In furtherance of the International Convention approach, the Comité Maritime International, met in subcommittee at Antwerp, Belgium, in June of 1959 for the purpose of framing a proposed draft convention relating to the liability of operators of nuclear ships. The American admiralty bar was represented at the Antwerp meeting by delegates from the Maritime Law Association of the United States. The proposed draft convention was then submitted to the plenary session of the Comité which met at Rijeka, Yugoslavia, in September of 1959 where it was approved and adopted with only minor changes. In the course of these meetings there existed a surprising unanimity of opinion with respect to the question of strict liability notwithstanding the differences between the Anglo-Saxon and Continental systems of law. It was found that many of the Civil Codes of the Continental Countries apply the principle of strict liability in appropriate circumstances, and that the holding of a person responsible for the presence upon the seas of a potentially dangerous thing (a marine nuclear reactor) would be by no means a novel or revolutionary concept.

ACCORDINGLY, THE COMITÉ's draft convention accepts the proposition that the operator of a nuclear ship should be held absolutely and solely liable for nuclear damage, including injuries, upon proof that the cause was a nuclear incident involving the fuel of the nuclear ship or radioactive waste products produced in the ship. Exception would be made in cases of nuclear damage "due to war, hostilities, civil war or insurrection." It will be noted that, by this proposal, liability would not only be absolute, but also sole. It was the conclusion of the Comité that the interests of the victims of a possible marine nuclear accident would be served best by coalescing their rights to compensation upon one party. This suggestion would obviate a multiplicity of actions, some of which might require proof of negligence and, at the same time, tend to eliminate many knotty jurisdictional problems. Another consideration was the desire to protect non-nuclear ship operators from potentially high liability for nuclear damage even in instances where such nuclear damage would arise from the negligence of those in charge of the non-nuclear ship. If the rule were otherwise, non-nuclear ship operators would be obliged to carry extended insurance covering

5. An international organization of maritime law associations founded in 1896 to "further by conferences, publications and other werks, the unification of maritime law."

this new risk upon the seas. The result would be a considerable burden in increased marine insurance premiums with no particular benefit inuring to the non-nuclear ship operator as quid pro quo. Two exceptions would be made to the sole liability principle. In cases where the nuclear damage is the result of the act or omission of another, done with the intent to cause such damage, the operator of the nuclear ship would have a right of recourse against the wrongdoer. The other exception would apply where a right of indemnity is expressly provided by contract.

After considerable debate it was agreed that, as a concomitant of the above principle, the operator of a non-nuclear ship should be entitled to recover from the nuclear ship operator for nuclear damage suffered by the non-nuclear ship even in instances where such damage was caused by the negligence of the non-nuclear ship. At first impression, the proposition that a tortfeasor should not be allowed to profit by his own wrong would seem attractive. If a negligent non-nuclear ship operator were barred from recovery in such a situation, however, the same principle might obtain in certain cases of damage to shoreside installations. For example, if a harbormaster or pier superintendent were to give negligent instructions to a nuclear ship during docking operations, the port authority might conceivably be barred from recovery for resultant damage to the port or its installations. It was agreed that to provide otherwise would open up a vista of uncompensated nuclear damage which would probably not be tolerated by public opinion.

As a second major proposition, the draft convention provides that the liability of the operator of a nuclear ship should have some maximum limitation as to both time and amount. The time limitation presently proposed is ten years from the date of the nuclear incident. Inasmuch as the actual explosion of the fuel element of a marine reactor is considered virtually impossible, the only conceivable cause of nuclear damage would be the escape of radioactive particles due to one of the following:

(a) Improper management of the reactor
(b) Collision

(c) Stranding or sinking (with the reactor or its
containment vessel breaking up, possibly years
after the accident).

IF THE LIABILITY of the operator were to continue for ten years from the date at which the reactor commenced to emit radiation (as in (c) above) the total period of liability would far ex

ceed ten years from the date of the accident. It was, therefore, proposed that the limitation period should run for ten years from the date of "loss or abandonment" with a further provision that "each Contracting State may establish a period of not less than two years for the extinction of the right from the date of which the individual or the person suffering damage has knowledge or from the date when he reasonably ought to have known of the damage, provided that the said period of ten years shall not be exceeded." This would allow each Contracting State considerable latitude in establishing its own limitation period.

