mat. 679–768. The Convention, of course, was not in existence at the time of the controversy, but is relied upon here as it codifies existing customary international law.

⁵ Yearbook of the I.L.C. 1966, Vol. II, at 188.

⁶ Starke, J. G., Introduction to International Law 397 et seq. (7th ed., 1972).Google Scholar

⁷ Montevideo Convention 1933 (165 L.N.T.S. 19) Art. 19.

⁸ Gotliebj, A. E. Canadian Treaty-Making 5 (1968).Google Scholar

⁹ McNair, A. D., The Law of Treaties 6–7 (1961).Google Scholar

¹⁰ Vavasseur v. Krupp (1878), 9 Ch. 351.

¹¹ See The Cristina, supra note 2, per Lord Maugham, at 515–16; Dicey, The Conflict of Laws (6th ed., 1949) 134; Halsbury’s Laws of England (1952) Vol. 1, Section 32 note (i).

¹² The Cristina, supra note 11, idem; see also The Philippine Admiral, supra note 2.

¹³ See The Jupiter (No. 3), [1927] P. 122 per Hill, J. at 137–38, affd, [1927] P. 250, and Bank of Ethiopia v. National Bank of Egypt and Liguori, [1937] Ch. 513.

¹⁴ See Luther v. Sagor, [1921] 3 K.B. 532, at 555, per Scrutton, L.J.

¹⁵ Eagleton, , Responsibility of States 79 (1928)Google Scholar; Hackworth, , Digest of International Law (1940–44), Vol. 5, 525.Google Scholar

¹⁶ Neer Claim (1926), IV U.N.R.I.A.A. 6o, at 61–62.

¹⁷ Robert E. Brown’s Claim (1923), VI U.N.R.I.A.A. 129.

¹⁸ (1928), P.G.I.J. Ser. A, No. 17, at 29.

¹⁹ (1949), I.C.J. Rep. 4, at 22.

²⁰ von Glahn, G., Law among Nations 228 et seq. (3rd ed., 1976).Google Scholar

²¹ The Cristina, supra note 2, at 490, per Lord Atkin.

²² Vavasseur v. Krupp, supra note 10.

²³ Report of the Committee of Experts for the Progressive Codification of International Law to the Council of the League of Nations; Hackworth, op. cit., supra note 15, at 595. See also Draft Articles on State Responsibility, Art. 6, International Law Commission, Report on the Work of Its Twenty-Fifth Session (1973), Doc. A/9010, at 84 et seq.

²⁴ (1932), P.C.I.J. Ser. A/B, No. 46 at 167.

²⁵ [1930] 2 D.L.R. 297 (Que.).

²⁰ Hackworth, op. cit. supra note 15, at 561–63.

²⁷ Only the right or title to property of a foreign state may be questioned in the courts of another state. Once that right or title is established the sovereign’s immunity prevails. See The Schooner Exchange v. McFaddon (1812), 7 Cranch 116, and Bishop, “Immunity from Taxation of Foreign State-Owned Property”(1953), 46 Am. J. Int’l L. 239.

²⁸ A case in point which answers this problem positively is that of the Prado collection. Almost at the end of the Civil War in Spain, the Republican government put its famous Madrid collection from the El Prado Museum under the protection of the League of Nations. When the Civil War ended with the victory of General Franco, the Secretary General of the League of Nations transferred immediately to him the Madrid collection, although the Republican government was the depositor, considering, according to the established principle, that the change in the system of the state does not change its identity as a subject of the law of nations. Constructively, the same situation occurred in the Polish case. One government evacuated the collection, and another requested its return.

²⁹ (1956), 249 U.N.T.S. 240.

³⁰ Art. 30 of the Convention. On the Hague Convention generally see Noble-court, Protection of Cultural Property in the Event of Armed Conflict 15 (1958).

³¹ Art. 32 of the Convention. U.N.E.S.C.O. Doc. CL/2438, at 15-19 (June 24, 1975). Canada has not acceded to the Convention or the Protocol although she has considered doing so on several occasions. In 1972 and 1973 consultations took place with the provinces and territories and the federal departments interested, primarily the Department of External Affairs, National Defence, and the Department of Indian and Northern Affairs. Although little opposition has been expressed to accession, the major factors causing postponement lie in the concern about resulting budgetary expenses, the lack of administrative structures called for under the Convention, and the need for further interdisciplinary federal-provincial consultations.

³² Emphasis added.

³³ See the Vienna Convention on the Law of Treaties, supra note 4, Art. 12.