The Harvard Research in International Law: Contemporary Analysis and Appraisal pot

Harvard Research on International LawWe have arranged the contributions in the order in which theywere originally published by the American Society of International Law in a Special Supp

The Harvard Research in

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

Chapter 3 Responsibility of States for Injuries to Foreigners

James Crawford and Tom Grant 77

Chapter 4 Territorial Waters

Chapter 10 Jurisdiction with Respect to Crime: Universal

Jurisdiction and the Harvard Research

Chapter 14 Rights and Duties of States in Case of Aggression

Elina Steinerte and Rebecca M.M Wallace 405

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

We became acutely interested in the Harvard Research in 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-orindeed 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

Harvard Research on International Law

We have arranged the contributions in the order in which theywere 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 whenthey 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 furtherresearch, 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, whoeagerly 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

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

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.

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 InternaInterna-tional 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

Chief of the International Journal of Refugee Law He is the author of

Responding to International Crime (2006) His specialisms are

inter-national human rights law, the protection of refugees and displaced

persons in international law, and international criminal law

John P Grant is Professor of Law, Lewis & Clark School of Law,

Portland, Oregon, where he teaches International Law and

Interna-tional Human Rights, and Emeritus Professor of InternaInterna-tional Law,

University of Glasgow, Scotland Among his publications are the

Encyclopaedic Dictionary of International Law (1st ed 1986 with

Parry, 2nd ed 2003 with Barker), The Lockerbie Trial: A

Documen-tary History (2004) and International Criminal Law Deskbook (with

Barker, 2006)

Tom Grant is a senior research fellow of Wolfson College and a

research associate of the Lauterpacht Centre for International Law,

University of Cambridge He has assisted on cases before various

courts and tribunals and has acted as advisor or consultant on a

number of public international law matters He is admitted to the bars

of Massachusetts, New York and Washington, DC

Stephen C Neff is a Reader in Public International Law at the

University of Edinburgh, School of Law He is also a qualified lawyer

in England, as well as in two jurisdictions in the United States He is

the author of Rights and Duties of Neutrals: A General History

(2000)

Alfred P Rubin is Distinguished Professor of International Law, The

Fletcher School of Law & Diplomacy, Tufts University, where he

teaches seminars on Origins and Development of International Law,

Legal Regulation of Armed Conflict and Law of the Sea Among a

wealth of his publications are the Law of Piracy (1988, revised 2nd

ed., 1998) and Ethics and Authority in International Law (1997).

Michael Scharf is Professor of Law and Director of the Frederick K

Cox International Law Center at Case Western Reserve University

School of Law In February 2005, Professor Scharf and the Public

International Law and Policy Group, a Non-Governmental

Organiza-tion he co-founded, were nominated for the Nobel Peace Prize by six

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 Adviser of the U.S Department of

State, where he held the positions of Attorney-Adviser for Law

Enforcement and Intelligence, Attorney-Adviser for United Nations

Affairs, and delegate to the United Nations Human Rights

Commis-sion Scharf is the author of over sixty scholarly articles and ten

books, including Balkan Justice, which was nominated for the

Pulitzer Prize in 1998, The International Criminal Tribunal for

Rwanda, which was awarded the American Society of International

Law's Certificate of Merit for the Outstanding book in International

Law in 1999, and Peace with Justice, which won the International

Association of Penal Law Book of the Year Award for 2003 Winner

of the Case School of Law Alumni Association's 2005 "Distinguished

Teacher Award" and Ohio Magazine's 2007 "Excellence in Education

Award," Scharf 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 those international war crimes tribunals

Elina Steinerte is a Research Associate at the Law School of the

University of Bristol She has recently completed her PhD and is now

working on the (UK) Arts and Humanities Research Council-funded

project on the implementation of the Optional Protocol to the United

Nations Convention against Torture Co-author (with Wallace) of the

Nutcases:Public International Law (2007).

Jeremy A Thomas (LLB, LLM) is a 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

interna-tional 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 Honour of Wang Tieya

(1994)

Contributors xiii

Rebecca M.M Wallace is Professor of International Human Rights

Law, The Robert Gordon University, Aberdeen, Scotland Her

publi-cations include A Public International Law Nutshell (2006),

tional Law A Student Text (1 st ed 1987, 5th ed 2005) and

Interna-tional Human Rights Text and Materials (2001) She is a member of

Lincoln's Inn, a non-practising member of the English Bar and a

part-time Immigration Judge

Chapter 1

THE HARVARD RESEARCH:

GENESIS TO EXODUS AND BEYOND

John P Grant andJ Craig Barker

In the 1928 volume of the American Journal of International Law, a

brief note appears in the Editorial Comment section, over the name of

Manley 0 Hudson It begins: "On the initiative of the Faculty of the

Harvard Law School, a group of Americans interested in international

law has undertaken to organize a co6perative research in international

law, dealing with the three topics which have been selected for the

agenda of the [League of Nations] Conference for the Codification of

International Law, to be held in 1929."1 In two pages, the note goes

on to outline the involvement of the League's Assembly in the

codification of international law, the identification of nationality,

State responsibility and territorial waters as the first three topics

selected for codification, the appointment at Harvard of an advisory

committee of distinguished experts, under the chairmanship of

George W Wickersham of New York, and of an executive

commit-tee, with Hudson as director of research, and the nomination of

repor-ters for the three codification topics From this modest announcement

emerged a project that would endure for 12 years, from 1927 to 1939,

produce a total of 13 draft conventions, with accompanying

commen-taries, and contribute substantially to the development of international

law in the 20th Century

League of Nations' Codification Efforts

The Harvard Research has to be located in the context of thecontemporary efforts to codify international law during the era of the

1 Hudson, Research in International Law, 22 Am J Int'l L 151 (1928) A note

by Hudson in almost identical terms appeared in 22 Am Pol Sci R 451 (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).

Harvard Research on International Law

League of Nations The simple truth is that the League's Covenant3

had no provision equivalent to Article 13(l)(a) of the United Nations

Charter, requiring the General Assembly to initiate studies and make

recommendations in order, inter alia, to "encourag[e] the progressive

development of international law and its codification." In fulfillment

of its duties under Article 13(1)(a), the U.N General Assembly

estab-lished the International Law Commission in 19474 and this body has

been the principal instrument through which the progressive

develop-ment of international law and its codification have been undertaken.5

No organ of the League of Nations had any obligation in respect of

international law Nonetheless, the League did involve itself in the

codification of international law,6 but with limited palpable success

As early as 1920, the Advisory Committee of Jurists charged withthe task of drafting the Statute of the Permanent Court of International

Justice recommended the continuation of the work of the Hague

conferences of 1899 and 1907 with a view to developing and

codify-ing international law.7 It was not until 1924 that the League's

Assembly acted on this recommendation, at which time it

recom-mended that the Council convene a committee of experts to prepare a

list of areas of international law in which international agreement was

"most desirable and realizable;" and, after receiving the views of

governments, to report to the Council on the areas "sufficiently ripe"

for agreement and on the procedure that might be followed for the

3 225 C.T.S 188.

