Jessup

or diplomatic official. The recognition accorded their special status in traditional international law is extended because of their representa- tive character and not because of their status as individuals, although a supplementary claim may lie for the injury to the individual as such. The fact that in the past states have taken advantage of such situations to exact punitive damages from the state inflicting the injury should not cloud the real equity of the state in seeking proper satisfaction for injury to its official. In 1924 Robert Imbrie, a Vice

Consul of the United States in Persia, was murdered by a mob in

Teheran. The United States demanded and Persia accorded expres-

sions of "deepest regret"; Persia paid the cost of $110,000 to have

Imbrie's body transported to the United States on an American war- ship; appropriate honors and salutes were rendered as the body left

Persia. In addition Persia paid an indemnity of $60,000 for the benefit of the widow.66 But in other cases of injuries to consular officers the state has not made a claim on its own behalf, and mixed

claims commissions have made awards solely for the benefit of the individual, recognizing at the same time that the defendant state was

responsible for not extending adequate protection to such officials.67

On the other hand, the assassination of the British Governor General

of the Sudan, Sir Lee Stack, at Cairo in November 1924 resulted in

a British claim for 500,000 as a financial indemnity and also a demand

for an apology and Egyptian evacuation of the Sudan.68 Similarly the death of the German Ambassador in China and the siege of the

Legation Quarter in Pekin during the Boxer Rebellion in 1900 con- tributed to the allied demands for an excessive indemnity and polit- ical concessions.69 The murder of the Italian General Tellini and

members of his suite at Janina in 1923, where they were engaged in the delimitation of the Greco-Albanian frontier, resulted in Italian

demands for an official apology, a formal memorial service, honors to the Italian flag, an inquiry by the Greek authorities within five day capital punishment of the murderers, 50,000,000 lire indemnity

66 i Whiteman, op. cit., supra note 11, p. i36ff.

07 United States on behalf of William E. Chapman v. United Mexican

States, 1930 (1930-1931) General Claims Commission United States and Mexico,

12 1 ; The United Mexican States on behalf of Francisco Malign v. United States

(1927) General Claims Commission United States and Mexico, 254.

68 19 Am. J. Int. L. (1925), 384.

60 5 Moore's Digest of Int. L. (1906), Bees. 809-810.

to be paid within five days, military honors to the victims, and a reply within twenty-four hours. When these demands were not met within the time fixed in the ultimatum, Italian forces bombarded and

occupied the Greek island of Corfu.70

International tribunals have frequently distinguished between a general injury to a state and specific damage. Thus in the case of the

S.S. Wimbledon, the Permanent Court of International Justice acknowledged the legal interest of Great Britain, Italy, and Japan as

parties to the peace treaty granting free passage through the Kiel Canal, to join with France in submitting a case against Germany for the denial of passage to a French ship, but the judgment was for money damages to be paid to the French Government alone for the

losses sustained by the vessel.71 In the Fm Alone arbitration between the United States and Canada, the award, which held that the sink- ing of the Canadian vessel by an American Coast Guard Cutter was

illegal, provided money damages for the losses suffered by the cap-

tain and crew and also called for an apology by the United States to

Canada plus the payment of $25,000 "as a material amend in respect of the wrong." 72 In the Trail Smelter Arbitration between the

United States and Canada, damage from smelter fumes had been suf-

fered by properties located in the United States across the border from the Canadian plant. Some of these properties were owned by private persons and some were United States Government lands. The

Tribunal made an award of $350,000 for the injury to the private property but noted that the United States had explicitly withdrawn any claim for injury to its own lands.73

It should be one of the tasks in the codification of international

law to catalogue the types of direct injuries to states for which the state would be privileged to require another state to pay such indem- nity as might be determined by an international tribunal to be appro- priate to the case. Among these types, in addition to those which have been illustrated by the cases just cited, should be those resulting from direct injury to a state instrumentality engaged in the conduct of commercial and other business activities. The modern practice of

70 i Whiteman, op. cit.9 supra note u, pp. 714-15.