The question of the maximum amount of liability was left open in the draft convention. The Comité was of the unanimous opinion that, if absolute and exclusive liability is to attach to the operator of a nuclear ship, such liability must have some maximum limitation. It was agreed further that the limit must be high enough so as to make nuclear ships acceptable in all the ports of the world. Maximum suggested limits of liability ranged from $100,000,000 to $500,000,000 (the latter is the aggregate amount presently available in the event of a nuclear incident involving NS SAVANNAH as provided by 1958 amendment to the Price-Anderson Act.) The nuclear ship operator would be required to obtain the maximum amount of insurance coverage available in the commercial market (currently estimated at about $30,000,000) or establish equivalent financial security in the case of a self-insurer. This insurance fund would then be supplemented to the upper limit of liability by indemnity to be provided by the licensing State.

The foregoing are the basic principles of the draft convention proposed by the Comité. There are, of course, other minor recommendations of no less importance. For example, the draft provides that in cases where damage is caused or contributed to by a nuclear incident and by other (non-nuclear) causes which are not reasonably separable, all damage shall be deemed to have been caused exclusively by the nuclear incident and, in cases where two or more nuclear incidents are involved and the damage is not reasonably separable, the operators of the nuclear ships concerned would be jointly and severally liable.

6. 71 Stat. 576; 72 Stat. 525.

THE DRAFT CONVENTION also provides that actions for compensation shall be brought, at the option of the claimant, either in the courts of the State which licenses the nuclear ship or in the courts of the State where the accident occurred. In the latter case, final judgments would become enforceable in the courts of the licensing State as soon as "the requirements of the law of the licensing State have been complied with" (vis jurisdiction, notice, opportunity to be heard). When these requirements are met, the merits of the case would not thereafter be the subject of further proceedings. These jurisdictional provisions were included to meet obvious Constitutional objections in certain countries, the United States in particular.

Whether or not nuclear warships and troopships would be included in the convention raises a major issue. In Article I of the draft, a nuclear ship is defined as "any ship equipped for the utilization of nuclear fuel." The Comité has also, with good foresight, appended to the convention a recommendation that nothing in the draft is intended to authorize or require inspection of military ships or auxiliaries nor create the right to attach such ships. The door is thus left open.

IN CONCLUSION, UPON careful examination of the Comité's draft convention, the fundamental differences between the legal and practical problems implicit in the operation of the nuclear ship vis-a-vis the land-based reactor become clear. The inclusion of nuclear ships in an international agreement designed basically to provide for the liability of land-based reactors would be an oversimplification of a somewhat esoteric problem complicated further by existing admiralty law and marine insurance principles. What is needed, and urgently, is a multi-lateral international agreement devoted exclusively to the liability of nuclear powered ships. spadework has already been done by the Comité Maritime International which has managed to produce a draft convention which reflects a surprisingly realistic and forward-looking approach. In the field of international maritime law, time is now waiting for "custom" to catch up. This can be accomplished most expeditiously by early international agreement. The future of the nuclear ship hangs in the balance.

The

the Amendment would eliminate the foregoing italicized words and thus the "self-judging" limitation of the United States' declaration of acceptance of compulsory jurisdiction.

This change would thus enable the World Court to decide whether it had jurisdiction in the event the United States considered that a dispute involved a matter "essentially within its domestic jurisdiction" and the plaintiff litigant country argued contrarily, in accordance with the mandate of Article 36 (6) of the Court's statute.1 In short, the United States might, after repeal, be forced to litigate its position in a dispute which it considered to be essentially within its domestic jurisdiction but which was not so considered by the Court.

The "Humphrey Resolution" has received impressive support, including that of the President and Vice-President of the United States, the Secretary of State, the Attorney General, prominent newspapers such as the New York Times and the Washington Post, a wide group of law professors and publicists and the American Bar Association.2

1. Article 36(6) of the Court's statute reads: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

2. The "Report on the Self-Judging Aspect of the United States' Domestic Jurisdiction Reservation with Respect to the International Court of Justice", August 1959, prepared by the Section of International and Comparative Law of the American Bar Association, recommended elimination of the "self-judging” language. The ABA so resolved. References to this Report, which ably and fairly summarizes the arguments on both sides of the issue, will be made herein to "ABA Report, p. —. 99

This support for repeal of the "self-judging" phrase has marshalled a number of arguments:

A It is logically offensive to right-thinking men that a nation, any more than a man, should be the judge in its own case."