4 By Resolution 174 (II) of 17 November 1947, to which was annexed the

Commission's Statute; reprinted in 42 Am J Int'l L (Supp.) 2 (1948).

5 See Briggs, The International Law Commission (1965); Ramcharan, The

International Law Commission: Its Approach to the Codification and

Progres-sive Development of International Law (1973); Sinclair, The International Law

Commission (1987); Anderson, Boyle, Lowe and Wickremasinghe, The

Interna-tional Law Commission and the Future of InternaInterna-tional Law (1998); Watts, The

International Law Commission 1947-1998 (1999); Morton, The International

Law Commission of the United Nations (2000).

6 The League's involvement is succinctly set out, with the relevant resolutions

appended, in the Historical Survey of Development of International Law and its

Codification by International Conferences 1947, U.N Doc A/AC 10/7, Part I11;

reprinted in 41 Am J Int'IL (Supp.) 29 (1947).

7 Resolution of 24 July 1920, Procds-Verbaux of the Proceedings of the

Committee, 1920, 747

The Harvard Research: Genesis to Exodus

elaboration of agreements in those areas.8 In response, the Council

established a committee, termed the Committee [of Experts] for the

Progressive Codification of International Law, consisting of

seven-teen distinguished jurists, including, interestingly, George W

Wicker-sham, who was later to play such a prominent part in the Harvard

Research.9

The Committee of Experts met in three sessions, in April 1925,January 1926 and April 1927.10 At the first session, the Committee

identified eleven fields of international law to be investigated by

subcommittees "with a view to later elaboration of detailed

propo-sals."' 1 They were nationality, territorial waters, diplomatic privileges

and immunities, status of government ships engaged in commerce,

extradition, State responsibility, treaties, piracy, prescription in

international law, exploitation of the product of the seas and

extra-territorial jurisdiction.1 2 The second session was devoted to the

consideration of the reports of the sub-committees and the

formula-tion of "quesformula-tionnaires."13 Questionnaires Nos 1 (nationality),14 2

(territorial waters)15 and 6 (piracy)16 each comprised a narrative of the

issues involved in codification and a preliminary draft convention

Questionnaires No 3 (diplomatic privileges and immunities),17 4

(State responsibility),18 5 (treaties)19 and 7 (exploitation of the product

' Resolution of 22 September 1922, L.N.O.J., Spec Supp., No 21, 1922, 10.

9 Resolution of 12 December 1924, L.N.O.J., February 1924, 274.

10 See Rosenne, The League of Nations Committee of Experts for the

Progres-sive Codification of International Law (1972), Introduction; all the important

documents concerning the Committee of Experts are contained in this

two-volume set

"L.N Doc C.275.1925.V; reproduced in 20 Am J Int'l L (Spec Supp.) 14-15

(1926)

12 Id.; reproduced in 20 Am J Int'l L (Spec Supp.) 17 (1926).

13 L.N Doc C.44.M.21.1926.V; reproduced in 20 Am J Int'l L (Spec Supp.)

Harvard Research on International Law

of the seas)20 merely identified the principal issues that would require

to be addressed in any codifying convention These numbered

ques-tionnaires were to be transmitted to governments for their "opinion,"

upon the receipt of which the Committee would recommend the

topics that were "sufficiently ripe" for codification.2' As to

extradi-tion22 and extra-territorial jurisdiction,2 3 the Committee's reports were

not included on the provisional list of subjects for codification and

were forwarded to governments "for their information 24 The

Committee's special report on the status of government ships

employed in commerce25 was remitted to the Council of the League of

Nations;2 6 and the question of prescription in international law was

deferred until the next meeting of the Committee.27

At its third session, the Committee of Experts considered theopinions submitted by governments to the seven questionnaires,

concluding that "generally speaking, [all] the above questions, within

the limits indicated in the respective questionnaires, are now, in the

words of the terms of reference, 'sufficiently ripe.' '28 Additionally,

the Committee identified four further areas of international law for

which it prepared questionnaires to be forwarded to governments:

judicial assistance in penal matters, legal position and functions of

consuls, revision of the classification of diplomatic agents and

competence of courts in regard to foreign States.29

In September 1927, the Assembly of the League of Nationsresolved to submit nationality, territorial waters and State respon-

sibility to the "first" codification conference, to invite the Council to

make arrangements for The Hague to be the venue of that conference

and to entrust the Council with the establishment of a Preparatory

28 22 Am J Int'l L (Spec Supp.) I at 3 (1928) Annex III to this document

contains the analysis of the governmental opinions

29 Ibid., 1 The questionnaires appear at 46 103, 104 110, 111 116 and 117

132 respectively

The Harvard Research: Genesis to Exodus

Committee, of five experts, "to prepare a report comprising

suffi-ciently detailed bases of discussion on each question 13 The

Preparatory Committee met first in February 1928 to adopt three lists

of points on which information from governments was sought; that

information was to cover States' existing internal law and

interna-tional practice and their views de lege ferenda 3 1 Later, in May of

1929, the Committee drafted in final form three sets of Bases of

Discussion, for nationality,3 2 territorial waters33 and State

responsi-bility,3 4 these bases being described subsequently as "neither in the

nature of a mere restatement of existing law nor purely in the nature

of proposals for new law." 35

In one month, from 13 March to 12 April 1930, the representatives

of forty-eight States debated, through three committees,36 the Bases of

Discussion with a view to adopting codifying conventions 37 The

Hague Conference for the Codification of International Law was, by

any standards, a disappointment There was no codifying convention

on territorial waters or State responsibility As far as nationality was

concerned, all that emerged were four agreements on aspects of the

30 Resolution of 27 September 1927, L.N.O.J Spec Supp No 53, 9; 22 Am J.

Int'l L (Spec Supp.) 231 (1928).

31 L.N Doc C.44.M.21.1928.V.

32 L.N Doc C.73.M.38.1929.V; reprinted in Rosenne, The League of Nations

Conference for the Codification ofInternational Law (1930) (1975), Vol 1, 1.

33 L.N Doc C.74.M.39.1929.V; reprinted in Rosenne, The League of Nations

Conference for the Codification ofInternational Law (1930) (1975), Vol 2, 219.

34 L.N Doc C.75.M.69.1929.V; reprinted in Rosenne, The League of Nations

Conference for the Codification ofInternational Law (1930) (1975), Vol 2,423.

35 Historical Survey of Development of International Law and its Codification by

International Conferences 1947, supra n 6, 79.

36 I Nationality, L.N Doc C.351(a).M.145(a)1930 V; reprinted in Rosenne,

supra note 34, Vol 3, 881-1201; II Territorial Waters, L.N Doc.

C.351(b).M.145(b).1930.V, reprinted in Rosenne, supra note 34, Vol 4,

1203-1423; II Responsibility of States, L.N Doc 351 (c).M 145(c) 1930.V, reprinted

in Rosenne, supra n 34, Vol 4, 1425 1661.