71Case of the S. S. Wimbledon, P.CJ./., Ser. A, No. i ( 1923) .

72"The Tm Alone'9 Dept. of State Arbitration Ser. No. 2 (7), p. 4 (1935).

78Trail Smelter Arbitration between United States and Canada, Dept. of

State Arbitration Ser. No. 8 (1941). Cf. 25 Am /. Int. L. (1931), 540.

states in organizing state corporations for the management of busi- ness affairs such as shipping, railways, state monopolies, and the like has caused confusion in the application of the traditional rules of sovereign immunity in national courts.74 Where state activities are completely socialized as in the Soviet Union, the number of state claims arising from the transactions of such governmental organs is increased, but the principle is the same as that applicable to the

United States Emergency Fleet Corporation operating during and after World War I, or such enterprises as the United States Rubber

Development Corporation in the Amazon Valley during World War

II. On the procedural side it may be found useful to provide special international tribunals to hear such cases if satisfaction is not obtained

in national courts. It seems clear that in the development of these aspects of the law of responsibility a difference should be made between cases of injuries to such officials as diplomats and consuls and those suffered by the managers of state commercial enterprises.

International law will also need to be developed in such a way as to define the rights and duties of international agencies and their offi-

cials and personnel, particularly when a local development project or the mining of uranium by an international authority is involved. It is quite conceivable that, just as the financing of international devel- opment projects is being assumed b'/ the International Bank for

Reconstruction and Development instead of by private bankers or individual state loans, so such projects as that of the building of a railroad in Iran, which was taken as an illustrative case above, might be handled by an international agency.75 Such an agency might let sub-contracts to a private contractor, but might also employ its own personnel and in any case would have direct contractual relations with the Iranian Government. So far, international law has felt the

need to regulate the privileges and immunities of international officials by analogy with the traditional rights of diplomatic officials.

Thf Charter and the Constitutions of the various new United

Nations agencies contain provisions to this effect.76 When such inter-

74 See Harvard Research in International Law, Draft Convention on Com-

petence of Courts in Regard to Foreign States (1932), 597.

75 Finer, "The T.VA.: Lessons for International Application" (1944),

/. L. O., Studies and Reports, ser. B, no. 37.

76 The United Nations Charter only provides for "necessary" privileges and immunities. Charter of the United Nations, Art. 105; compare Statute of the

national agencies take on the administration and performance of

actual engineering and similar projects within states; it will be nec- essary to develop new rules, just as the traditional international law is in course of modification to meet the new situations presented by the activities of the national state as trader, ship-owner, and general business man in the international field.

International Court of Justice, Art. 19. For a full discussion of the problem see

Dept. of State Pub. 2349, Conference Series 71, Report to the President on the

Results of the San Francisco Conference, 1945, 158 et seq.\ see Preuss, "The

International Organizations Immunities Act," 40 Am. J. Int. L. (1946), 332.

CHAPTER VI

THE LAW OF CONTRACTUAL

AGREEMENTS

DIPLOMACY HAS DEVELOPED a large amount of formalistic ritual, much of which is reflected in international law. The titles and ranking of

diplomats are the most striking example. Curiously enough, this tendency is not wholly reflected in the modern law and practice of treaty making. It is of no legal consequence, for example, whether an agreement between or among states is called a treaty, a conven- tion, a statute, an agreement, a protocol, or a covenant or charter.1

Certain labels, such as "modus vivendi" and "exchange of notes," are used with a degree of consistency to signify the informal or tempo- rary character of an agreement, while others, such as "covenant^' and "charter," have been utilized to suggest the basic and overall im- portance of the instrument. The labels do not, however, indicate whether the agreement registers a boundary settlement, the conclu-

sion of a peace, a political and military alliance, or provisions for the extradition of fugitive criminals, arrangements for the distribution of

radio frequencies, adjustment of double taxation, respect for copy- rights, or facilities for traveling salesmen. The applicable substantive law similarly fails to distinguish among such diverse subjects and covers them all with the same rules concerning conclusion, interpre- tation, and termination. Such uniformity is convenient for the stu-

dent, the statesman, and the judge, but in some important respects which will be discussed in this chapter it is not responsive to the

neea"s of the international community.

