The Harvard Research in International Law: Contemporary Analysis and Appraisal Edited by John P. Grant J. Craig Barker HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal i 2007 Library of Congress Cataloging-in-Publication Data The Harvard research in international law : contemporary analysis and appraisal / Edited by John P. Grant and J. Craig Barker. p. cm. ISBN 978-0-8377-3038-7 (cloth : alk. paper) 1. International law Codification History. 2. International law Research History. 3. Justice. Administration of-Interna- tional cooperation-History. 4. Judicial assistance-History. 5. International law and relations-History. 1. Grant, John P. II. Barker, J. Craig, 1966-I I. Title: Research in international law. KZ1293.H37 2007 341 dc22 2007024255 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal ii 2007 TABLE OF CONTENTS P reface v C ontributors ix Chapter 1. The Harvard Research: Genesis to Exodus and Beyond John P. Grant and J. Craig Barker I Chapter 2. Nationality R uth D onner 41 Chapter 3. Responsibility of States for Injuries to Foreigners James Crawford and Tom Grant 77 Chapter 4. Territorial Waters John P . G rant 127 Chapter 5. Diplomatic Privileges and Immunities E ileen D enza 155 Chapter 6. The Legal Position and Functions of Consuls J. C raig B arker 179 Chapter 7. Competence of Courts in Regard to Foreign States H azel F ox 203 Chapter 8. Piracy A lfred P. R ubin 229 Chapter 9. Extradition G eoff G ilbert 247 Chapter 10. Jurisdiction with Respect to Crime: Universal Jurisdiction and the Harvard Research M ichael P . Scharf 275 Chapter 11. Law of Treaties A nthony A ust 307 Chapter 12. Judicial Assistance Jerem y T hom as 337 Chapter 13. Neutrality Stephen C . N eff 381 Chapter 14. Rights and Duties of States in Case of Aggression Elina Steinerte and Rebecca M.M. Wallace 405 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal iii 2007 Harvard Research on International Law Appendix 1. Draft Convention on the Law of Nationality 433 Appendix 2. Draft Convention on Responsibility of States for Damage Done in Their Territory to the Person or Property of F oreigners 437 Appendix 3. Draft Convention on Territorial Waters 441 Appendix 4. Draft Convention on Diplomatic Privileges and Im m unities 445 Appendix 5. Draft Convention on the Legal Position and Functions of Consuls 453 Appendix 6. Draft Convention on Competence of Courts in R egard to Foreign States 463 Appendix 7. Draft Convention on Piracy 469 Appendix 8. Draft Convention on Extradition 475 Appendix 9. Draft Convention on Jurisdiction with Respect to C rim e 487 Appendix 10. Draft Convention on the Law of Treaties 493 Appendix 11. Draft Convention on Judicial Assistance 503 Appendix 12. Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War 513 Appendix 13. Draft Convention on Rights and Duties of States in Case of A ggression 537 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal iv 2007 PREFACE We became acutely interested in the Harvard Research in Interna- tional Law while we were researching all aspects of international law for the second edition of the Encyclopaedic Dictionary of Interna- tional Law in the early 2000s. We wrote, in fact rewrote from the first edition, an entry on the Harvard Research and that set us thinking that, while we knew of its existence and had in our writings and teachings referred to it, we were embarrassingly ignorant of how such an endeavor came to pass, what exactly it did (and how) and what contribution its thirteen projects made to future thinking and practice. We set about an initial investigation and concluded that there was a gap in the literature of international law in that no one had attemp- ted a systematic appraisal of the Harvard Research. Determined to fill that void, we recruited experts in the various fields covered by the Harvard Research and invited them to contribute an appraisal on their area of expertise. The questions we proposed as guidelines for our contributors were simple: on what basis did the thirteen Harvard projects make their proposals for codification and what, if anything, has been the continuing impact of these proposals? Beyond these two suggested questions, we merely indicated a page-limit, leaving every- thing else to the contributors-the result of which is a fairly wide range of approaches. Along with diverse approaches, we expected, and received, a variety of citation styles, which we have left essen- tially unchanged. Because of the nature of this collection and the linking references within chapters, we decided that an index was unnecessary. We had no pre-set view as to the answers to these questions-or indeed to the larger question of the overall impact of the Harvard Research. Insofar as we thought about the larger question, we assumed that the Research had probably had some, but probably not much, effect on future developments. We knew it was cited in the literature, but often merely in a footnote at the beginning of a particu- lar section of a work indicating the general sources on which the author was relying. We suspected that it was one of these sources that requires to be cited in a list of general authorities, but that it might only rarely, and in the most technical areas, be used as an authority for a particular proposition. In short, we thought that it might be often cited but probably never carefully studied. HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal v 2007 Harvard Research on International Law We have arranged the contributions in the order in which they were originally published by the American Society of International Law in a Special Supplement (for the three draft conventions in the first phase of the Research) and Supplements (for the ten draft conventions in the other three phases) to its prestigious Journal. The first chapter, written by us, attempts to place the Harvard Research in its historical context and in the context of subsequent thinking and practice in the thirteen areas with which it dealt. As appendices to the book are the texts of the thirteen draft conventions produced by the Harvard Research, though not the lengthy and useful "Comments" that accompanied each draft convention. At the time of the publication of this book, W.S. Hein is publishing a reprint of the entire Harvard Research, including the draft conven- tions and the "Comments," though not the appendices attached to each Harvard draft convention. All the material is available in the American Journal of International Law, and electronically at HeinOnline, but we are delighted that Hein agreed with us that a reprint was important and timely. We are grateful to the American Society of International Law, the copyright-holder, for giving permis- sion for the reproduction of the Harvard Research draft conventions and "Comments." The Society not only published the Harvard Research phases when they were completed, but, through its members, clearly played a major role in the work of the Research itself. The purpose of all research being to establish the need for further research, we are committed to investigating what happened to the Harvard recognition project, which was never published and perhaps never completed. Somewhere-in the papers of Manley 0. Hudson, the Harvard law library or the papers of Edwin D. Dickinson or Lawrence Preuss, the reporters appointed to the project-there must be evidence of the project's fate. There are many to thank. First, of course, are the contributors, who eagerly embraced this project from the outset, followed the suggested guidelines and wrote analytical and perceptive chapters. We thank Sheila Jarrett, Senior Editor at William S. Hein & Co., Inc., for her constant encouragement, assistance and patience. We want to place on record our sincere appreciation to three fine student research assistants at Lewis & Clark School of Law: the redoubtable and indefatigable Courtney Watts, Grant's research assistant for two HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal vi 2007 Preface vii years, who helped immeasurably with the introductory chapter; Tilah Larson, who also worked on the introductory chapter, especially the section on the International Law Commission; and Sarah Koteen, who assisted Grant with the chapter on territorial waters with a masterly analysis of the Franconia case. For this project, three of the ablest members of the Lewis & Clark Boley Law Library were drafted into service, associate director Tami Gierloff and reference librarians Wendy Hitchcock and Seneca Gray. John P. Grant J. Craig Barker February 2007 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal vii 2007 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal viii 2007 CONTRIBUTORS Anthony Aust retired in 2002 as Deputy Legal Adviser, Foreign and Commonwealth Office, London. He is the author of Modern Treaty Law and Practice, Cambridge University Press, 2nd ed. 2007, Chinese ed. 2005, and a Handbook of International Law, Cambridge University Press, 2005. He is a consultant to governments, interna- tional organisations and Kendall Freeman, the London solicitors, on international law; and a visiting professor of law at the London School of Economics, University College London, and other places. J. Craig Barker is Professor of Law at the Sussex Law School, University of Sussex where he teaches Public International Law and International Criminal Law. He is the author of The Protection of Diplomatic Personnel (2006) and is co-editor of the Encyclopaedic Dictionary of International Law (2nd ed., 2003) and International Criminal Law Deskbook (2006), both with John P. Grant. James Crawford is Whewell Professor of International Law and Director of the Lauterpacht Research Centre for International Law, University of Cambridge. As a member of the United Nations Interna- tional Law Commission (1992-2001), he was responsible for the first draft of the Statute for an International Criminal Court and subsequently was the ILC Special Rapporteur on State responsibility. He has appeared in more than 40 cases before international courts and tribunals, including the International Court of Justice and the Interna- tional Tribunal for the Law of the Sea. He is a Senior Counsel of the New South Wales bar and a member of Matrix Chambers, London. Eileen Denza was formerly assistant Lecturer in Law, Bristol University and a Legal Advisor to the Foreign and Commonwealth Office, and Counsel to the EC Committee of the House of Lords. She is Visiting Professor of Law at University College London and author of Diplomatic Law (2nd ed., 1998) and The Intergovernmental Pillar of the European Union (2002). She is currently preparing a third edi- tion of Diplomatic Law. HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal ix 2007 Harvard Research on International Law Ruth Donner is former Adjunct Professor, and Acting Professor, of Public International Law, Faculty of Law, University of Helsinki, Finland. Together with articles and book reviews on public interna- tional law topics, her publications include: The Regulation of Na- tionality in International Law (1 st ed. Helsinki 1983, 2nd revised ed. Transnational Publishers N.Y. 1994), International Adjudication: Using the International Court of Justice (Helsinki, 1988) and King Magnus Eriksson "s Law of the Realm. A Medieval Swedish Code (Helsinki, 2000, translator and editor). Lady Fox QC (Hazel) is formerly Director, of