37 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.

Harvard Research on International Law

law on nationality,38 and not the single convention that had been

envisaged

The participants at the Hague Conference clearly thought theywere attending the first of a series of League-sponsored codification

conferences, for, annexed to the Final Act, is a recommendation

urging the continuation of that conference's work and suggesting

procedural changes.39 The Eleventh Assembly took up this call and

invited States' view on possible subjects for codification.4 ° Conscious

of the lack of strong support for a codification programme, the

Twelfth Assembly transferred the initiative for codification from the

League to its members,4 1 effectively ending the process in the era of

the League.42

Hindsight provided some telling reasons for the relative ure of the League's codification endeavors Shabtai Rosenne, who has

fail-chronicled the entire process in two books,43 and the careful analysis

by the U.N Secretariat of early codification efforts as potential

models for codification in the U.N era44 both identified defects in the

process and the attitude and perception of its participants Principally,

the Hague Conference attempted too much in too little time, aiming to

adopt three codification conventions on important matters in one

month.4' Also, at the time, the distinction between mere codification

38 See Convention on Certain Questions relating to the Conflict of Nationality

Laws, 179 L.N.TS 89; Protocol relating to Military Obligations in Certain

Cases of Double Nationality, 178 L.N.S 227; Protocol relating to a Certain

Case of Statelessness, 179 L.N.TS 179; and Special Protocol relating to

Statelessness, L.N Doc C.27.M.16.193 I.V.

39 The Final Act of the Conference for the Codification of International Law,

supra n 37, 171, Appendix 10

40 Resolution of 3 October 1930, L.N.O.J, Spec Supp., No 83, 9

41 Resolution of 26 September 193 1, L.N.O.J Spec Supp., No 92, 9

42 See Rosenne, supra n 34, xl; Hudson, The Prospect for Future Codification,

26 Am J Int'lL 137 at 143 (1932).

43 The League of Nations Committee of Experts for the Progressive Codification

of International Law (1972) and The League of Nations Conference for the

Codification qf International Law (1930) (1975).

44

Historical Survey of Development of International Law and its Codification by

International Conferences 1947, supra n 6.

45 Ibid., 54 See also Rosenne, supra n 34, Vol 1, xlii; Miller, The Hague

Codification Conference 24 Am J Int'l L 674 at 693 (1930); Lauterpacht, Eli

(ed.), International Law Collected Papers of Hersch Lauterpacht (1970), Vol

1, 106.

The Harvard Research: Genesis to Exodus

of existing rules and progressive development of the law with

addi-tions and amendments to these rules was not clearly understood by

States, with the result that the Hague participants had difficulty in

understanding and accepting the process in which they were

engaged.4 6 And all who examined the League's codification process

have emphasized the critical importance of preparation and

consulta-tion prior to a codificaconsulta-tion conference.4 7

These things having been said, the legacy of the League's forayinto codification is far from negative In the words of Manley

Hudson, who among other things found time to be the U.S technical

adviser to the Hague conference: "A beginning has been made, some

steps have been taken, some lessons have been learned, some

mis-takes have been exposed, some threads have been left hanging which

a future conference may pick up, some lines have been forged along

which future effort may proceed 4 8 Or, as put slightly differently, by

Shabtai Rosenne: "the accomplishment of the Committee of Experts,

the entire work of the 1930 Codification Conference (including the

Preparatory Committee) has been caught in the broad sweep of the

United Nations Codification effort ,4 9

The Harvard Research Phases

The Harvard Research in International Law was conducted in fourphases The aim of each of the thirteen projects within these four

phases was the preparation of a draft convention,50 representing the

collective view of a group of Americans with special interest in the

development of international law (and, though not stated, with

exper-46 Ibid., 85 See also Rosenne, supra n 10, Vol 1, at xl; Hudson, 24 Am Soc'y

Int'lL Proc 230-231 (1930); Brierly, The Future of Codification, 12 B.Y.I L 1

at 5-6 (1931); Lauterpacht, supra n 45, 454-456.

47 Ibid., 85-86 See also Rosenne, supra n 10, Vol 1, at xlii-xliii; Miller, supra

n 45, 693; Hudson, The First Conference for the Codification of International

Law, 24 Am J Int'lL 447 at 465 (1930); Brierly, supra n 46, 11.

48 Supra n 42, 465-466.

49

Supra n 10, Vol 1, xlv.

50 General Introduction, 23 Am J Int'l L (Spec Supp.) I at 3 (1929) See also

the General Introductions to the other three phase: 26 Am J Int'l L (Supp.) I at

5 (1932), 29 Am J Int'lL (Supp.) I at 8 (1935) and 33 Am J Int'lL (Supp.) I

at 10 (1939)

Harvard Research on International Law

tise in the topic under investigation), in the hope that each draft

convention would be "of interest" to,51 or "merit the attention" of,52

those involved in codifying international law

In his 1928 note announcing the Harvard Research, ManleyHudson said only that the research "should be undertaken along the

general lines followed by the Institut de Droit International and the

American Law Institute, with a director of research, with a reporter

for each of the subjects to be considered ., and with advisers to

assist each of the reporters ' 3 That brief description of how the

Harvard Research was to be conducted for the nationality, State

responsibility and territorial waters projects was essentially the

procedure that was followed in all four phases of the Research 4 The

Institut, founded in 1873, had, by the 1920s, developed a method of

restating and codifying international law through the identification of

suitable topics, appointment of rapporteurs and advisers,

investiga-tion and study and eventual adopinvestiga-tion of texts at regular sessions of the

entire Institut 55 A broadly similar model was adopted to restate

American law by the American Law Institute.6

First phase (1927-29)

On 27 September 1927, the Eighth Assembly of the League of tions identified nationality, State responsibility and territorial waters

Na-51 General Introduction, 23 Am J Int'lL (Spec Supp) 1 at 9 (1929) and 26 Am.

J Int'l Law (Supp.) I at 14 (1932).