B Any country which is brought before the Court by the United States (acting as plaintiff) can invoke the "self-judging" domestic reservation against the United States because of the reciprocal nature of consent to the Court's jurisdiction (Article 36(2)). This means that the United States has, by its own reservation, substantially curtailed its ability to secure adjudications of its rights in relation to other countries in circumstances where the United States by virtue of its large overseas financial and other interests, would benefit from an enlarged scope of untramelled access to the Court.

C Because of imitation by other countries of the "selfjudging" reservation, even those countries which have accepted the Court's compulsory jurisdiction (less than half of the present United Nations membership) have done so in a manner which, potentially at least, can result in a serious limitation of the effective jurisdiction of the Court. Such a situation makes protestations regarding United States concern for the "rule of law" sound peculiarly hollow.

This then is the framework of the argument for repeal. Of course it is no catalog of reasons. But, what about the opponents of repeal? Their arguments have not been as widely heard in recent years, but they probably remain what they were in 1946 when the Connally Amendment was adopted. Briefly, they were:

A It is unclear how the Court would decide a close question as to whether a dispute involved a matter "essentially" within the domestic jurisdiction of the United States. This is especially true "in view of the dependence of the meaning of 'domestic' on the development of international law, and, in turn, the uncertainty of international law" on many questions. Consider for

3. This and the succeeding paragraph are based upon the ABA Report, pp. 54-57. An extensive bibliography appears at pp.

66-73.

example immigration and the treatment of racial or religious problems."

B It is desirable to safeguard the vital interests of the United States in order to prevent erosion of those interests in the very process as well as in the possible results of litigation. Since it is not possible to define and catalog such interests in advance and in vacuo, a "veto" power is thus necessary not only to prevent vital political and economic disputes from being regarded and decide as "legal disputes", but also to enable the United States unilaterally to refuse to litigate a "legal" dispute regarding a matter clearly governed by treaty, and therefore clearly not a matter of domestic jurisdiction, where vital interests are considered to be involved. C Consequently, runs the argument of opponents of repeal, not to reserve the right to refuse to permit a court of "uncertain quality" and perhaps subject to political pressures to decide whether a dispute involving a matter essentially within domestic jurisdiction is too risky a business for the United States.

Despite the impressive array of proponents of repeal and their arguments, a straight-out repeal is not now probable. Until there is sufficient assurance that repeal will not in some unforecastable ways place the nation's "vital interests" in jeopardy, straight out repeal will remain improbable. Such assurances, moreover, will probably not be, and indeed in all cases cannot be forthcoming.

An example of what some may consider a "vital interest" is the Panama Canal. There is little doubt that many types of disputes involving the Panama Canal would not be con

4. To the extent that a "domestic" matter, such as whether a person possesses the nationality of a particular nation, has been made the subject of international commitments, it is no longer wholly domestic for the purposes of Article 36 (2) since the interpretation of such commitments falls squarely within Article 36(2) (a) or (b) of the Court's statute. See Nationality Decrees Issued in Tunis and Morocco, P.C.I.J., Advisory Opinion Feb. 7, 1923, P.C.I.J. Ser. B, No. 4; I Hudson, World Court Reports 143. The control of entry and exit of persons to and from a nation's jurisdiction is at present a domestic matter except to the extent it may have been "internationalized" as a result of international engagements made by the nation. The treatment of minority alien, racial or religious groups cannot now be said to remain wholly domestic in view of the actions of the United Nations directed against South Africa's treatment of its Indian minority despite the vigorous contention that this was a matter falling within Article 2(7) of the Charter. Article 2(7) states that, "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. . .”. South Africa's treatment of Indians, "coloureds” and “natives" has an impact outside its borders which is relevant to the maintenance of international peace and security.