the British Institute of International and Comparative Law and General Editor of the Interna- tional and Comparative Law Quarterly. She is a member of the Institut de droit international, a Bencher of Lincoln's Inn, Hon Fellow of Somerville College, University of Oxford, a member of the ILA Committees on State Immunity, Diplomatic Protection, Reparation for Victims of War Damage and a Barrister at 4-5 Grays Inn Square, She has published extensively including (with J L Simpson) Interna- tional Arbitration: law and procedure 1959; Editor International Law and Developing States Vol 11988: vol. II; An Introduction to Interna- tional Economic law 1992; Joint Development of Qffshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary Vol L 1989, vol .1f, 1990; Law of State Immunity 2002, pb 2004. Geoff Gilbert is Professor of Law in the Department of Law, University of Essex. He was part of the Human Rights Centre's research programme on human rights in situations of acute crisis that was carried out on behalf of DFID. He has carried out human rights training on behalf of the Council of Europe and UNHCR in the Russian Federation (Siberia, the Urals and Kalmykskaya), Georgia, Bosnia-Herzegovina, Croatia, Macedonia and Kosovo. He has advised governments on their laws in Central and Eastern Europe, the Balkans and the FSU, and was the Director of the OSCE training programme on torture for judges in Serbia & Montenegro. He has acted as an expert consultant on refugees and terrorism for UNHCR. He is Director of Studies for the UNHCR Thematic Course on Refugee Law and Human Rights for Adjudicators He is the Editor in HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International Law: Contemporary Analysis and Appraisal x 2007 [...]... partner in the international law firm Ashurst, and he is based in London, England He is the author of numerous articles and has a special interest in the history of international law His publications include the Intertwining of Law and Theology in the Writings of Hugo Grotius in the Journal of the History of International Law (1999) and History and International Law in Asia: A Time for Review in Essays in. .. six HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal xi 2007 Harvard Research on International Law governments and the Prosecutor of an International Criminal Tribunal for the work they have done to help in the prosecution of major war criminals During the first Bush and Clinton administrations, Scharf served in the Office of the Legal... (1939) HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal 7 2007 Harvard Research on International Law tise in the topic under investigation), in the hope that each draft 52 51 convention would be "of interest" to, or "merit the attention" of, those involved in codifying international law In his 1928 note announcing the Harvard Research, ... 1953) HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal 20 2007 The Harvard Research: Genesis to Exodus explored: the extent to which the Harvard Research was cited by scholars in law reviews; the extent to which the authors of the leading texts and treaties on general international law relied on the Harvard Research; the use made and. .. See The Final Act of the Conference for the Codification of International Law, L.N Doc V.Legal 1930.V.7 The Final Act was reprinted in 24 Am J Int'l L 169 (1930) and Rosenne, supra n 34, Vol 3, 840 HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal 5 2007 Harvard Research on International Law law on nationality, 38 and not the single... and Materials (2001) She is a member of Lincoln's Inn, a non-practising member of the English Bar and a parttime Immigration Judge HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal xiii 2007 HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal xiv 2007 Chapter 1 THE HARVARD. .. statement at the beginning of the text of the each draft convention refers to the disclaimers contained in the General Introduction 'o General Introduction, 29 Am J.Int'l L (Supp.) 1 at 2-3 and 5-7 (1935) HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal 11 2007 Harvard Research on International Law gressive Codification of International. .. (1928) The conference to which Hudson referred in fact took place in 1930 2 An excellent overview of the Research and Hudson's role in it is provided by Kenny, Manley 0 Hudson and the Harvard Research in International Law 1927-40, 11 Int Lawyer 319 (1977) HeinOnline 1 John P Grant & J Craig Barker, Harv Research in International Law: Contemporary Analysis and Appraisal 1 2007 Harvard Research on International. .. teaches International Law, International Criminal Law, the Law of International Organizations, and a War Crimes Research Lab, which provides research assistance to the Prosecutors of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court, the Extraordinary Chambers in the Courts of Cambodia, and the Iraqi High Tribunal on issues pending before... HarvardResearch in InternationalLaw (2008) The text of the draft convention appears below as Appendix 1 62 Ibid., 131 The draft convention and commentary have been reprinted by W.S Hein in the HarvardResearch in InternationalLaw (2008) The text of the draft convention appears below as Appendix 2 63 Ibid., 241 The draft convention and commentary have been reprinted by W.S Hein in the HarvardResearch in InternationalLaw . Harv. Research in International Law: Contemporary Analysis and Appraisal iv 2007 PREFACE We became acutely interested in the Harvard Research in Interna- tional. Harv. Research in International Law: Contemporary Analysis and Appraisal xiii 2007 HeinOnline 1 John P. Grant & J. Craig Barker, Harv. Research in International