52 General Introduction, 29 Am J Int'l L (Supp.)l at 8 (1935) and 33 Am J.

Int'lL (Supp.) I at 10 (1939)

53 Supra n I at 152 See also General Introduction, 23 Am J Int'l L I at 3

(1929) which reversed the order: "The method followed by the American Law

Institute, which is very similar to that of the Institut de Droit International, was

adopted for the Research "

54 See General Introductions 26 Am J Int'l Law (Supp.) 1 at 5 (1932).

55 For the history of the Institut, see Abrams, The Emergence of International

Law Societies, 19 Review of Politics 361 (1957); Hambro, The Centenary of the

Institut de Droit International, 43 Nordisk Tidsskrift Int'l Ret 9 (1973) See also,

<www.idi-iil.org>

56 See ALI, The American Law Institute's Seventy-fifth Anniversary (1998),

especially Chaps I and 2 See also ALl, Capturing the Voice of the ALL A

Handbook for ALI Reporters and those who Review their Work (2005); and

<www.ali.org>

The Harvard Research: Genesis to Exodus

as the subjects of its first codification conference.5 7 In response, the

Advisory Committee of the Harvard Research, comprising forty-four

American scholars and jurists, approved the nomination of three

reporters, Richard W Flournoy, Jr., for nationality, Edwin M

Borchard for State responsibility and George Grafton Wilson for

terri-torial waters.58 These reporters, along with the Research's Director of

Research, Manley 0 Hudson, appointed ten advisers for each of the

topics.59 The reporters and advisers met between early 1928 and late

1929; on twelve separate days in the case of nationality, thirteen days

in the case of State responsibility and fourteen days in the case of

the Person or Property of Foreigners, and on the Law of Territorial

Waters.63 Additionally, the Research published a collection of

na-tionality laws in 1930.64

The three draft convention were specifically stated to have been

"recommended" by the Advisory Committee and "authorized" by the

Faculty at Harvard Law School.6 They are equally specifically

declared not to represent the individual view of the persons involved

57 L.N.O.J Spec Supp., No 53, 9.

58 General Introduction, 23 Am J Int'lL (Spec Supp.) I at 7 8 (1929).

59

id.

6 0

Ibid., 8.

61 Ibid., 11 The draft convention and commentary have been reprinted by W.S.

Hein in the Harvard Research in International Law (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 Harvard Research in International Law (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 Harvard Research in International Law (2008) The text of the draft

convention appears below as Appendix 3

64 Flournoy and Hudson, A Collection of the Nationality Laws of Various

Countries (1930).

65 General Introduction, 23 Am J Int'l L (Spec Supp.) 1 at 9 (1929)

Harvard Research on International Law

in their preparation and authorization; and, being "wholly unofficial,"

they did not represent the views of the U.S Government.6 6

Second phase (1929-32)

In February 1929, and before the League of Nations CodificationConference had met, the Advisory Committee decided to undertake

the preparation of draft conventions in four additional areas identified

by the League of Nations Committee of Experts on the Progressive

Codification of International Law as ripe for codification:67

Diplo-matic Privileges and Immunities, with Jesse S Reeves as reporter and

nineteen advisers; Legal Position and Functions of Consuls, with

Quincy Wright as reporter and fourteen advisers; Competence of

Courts in regard to Foreign States, with Philip C Jessup as reporter

and twenty advisers; and Piracy, with Joseph W Bingham as reporter

and fifteen advisers.6 8

Meetings of the research teams took place between late 1930 andlate 193 1,69 with fifteen meetings on diplomatic privileges and

immunities, thirteen each on consuls and the competence of courts

and nine on piracy.70

Four drafts and commentaries emanated from these deliberations:

on Diplomatic Privileges and Immunities, 7 1 on the Legal Position and

Functions of Consuls,7 2 on the Competence of Courts in regard to

Foreign States,73 and on Piracy.74 Also published by the Research at

66 id.

67 L.N.O.J Supp No 64, 143

68 General Introduction, 26 Am J Int'lL (Supp.) I at 10 12 (1932)

69 id.

70

id.

71 Ibid., 19 The draft convention and commentary have been reprinted by W.S.

Hein in the Harvard Research in International Law (2008) The text of the draft

convention appears below as Appendix 4

72 Ibid., 189 (1932) The draft convention and commentary have been reprinted

by W.S Hein in the Harvard Research in International Law (2008) The text of

the draft convention appears below as Appendix 5

73 Ibid., 451 (1932) The draft convention and commentary have been reprinted

by W.S Hein in the Harvard Research in International Law (2008) The text of

the draft convention appears below as Appendix 5

74 Ibid., 739 (1932) The draft convention and commentary have been reprinted

the draft convention appears below as Appendix 6

The Harvard Research: Genesis to Exodus

this time was a collection of piracy laws;7 5 and in 1933, a collection

of diplomatic and consular laws was published in conjunction with

the Carnegie Endowment for International Peace.76

The draft conventions and commentaries are stated not to representthe views of the individuals involved in their preparation, nor the

views of the U.S Government.77 These same disclaimers appear in

respect of the draft conventions in the third and fourth phases of the

Harvard Research.78 Significantly, in none of the phases after the first

phase in 1932 is there any mention of the Advisory Committee

"recommending" the draft conventions, or of the Harvard Faculty

"authorizing" them For the final two draft conventions in the Harvard

Research, on neutrality and aggression, there is a further, almost

superfluous, disclaimer, which reads: "The considerations of the Draft

Convention revealed fundamental differences of opinion regarding

the general organization of the draft, its underlying theories, and a

number of the specific rules and principles set forth therein The

Research nevertheless presents it, without any implication that the

Draft as published reflects even a consensus of the members of the

Advisory Committee, hoping that its debates upon the problem may

be continued among scholars throughout the world with a view to the

further clarification of the subject., 79

Third phase (1932-35)

In February 1932, the Advisory Committee decided to continue theHarvard Research for a third phase and identified three topics for

consideration: extradition, jurisdiction with respect to crime and

treaties.80 The League of Nations Committee of Experts on the

Pro-71 Morrison, A Collection of Piracy Laws of Various Countries, 26 Am J Int'l

L (Supp.) 887 (1932).

76 Feller and Hudson, A Collection of the Diplomatic and Consular Laws and

Regulations of Various Countries (1933).

77 General Introduction, 26 Am J Int'l L (Supp.) 1 at 14 (1932).

78 General Introduction, 29 Am J Int'l L (Supp.) 1 at 8 (1935), General

Intro-duction, 33 Am J Int'lL (Supp.) I at 11 (1939).

79 33 Am J Int'l L (Supp.) 175 and 827 In addition, a footnote from that

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)

Harvard Research on International Law

gressive Codification of International Law had determined, in January

1926, that there were insuperable difficulties in securing any

interna-tional agreement on extradition.8 1 Nonetheless, the Executive

Com-mittee of the Harvard Research, not the full Advisory ComCom-mittee,

considered that extradition should be explored by the Research, and

appointed Charles K Burdick as reporter.82 Likewise, while the

League's Committee of Experts had concluded, also in January 1926,

that the codification of the law on jurisdiction with respect to crime

would encounter grave political and other obstacles,83 the Executive

Committee thought that the subject should be explored, and appointed

Edwin D Dickinson as reporter.8 4 The League's Committee of

Experts had determined, in April 1927 and after careful study, that the

law of treaties was "sufficiently ripe for codification, 85 though it

86

subsequently suggested a separate procedure for that codification

When the matter was referred to the Council and Assembly of the

League, these bodies were content to have the Secretariat

investi-gate.87 Subsequently, the American States had adopted, at Havana in

February 1928, a convention on treaties,88 but not all the States

represented at Havana had ratified this treaty Against this

back-ground, the Executive Committee decided that the law of treaties

should be explored as part of the Harvard Research, and appointed

James W Garner as reporter.89

The extradition team, with two research assistants (V.G Terentieffand Lucien Tharaud) and sixteen advisers met on thirteen occasions

between January 1933 and December 1934;90 the criminal jurisdiction

team, with an assistant reporter (William W Bishop), two research

assistants (Lawrence Preuss and Benjamin Akzin) and twenty-one

81 L.N Doc C.51.M.28.1926.V, reprinted in 20 Am J Int'l L (Spec Supp.) 243

(1926)

82 General Introduction, 29 Am J Int'lL (Supp.) I at 5 6.

83 L.N Doc C.50.M.27.1926.V, reprinted in 20 Am J Int'l L (Spec Supp.) 253

88 Hudson, International Legislation, Vol 4, 2378 (1931).

89 General Introduction, 29 Am J Int'l L (Supp.) I at 7 (1935).

9 0

Ibid., 5-6.