Agreements between and among states also reveal other important basic differences. To use the analogous terminology of private or national law, some agreements are essentially contracts, as, for exam- ple, agreements for the sale of surplus war supplies, loan agree-

1 "Harvard Research in International Law, Draft Convention on the Law of Treaties," 29 Am. J. Int. L. Supp. (1935), Introductory Comment, 667.

ments, and agreements for the maintenance of national monuments or memorials. In a sense all international agreements are contractual

in that they derive their validity from the agreement of the parties, but Judge Hudson has properly emphasized (as Lord Salisbury suggested in 1 897)2 the ^act that many such agreements are more closely analogous to legislation, despite the nonexistence of any international legislature.8 This is true of many of the great multipartite instruments which are becoming more and more characteristic of the international

legal order, such as those setting up permanent machinery and pro- cedures for managing th& world's affairs in matters of communica- tions, health, morals, and the like. Still other instruments are of a

quasi-constitutional nature, as the Covenant of the League of Nations and the Charter of the United Nations.

The traditional discussions in the books about treaties are usually concerned only with agreements to which states are parties. This is the natural consequence of the accepted doctrine that only states are subjects of international law. The acceptance of the hypothesis that individuals are also subjects of international law necessitates consider- ation here of agreements between states and individuals.4 The rapid development of international organizations with far-flung interests and activities, and with relationships to states and to each other as well as perhaps to individuals, requires consideration as well of all types of agreements concluded by and with such international agen- cies; and in this connection it will be recalled that colonies and other

political dependencies have already been accorded membership in international unions.

It is a common lay error to draw a sharp distinction between treaties and international law in general. Many who are not aware of the operation of the international legal process are wont to assert that "there isn't any international law," but that treaties are something different. Some advocates of world government who maintain that there can be no international law until international government is established proceed, perhaps subconsciously, to suggest that states should agree by treaty to establish such a government. This reasoning overlooks the fact that no agreement has legal significance except

4 Only some aspects of the law of treaties, selected with a view to illustrating modern problems, are treated here.

against the background of a system of law which attaches legal conse- quences to the contractual act. In international law, some jurists have maintained that the basic rule or principle of that law is the maxim pacta sunt servanda.5 But this primary duty to observe the obliga- tions assumed in agreements would be difficult of operation if the law did not also indicate when an agreement becomes binding, how it is to be interpreted during its effective life, and how it may be termi- nated. The confusion in the lay mind has not been dissipated by the common practice in the United States of referring to international

law as embracing only customary law, which, to be sure, includes the law of treaties but not the treaties themselves. Thus it is fre-

quently said that international conduct is regulated by international law and treaties.6 The European practice of distinguishing between customary and contractual international law and including both types when the term "international law" is used alone is more help- ful. Similarly clarifying is the European practice of referring to "general" or universal international law, partly customary and bind-

ing the international community as a whole, and "particular inter- national law," which binds only certain members of the international

community.

THE CONCLUSION OF INTERNATIONAL AGREEMENTS

It is common practice to conclude treaties subject to ratification by the contracting parties. Ratification is "the formal confirmation and approval of the written instrument." 7 Such confirmation and approval is given in accordance with the constitutional processes and requirements of each state. In the United States, for example, ratification of treaties is an executive function; the Senate "advises

and consents" to ratification where the agreement takes the formal treaty character.8 The popular assertion that the Senate "ratifies"

5 See Briggs, The Law of Nations (1938), 24; Kunz, "The Meaning and the

Randl of the Norm Pacta Sunt Servanda," 39 Am. J. Int. L. (1945), 180.

* The title of an able article by Prof. Quincy Wright illustrates the usual use of the term: "Conflicts Between International Law and Treaties," u Am. J. Int.