The Harvard Research: Genesis to Exodus

advisers, met on eight occasions between December 1932 and

December 1933;91 and the treaties' team, with an assistant reporter

(Valentine Jobst) and eighteen advisers, met on seventeen occasions

between November 1932 and December 1933.92

The product of these deliberations was three draft conventions andcommentaries: on Extradition,9 3 on Jurisdiction with respect to

Crime, 4 and on the Law of Treaties.95

Fourth phase (1935-39)

A fourth phase of the Harvard Research was mandated by theAdvisory Committee in February 1935, with three topics identified as

appropriate for consideration: judicial assistance, neutrality and

recognition of States.96 While the League of Nations Committee of

Experts had undertaken some work on aspects of judicial assistance, it

considered that the only achievable international agreement was in

relation to universally condemned crimes.97 The Harvard Executive

Committee thought that the subject "could be usefully explored" by

the Research; James Grafton Rogers and A.H Feller were appointed

reporters.98 In the immediate post-World War I years, little

interna-tional interest had been shown in neutrality, though a Convention on

Maritime Neutrality had been adopted by the American States in

192899 and a number of States had revised their neutrality laws In

these circumstances, the Executive Committee concluded that "the

91 Ibid., 6 7.

92

Ibid., 7 8

93 29 Am J Int'l L (Supp.) 15 (1935) The draft convention and commentary

have been reprinted by W.S Hein in the Harvard Research in International Law

(2008) The text of the draft convention appears below as Appendix 8

94 Ibid., 435 The draft convention and commentary have been reprinted by W.S

Hein in the Harvard Research in International Law (2008) The text of the draft

convention appears below as Appendix 9

95 Ibid., 653 The draft convention and commentary have been reprinted by W.S

Hein in the Harvard Research in International Law (2008) The text of the draft

convention appears below as Appendix 10

96 General Introduction, 33 Am J Int'lL (Supp.) I at 2 and 6 (1939)

Harvard Research on International Law

time had arrived when a special investigation should be made of the

whole topic;" and Philip C Jessup was appointed reporter.100

The fate of the Harvard Research's involvement with the issue ofrecognition is fascinating The Executive Committee had concluded

that "it could usefully be investigated;" and Edwin D Dickinson and

Lawrence Preuss were appointed reporters.10 1 The General

Introduc-tion to the fourth phase of the Research, written by Manley Hudson,

then states: "A draft Convention on the Recognition of States is in the

course of preparation, but circumstances have prevented its

comple-tion in time for publicacomple-tion in this volume."'0 2 Subsequently, the

Survey of International Law in Relation to the Work of Codification of

the International Law Commission added that "valuable preparatory

work was done; but it was not possible to register sufficient

progress for the production of a Draft Convention."'10 3

The recognition project never having reached fruition, almost as if

to compensate, a reporter and advisers worked on, and produced, a

draft convention on the Rights and Duties of States in Case of

Aggression In Hudson's words, "In connection with the subject of

Neutrality, it was found necessary to pursue a study of a

complimen-tary subject, Rights and Duties of States in Case ofAggression; and a

draft convention was prepared on this subject to accompany the draft

convention on Rights and Duties of Neutral States in Naval and

Aerial War " 10 4 The spin-off aggression team had Philip C Jessup

as its reporter

The two reporters on judicial assistance and their fifteen advisersmet on six occasions between February 1937 and November 1938;105

and the reporter on neutrality, along with his assistant (Oliver J

Lissitzen), twenty-one advisers and nine special advisers on air

ques-tions and one special adviser on maritime quesques-tions, met on thirteen

occasions between January 1936 and December 1938.106 There is no

indication of the advisers appointed to assist Dickinson and Preuss in

their investigation of recognition, nor of the frequency with which

100 General Introduction, 33 Am J Int'IL (Supp.) 1 at 8 (1939).

101 Ibid., 6 and 9.

'02 Ibid., 9.

103 U.N Doc ACN.4/I /Rev.1, 27.

104 General Introduction, 33 Am J Int'lL I at 8 (1939).

10' Ibid., 7.

106 Ibid., 8.

The Harvard Research: Genesis to Exodus

they met Jessup had seventeen advisers for the aggression project, ten

of whom were also involved in the neutrality project.10 7

The fourth phase of the Harvard Research produced three draftconventions and commentaries: on Judicial Assistance,'1 8 on Rights

and Duties of Neutral States in Naval and Aerial War10 9 and Rights

and Duties of States in Case of Aggression.110 Also published by the

Research, in collaboration with the Carnegie Endowment for

Interna-tional Peace, was a collection of neutrality laws and treaties."'1

With financial support dwindling, with the prospects of anymeaningful codification through the League of Nations ended after

the relative failure of the 1930 Codification Conference, with George

Wickersham's important influence gone with his death in 1936 and

with Manley Hudson's formidable and pivotal role having been

necessarily reduced by the demands of his appointment to the bench

of the Permanent Court of International Justice in the same year, it

was inevitable that the Harvard Research would falter.1 12 While some

work was undertaken in the areas of denial of justice and the rights

and duties of States in civil strife,1 13 no further draft conventions and

accompanying commentaries were produced

As a postscript, the Harvard Research was resurrected in all butname in 1956 when the International Law Commission, then

considering State responsibility, invited Harvard Law School to revise

the draft Convention on Responsibility of States for Damage done on

their Territory to the Person or Property of Foreigners of 1929 Dr

Yuen-li Liang, the Commission's secretary, remarked that "just as the

107 Ibid., 9.

'0' Ibid., 11 The draft convention and commentary have been reprinted by W.S

Hein in the Harvard Research in International Law (2008) The text of the draft

convention appears below as Appendix 11

109 Ibid., 167 The draft convention and commentary have been reprinted by

W.S Hein in the Harvard Research in International Law (2008) The text of the

draft convention appears below as Appendix 12

110 Ibid., 827 The draft convention and commentary have been reprinted by

W.S Hein in the Harvard Research in International Law (2008) The text of the

draft convention appears below as Appendix 13

111 Deak and Jessup, Collection of Neutrality Laws, Regulations and Treaties of

Various Countries (1939).

112 Kenny, supra n 2, 328-329.

11' Ibid., 328

Harvard Research on International Law

original draft had been of great assistance to the Codification

Conference at The Hague in 1930 and to the learned world in general,

a revised version might also be of general service to both to the

Commission and to the public."'1 14 Harvard Law School appointed

Louis B Sohn and R R Baxter as rapporteurs and a distinguished

advisory committee, including two scholars who had been involved in

the 1929 project 15 The resultant Draft Convention on the

Interna-tional Responsibility of States for Injuries to Aliens 16 was the subject

of a presentation to the Commission by Sohn in June 1961117 The

document, intended as a revision of the 1929 Draft Convention, was,

in the words of Special Rapporteur Roberto Ago, "an entirely new

draft."1 18

The Personnel of the Harvard Research

What is particularly striking about the Harvard Research is thecaliber of the participants It is hard to imagine of any American inter-

national law "name" of the 1920s and '30s who was not involved In

all, in the twelve years of the existence of the Harvard Research, a

massive 102 individuals participated as reporters, advisors or research

assistants-and that total does not include those others who served on

the Research's Advisory and Executive Committees

Within the thirteen projects in the Harvard Research, some duals participated in more than one project Table 1 indicates the

indivi-number of individuals who participated in between one and eight

projects; no one participated in more than eight projects

114 1956 ILL.C Yb 228.

15 Quincy Wright and, until his death in 1958, Clyde Eagleton; Eagleton is the

author of one of the seminal books on State responsibility, Responsibility of

States in International Law (1928).

116 U.N Doc A/CN.4/217 and Add.1 See Sohn and Baxter, Responsibility of

States for Injuries to the Economic Interests of Aliens, 55 Am J Int'l L 545

(1961); the text of the Draft Convention appears at 548 The 1961 draft

Conven-tion is discussed in Chapter 3, infra.

117 1961 II.L.C Yb 196 See also the Report of the International Law

Commis-sion on the Work of its 13th SesCommis-sion, 1961, 1961 III.L.C Yb 88 at 129.

"' 1961 IlL.C Yb 196.

The Harvard Research: Genesis to Exodus

Phillip C Jessup, Jesse S Reeves and George G Wilson Lester H

Woolsey was involved in seven projects Six individuals were

involved in six projects: Abraham H Feller, Green H Hackworth,

Charles Cheney Hyde, Arthur K Kuhn, George W Wickersham and

Quincy W Wright And five individuals were involved in five

projects: Edwin Borchard, Charles C Burdick, Edwin D Dickinson,

Clyde Eagleton and James W Garner

Perhaps unsurprisingly, among the elite group of scholastic vists are to be found the vast majority of the reporters Only Jessup

recidi-acted as reporter for more than one project; he was reporter in respect

of the competence of courts in regard to foreign States, neutrality and

aggression Otherwise, Reeves (diplomatic privileges and

immuni-ties), Wilson (territorial waters), Feller (co-reporter on judicial

assist-ance), Wright (consuls), Borchard (State responsibility), Burdick

(extradition), Dickinson (jurisdiction in regard to crime) and Garner

(treaties) were appointed as reporters in respect of one Harvard

project Of the remaining projects, the reporter on nationality, Richard

W Flournoy Jr., served as an advisor on two other projects (consuls

and treaties), as did the reporter on piracy, Joseph W Bingham

(competence of courts and jurisdiction in regard to crime), and the

co-reporter on judicial assistance, James G Rogers, served as an advisor

on the neutrality project

Table 2 shows the career provenance of the participants in theHarvard Research The legal academy provides most of the personnel

involved in the Research, followed in numbers by practitioners and

then by government employees

119 Source: General Introductions, 23 Am J Int'l L (Spec Supp.) I at 7 8

(1929), 26Am J Int'IL (Supp.) I at 10 12 (1932), 29Am J Int'IL (Supp.) I

at5 7(1935),33Am J Int'IL (Supp.) I at6 9 (1939).

Harvard Research on International Law

Table 2 Provenance of Participants 12 0

The law professors who participated in the Harvard Research camefrom a range of the leading law schools Eleven came from law

schools within the University of California system, five from

Columbia, Harvard (or Radcliffe), Illinois and Stanford, four from

Michigan and three from Cornell and Princeton In all, twenty-six

academic institutions were represented While the Harvard and

Radcliffe representation appears modest, they provided experts who

participated in a large number of projects (George G Wilson in eight,

Abraham H Feller in six, Manley 0 Hudson in three and Benjamin

Akzin in two); and, in addition, provided two reporters (Wilson as

reporter for territorial waters and Feller as co-reporter for judicial

assistance)

Among those in government service, the State Department wasrepresented on ten Harvard projects, most particularly by the redoubt-

able Green H Hackworth,121 who participated in six projects More

than a quarter of the participants were in private practice, including

George W Wickersham, who participated in six projects It was part

of the genius of the Harvard Research and of its director, Manley 0.

Hudson, to utilize practitioners of international law and private

practi-tioners in their work; the Harvard Research was never an exclusively

"academic" exercise

Inevitably, three individuals stand out in this Harvard galaxy of

talent, Manley 0 Hudson, George W Wickersham and Phillip C.

Jessup

Manley Hudson (1886-1960) not only initiated the HarvardResearch122 and directed its work for over twelve years, he was Bemis

Professor at Harvard from 1923 to 1954, a judge of the Permanent

Court of International Justice from 1936 to 1946 and a member of the

International Law Commission from 1949 to 1953 and its first

chair-man He was one of the foremost international law scholars of the

120 Source: id.

121 See Whiteman, Green Haywood Hackworth, 68 Am J Int'lL 91 (1974)

122 See n 1, supra.

The Harvard Research: Genesis to Exodus

20th Century 23 One of his principal missions, apparent in the

Harvard Research and in much of his scholarship, was to make

international materials available for scholarly and practical

analysis-to make the raw data of international law widely available Among his

voluminous publications are International Legislation (1931-1950),

World Court Reports (1934-1943), The Permanent Court of

Interna-tional Justice (1943) and two Collections produced in association

with the Harvard Research, of the Nationality Laws of Various

Coun-tries (with Flournoy, 1929) and of Diplomatic and Consular Laws

and Regulations (with Feller, 1933) It is little wonder that the

fore-most association of international lawyers, the American Society of

International Law, names its premier award for scholarship and

achievement in international law after Manley 0 Hudson.