L. (1917), 566.

7 2 Hyde, 1429.

8 For discussion of various methods that may constitutionally be utilized by

the United States in order to conclude an international agreement, see Mc-

Dougal and Lans, "Treaties and Congressional-Executive or Presidential Agree- ments: Interchangeable Instruments of National Policy," 54 Yale L. J. (1945),

181, 534.

treaties may be ascribed to the fact that, particularly in the news- papers, the longer constitutional phrase is found too awkward for

general use.

Ratification is not the final step requisite to bringing a treaty into force. The final step is the reciprocal communication of the fact of

ratification, generally termed the "exchange of ratifications," or, as is common in the case of multipartite instruments, the deposit of

ratifications with an agreed depositary, which may be the chancel- lery of a single state or an international official such as the Secretary-

General of the United Nations.

Although it is usual to conclude agreements subject to ratifica- tion, this is not the universal practice, and international law inter- poses no obstacle to bringing an agreement into force on signature by a duly authorized agent of the state.9 It is a matter of the constitutional law of the state whether any particular international agree- ment or type of agreement may be thus concluded.

No change in the existing law regarding the ratification of agree-

ments or the exchange or deposit of ratifications seems to be neces^- sary in connection with agreements to which all the parties are

states. It may be pertinent to note, however, the * provisions of Article 102 of the Charter of the United Nations, which reads as

follows:

1. Every treaty and every international agreement entered into by any member of the United Nations after the present

Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provi- sions of paragraph i of this Article may invoke that treaty or agreement before any organ of the United Nations.

At the San Francisco Conference the above phraseology was pre- ferred to that found in Article 18 of the Covenant of the League of

Nations, which declared that unregistered treaties should not be binding. The exact legal effect of that provision had not been made clear in practice, and the Charter text avoids making registration a

See J. Mervyn Jones, "International Agreements Other than 'Interstate

Treaties': Modern Developments," 21 Brit. Y. B. Int. L. (1944), m.

United Nations headquarters is in typical treaty form and provides in Section 42 that the convention (or agreement) "shall be brought into force by an exchange of notes between the Secretary-General,

duly authorized by a resolution of the General Assembly of the

United Nations, and the United States of America." 11 UNRRA

concluded agreements with various states regarding the distribution of relief supplies. I have seen the text of one of these agreements which was to take effect on signature by a Deputy Director-General of UNRRA and by a cabinet minister of the government concerned;

no ratification was required. The modus vivendi of September 18,

1926 concerning diplomatic immunities of League of Nations officials was agreed to by the Swiss Federal Government, the Secretary-

General of the League, and the Director of the International Labour

Office; it was taken note of by the League Council, but was not subject to ratification.12 Agreements between two or more international organizations are contemplated by recent instruments. Ac- cording to Article 63 of the Charter the Economic and Social Coun- cil "may enter into agreements" with the various specialized agen- cies. These agreements are "subject to approval by the General Assembly." Under Article XII of the Constitution or the Food and

Agriculture Organization agreements may be made with other pub- lic international organizations to define distribution of responsibilities and methods of co-operation. The agreements are to be made by the

Conference, which is the general assembly of the FAO, with "the competent authorities" of the other organization. Subject to control by a decision of the Conference, the Director-General of FAO may

"enter into agreements with other public international organizations for the maintenance of common services, for common arrangements

in regard to recruitment, training, conditions of service, and other related matters, and for interchanges of staff." The FAO constitu- tion was drafted before the United Nations came into existence, but

Article XIII contemplates that a relationship will be established be- tween the two organizations. In this connection the Article speaks

not of "agreements" but of "arrangements"; these are subject to approval by the Conference.13 The World Health Organization may enter into agreements with the United Nations or other ihtergov-

11 UN Doc. A/6;, * Sept. 1946. lt

i Hudson, op. cit., supra note 3, p. 224.

l*Food and Agriculture Organization, Report of the First Session of the

Conference (1946), 87.