While Hudson may have been the mainstay of the HarvardResearch, it could not have produced thirteen draft conventions and

commentaries in twelve years, in the face of some hostility at Harvard

law school,124 without George W Wickersham (1858-1936)

Identi-fying Wickersham as a practitioner hardly suffices:125 he was US

Attorney General from 1909 to 1913; he was the founding president,

from 1923 until his death, of the American Law Institute, on whose

restatement projects the Harvard Research was modeled; he was a

member of the League of Nations Committee of Experts for the

Codification of International Law, and a member of its subcommittee

on the territorial sea, from 1925 to 1928; he was the chair of the

Harvard Research Advisory Committee from 1927 to 1936 and an

advisor to six Harvard projects

Phillip Jessup merits special mention for the sheer volume of hiscontribution to the Harvard Research and for his achievements in

international law and diplomacy He was involved in eight separate

projects, five as an advisor and three as a reporter (extradition,

neutrality and aggression) Jessup (1897-1986) combined a career in

the academy, as professor on international law at Columbia

(1926-123 See the appreciations of Hudson in 74 Harv L R (1960) by Dean Griswold

(at 209), Milton Katz (at 214) and Julius Stone (at 215), by Philip Jessup in 54

Am J Int'l L 603 (1960) and by Ruth E Bacon in 54 Am Soc'y Int'l L Proc.

223 (1960)

124 Kenny, n 2 supra, 321-322.

125 See the appreciation by George Burlingham in 70 U.S L Rev 59 (1936).

Harvard Research on International Law

1951),126 with public service, being a US representative to both the

Security Council and General Assembly, and a seat on the

Interna-tional Court of Justice bench (1961 -1970).127

Two other individuals deserve special mention Eleanor WyllysAllen (1885-1979)128 was the only woman involved in the Harvard

Research, as advisor on the project on the competence of courts in

regard to foreign States After an education involving four

institu-tions, she completed a Ph.D on "Treatment of Enemy Merchant

Vessels in Port at the Outbreak of War," and worked in the Harvard

law library In 1933, while working for the Bureau of International

Research at Harvard, she published The Position of Foreign States

before National Courts, undoubtedly her entr6e to the Harvard

project Subsequently, she was curator of the foundational Olivart

Collection of International Law and, after 1945, a State Department

official Abraham Howard Feller (1905-1952), allocated here to the

academy for statistical purposes, was in fact much more than that in a

distinguished and ultimately tragic career Appointed an instructor in

international law at Harvard in 1931, he participated in five Harvard

Research projects as advisor and one as co-reporter (judicial

assis-tance) After World War ii, Feller joined the UN secretariat, and

became legal advisor to the Secretary-General He committed suicide

in 1951, in large part because of the stress of defending American

officials in the UN under investigation for subversion.129

The Impact of the Harvard Research

In attempting to assess the impact of the Harvard Research onsubsequent legal thought and legal developments, four issues were

126 Among his many publications are The Law of Territorial Waters and

Maritime Jurisdiction (1927), A Modern Law of Nations (1948), The Price of

International Justice (1971) and The Birth of Nations (1974).

127 See Schachter, Philip Jessup's Life and Ideas, 80 Am J Int'l L 878 (1986);

see also Jessup: Memorials and Reminiscences in ibid by Manfred Lachs (at

896), Stephen Schwebel (at 901), James Hyde (at 903) and Philip Jessup Jr (at

908).

128 The details of Allen's life have been gleaned from various sources by Wendy

Hitchcock, reference librarian at Lewis & Clark School of Law.

129 See Death of an Idealist, Time, November 24, 1952 See also Louis Sohn's

review of Feller's United Nations and World Community (1952), 66 Harv L.R.

1336 (1952 1953).

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 views expressed about the Harvard

Research by the International Law Commission; and the reliance

placed on the Harvard Research by the World Court in its judgments

and advisory opinions This legacy section concludes with a synopsis

of the views of the experts who wrote the ensuing chapters

Law reviews

Any assessment of the impact of the Harvard Research onsubsequent international legal thought and development has to begin

with the bald question of whether the thirteen Harvard projects have

made their way into scholarly writings In this first impact analysis,

an examination was made of the "raw" (unadorned and unevaluated)

citations to the Harvard Research in subsequent periodic literature

From Table 3, the most cited draft convention in law reviewarticles is the Draft Convention on Jurisdiction with Respect to

Crime, cited 261 times and as recently as 2006.130 The Draft

Conven-tion on Treaties appeared almost as often, and as recently as 2006.3

The frequently cited Piracy Draft Convention was cited at least twice

in 2006 132 Appearing least frequently were the Draft Conventions on

Judicial Assistance, Aggression, Consuls and Neutrality

130 Messigian, Love's Labour's Lost: Michael Lewis Clark's Constitutional

Challenge, 43 Am Crim L Rev 1241, 1252 (2006); Adler, Fighting Terrorism

in the New Age: A Call For Extraterritorial Jurisdiction over Terrorists, 18

U.S.F Mar L.J 171, 195 (2006); Podgor, A New Dimension to the Prosecution

of White Collar Crime: Enforcing Extraterritorial Social Harms, 37 McGeorge

L Rev 83, 97 (2006)

131 Shelton, Normative Hierarchy in International Law, 100 Am J Int'l L 291,

298 (2006)

132 Burgess, Hostis Humani Generi: Piracy, Terrorism and a New International

Law, 13 U Miama Int'l & Comp L Rev 293, 322 23 (2006); Bagaric & Morss,

In Search of Coherent Jurisprudence for International Criminal Law: Correlating

Transnat'lL Rev 157, 158 (2006)

Harvard Research on International Law Table 3 Number of References in Law Reviews 133

1 Jurisdiction with respect to Crime 263

their respective topics today A review of law review articles from

1929 to the present reveals that the Research and its draft

Conven-tions are cited at various intervals and frequencies, in a variety of U.S.

133 Source: databases of HeinOnline, Lexis/Nexis and Westlaw, using the search

engine of each Last accessed February 2007.

134 See, e.g., Book Reviews, 30 Colum L Rev 142 (1930)(reviewing the first

phase of the Harvard Research, which included draft Conventions on (1)

Nation-ality, (2) Territorial Seas, and (3) Responsibility of States for Injuries to

Foreigners); Reviews of Current Periodicals, 14 B.YLL 225 (1933) (reviewing

the second phase of the Harvard Research, which included draft Conventions on

(1) Diplomatic Privileges and Immunities, (2) Legal Position and Function of

Consuls, (3) Competence of Courts in regard to Foreign States, and (4) Piracy);

Fraser, The Research in International Law-Third Phase, 21 A.B.A J 728

(1935) (reviewing the third phase of the Harvard Research, which included draft

Conventions on (1) Extradition, (2) Jurisdiction with respect to Crime, and

(3) Treaties); and Reviews, 50 Yale L.J 1136 (1940) (reviewing the final phase

of the Harvard Research, which included draft Conventions on (1) Judicial

Assistance, (2) Rights and Duties of Neutral States in Naval and Aerial War,

(3) Rights and Duties of States in Cases of Aggression).

The Harvard Research: Genesis to Exodus

and international journals.1 35 The range of journals that contain

articles citing the Harvard Research is broad In the United States,

well over fifty law school journals,1 36 as well as publications of the

American Society of International Law, and the U.S Department of

State Bulletin, have cited to the Harvard Research on International

Law

Texts and treatises

There are innumerable texts on international law and its varioussubdivisions, including areas of international law that were the subject

of the Harvard Research Rather than attempting to survey all

interna-tional law texts and treatises, or the specialist works in the areas

covered by the Harvard Research,1 37 it was decided instead to focus

on a few of what might be called the "modern classics" on general

international law The selection is necessarily subjective, and is

intended to demonstrate that parts of the Harvard Research have been

regarded by a range of respected scholars as important The selected

modern classics are the Max Planck Encyclopedia of Public

Interna-tional Law, 1 3 8 Brownlie's Principles of Public International Law, 1 39

O'Connell's International Law, 140 Oppenheim's International Law 1 4 1

and the Restatement (Third) of Foreign Relations Law of the United

States 142

135 Among the prestigious international journals containing articles referencing

the Harvard Research are the American Journal of International Law, Australian

Yearbook of International Law, British Yearbook of International Law and

Canadian Yearbook of International Law.

136 These journals include general law journals and reviews, as well as journals

specializing in topics ranging from maritime law to environmental and human

rights law

137 Any review of the use of the Harvard Research in specialist works is left to

the experts who wrote the ensuing chapters

138 Encyclopedia qf Public International Law (Bernhardt, ed., 1992-2000).

139 Brownlie, Principles of Public International Law (6th ed 2003).

140 O'Connell, International Law (1965).

141 Oppenheim, International Law, Vol 1 (Peace; Jennings & Watts, eds., 9th

ed 1992)

142 American Law Institute, Restatement (Third) of the Foreign Relations Law of

the United States (1987).

Harvard Research on International Law

The four-volume Encyclopedia of Public International Law,

produced under the auspices of the prestigious Max Planck Institute

for Comparative Public Law and International Law, contains articles

on a broad range of international law topics While, in general, the

articles rely on treaties and other "hard" law sources of international

law, some articles contain a section on the historical development of

the law and codification efforts, in which the Harvard Research is

referenced The Harvard draft Convention on Nationality's examples

of international law limitations on a State's power to confer

nation-ality are mentioned, although the author also acknowledges that

"[t]hese examples are cited affirmatively by most writers but in

practice no such cases have occurred 143 The draft Convention on

Diplomatic Privileges and Immunities is described as having "great

influence on the work of the International Law Commission (ILC)

and on the United Nations Conference, which adopted the Vienna

Convention on Diplomatic Relations in 1961 .,144 The draft

Conven-tion on the PosiConven-tion and FuncConven-tion of Consuls is referred to as a

"noteworthy effort" which, among other private efforts at

codifica-tion, "undoubtedly had considerable influence on both the theory and

practice of consular law 145

The draft Convention on Piracy "became the basis for the sions proposed by the International Law Commission of the United

provi-Nations for inclusion in a general convention on the law of the high

seas."'1 4 6 The article also cites to the draft for the proposition that there

may be no public international law of piracy that is separate from

specific treaties between States, and that "all the arguments about it

relate to conflicting municipal law usages and questions of

jurisdic-tion." 147 The draft Conventions on Jurisdiction with regard to Crime,

143 Randelzhofer, Nationality, in 3 Encyclopedia of Public International Law,

504

144 Denza, Diplomatic Agents and Missions, Privileges and Immunities, in 1

Encyclopedia of Public International Law, 1041.

145 Economidbs, Consular Treaties, in 1 Encyclopedia of Public International

Law, 768

146 Rubin, 3 Encyclopedia ofPublic International Law, 103 8.

147 Ibid, 1039

The Harvard Research: Genesis to Exodus

and Rights and Duties of Neutrals are also mentioned in articles on

these topics 148

The draft Convention on Treaties receives the most attention It isreferred to in the articles on treaties,149 conflicts between treaties,150

and effects of territorial changes.15' In discussing the evolution of

maxims on conflicts between treaties, the draft Convention on

Treaties appears in discussions of lex posterior and lex prior In

reference to the latter, the draft Convention's stance concerning

treaties with divergent membership is validated as consistent with the

way judicial precedent has approached the issue by refraining from

putting the matter in terms of essential validity, but still conferring

priority on the earlier treaty.152

In Ian Brownlie's internationally respected Principles of Public

International Law, the draft Conventions on Responsibility of States,

Diplomats, Consuls, Extradition, Jurisdiction with respect to Crime,

and Treaties are all cited sparingly The Harvard Research draft on

Territorial Waters is cited generally on the subtopic of the passage of

warships,153 but does not appear in the general citation for the major

topic of territorial waters The draft Convention on Diplomatic

Privileges and Immunities is cited in a discussion of art 7 of the

Vienna Convention,1 54 stating that several delegates to the Convention

would have had the article interpreted in accordance with the

prevailing custom, which is discussed in the Harvard draft

Conven-tion The Harvard Research on the Status and Functions of Consuls

appears in the general citation for the topic,1 55 as does the Harvard

work on Treaties.156

148 Oxman, 3 Encyclopedia of Public International Law, 56; Dinstein, Neutrality

in Sea Warfare, in 3 Encyclopedia of Public International Law, 566.

14' Bernhardt, Treaties, in 4 Encyclopedia of Public International Law, 926.

150 Karl, Treaties, Conflicts Between, in 4 Encyclopedia of Public International

156 Ibid., 579 (appearing in the bibliographical footnote to the introduction of the

chapter: The Law of Treaties)

Harvard Research on International Law

The Harvard Research is cited as a reliable source throughout

Daniel P O'Connell's International Law While a few draft

Conven-tions do not appear,1 57 others are cited as authority, with several

discussed in some detail The draft Convention on Jurisdiction with

Respect to Crime appears in sections on crimes committed by

na-tionals and crimes committed by aliens; and it is discussed in sections

on the passive personality principle,158 the protective principle,159 and

illegal seizure of persons.1 60 The Harvard draft on Extradition is cited

throughout the sections on the topic, 161 and is discussed extensively in

the text.162 The draft Convention on Piracy is also cited and discussed

in sections on the definition of piracy163 and the basis of piracy

jurisdiction.1 64 O'Connell quotes the Harvard Research's definition of

a treaty in the introductory material,1 65 and then continues to cite to

and discuss the Research on Treaties throughout the chapters on the

topic Although the Harvard Research is generally cited favorably,

there is at least one instance where O'Connell indicates that particular

comments by the Research "must be accepted with caution."' 66

Few would question the inclusion of Oppenheim's International

Law among any list of modern classics in international law It cites to

the Harvard Research as authority in several areas, including State

responsibility,1 67 territorial waters,1 68 diplomatic privileges and

immu-157 Namely, the draft Conventions on Nationality, Judicial Assistance and Rights

and Duties of States in cases of Aggression

158 O'Connell, supra n 140, 901

159 Ibid., 902, 903.

160 Ibid., 905.

161 Ibid., 792.

162 The Harvard draft appears in discussion of the following extradition-related

topics: The Acts for which Extradition is Available, ibid., 794, 796; Extradition

of Nationals, ibid., 798, 790; Political Offenders, ibid., 790, 802; Procedures for

Extradition, ibid., 803, 804; Extradition within the British Commonwealth, ibid.,