5. The relations of the United States and Panama in respect of the Canal and the Zone are governed by a series of conventions and treaties, especially including: The Convention of 1930 (T.S. 431, 33 Stat. 2234); the Convention of 1914 (T.S. 610, 38 Stat. 1900); the General Treaty of 1936 (T.S. 945, 53 Stat. pt. 3, 1807); and the Treaty of 1955 (T.I.A.S. 3297). It would indeed be difficult to imagine a dispute between the two countries relating to the Canal or the Zone which did not involve in some way the interpretation or application of some provision of an international engagement.

sidered by any Court to be essentially within the domestic jurisdiction of the United States. The rights of the United States in and to the Zone are accorded by international treaties and clearly fall within the Court's jurisdiction under Article 36 (2) of the statute. Under the existing United States acceptance of compulsory jurisdiction, only by invoking the "self-judging" reservation (the Connally Amendment) could the United States escape litigation and the United States might indeed find difficulty in classifying a Panama Canal dispute as "essentially within the domestic jurisdiction." Clearly, if the Connally reservation were repealed, there could be litigation on this question and the United States could lose a particular lawsuit. Proponents of repeal freely admit as much but add that such is the price of any fully meaningful system of compulsory jurisdiction. The rejoinder that the "price", depending as it does on a value judgment in the face of manifold uncertainties as to the nature and protection of "vital interests" in a rapidly changing world, may be too high and this ends any fruitful argument.

THE FOREGOING DISCUSSION raises a more central question for neither the "Connally Reservation" or its contemplated repeal deals with the present interests of the United States in this subject. Repeal by itself does not take adequate account of the concern of some that "vital interests" of the United States may in uncertain ways be adversely affected by the litigation process. Retention of the self-judging domestic jurisdiction reservation does not adequately protect "vital interests" within its narrow frame of reference. A domestic jurisdiction reservation does not appear sufficient to today protect our "vital interests" in light of the method by which these interests have been handled by the United States since 1946, and these circumstances which have produced this method and which have existed during most of the intervening period since 1946 will probably persist for some time to come. In addition to this shortcoming, the domestic reservation also pulls within its ambit of "protection" matters which are not vital interests of the United States at all and which the United States has been and would be prepared in the future to see subjected to scrutiny by litigation.

6. The Court's jurisdiction regarding legal disputes, under the compulsory jurisdiction declarations pursuant to Art. 36(2) extends, inter alia, to "the interpretation of a treaty", and to "any question of international law."

It thus appears that it would be within the interest of the United States to exclude "vital interests" from the litigation process but to widen the court's jurisdiction in other areas. This can best be met it is submitted by eliminating the Connally Reservation and substituting in its place a non self-judging "national security reservation."

On July 10, 1959 the French Government filed a new submission to compulsory jurisdiction, which withdrew its self-judging domestic jurisdiction reservation, and substituted for that reservation one which excepted from the French submission to compulsory jurisdiction, "disputes arising out of any war or international hostilities and disputes arising out of a crisis affecting the national security or out of any measure or action relating thereto." "

The French national security reservation excepts from submission to compulsory jurisdiction any dispute arising out of any measure or action relating to the national security of France, whether involving "domestic" jurisdiction, or a treaty, or a non-treaty question of international law or any other matter which would bring the dispute within the ambit of Article 36 of the Court's statute. It is thus far more protective of the "vital interests" of France than the former self-judging domestic jurisdiction reservation. The French recognized that it is politically almost impossible to assert the self-judging domestic jurisdiction reservation in a case which involves for example a question of interpretation of a treaty which is undeniably relevant to the case, or one involving Algeria, since the United Nations had often rejected the French view that Algeria was a domestic French question. Under the 1959 French declaration the International Court is without jurisdiction in such case if France invokes the security exception and there is a rational connection between the French action complained of and her security.

The French 1959 security exception is nonself judging in terms. Does this make the French submission too risky? The World Court is an institution whose very existence as a dispute-settling mechanism depends upon consent-upon voluntary submissions to compulsory jurisdiction which can be withdrawn at any time. It is not conceivable that the Court would second-guess a country which asserted with even a semblance of rationality that the dispute arose out of a measure or action relating to its national security.

7. Reprinted at ABA Report, p. 80 in translation.

USING THE FRENCH approach to the compulsory jurisdiction question, if it be assumed arguendo that a dispute would arise concerning the Canal Zone, it is clear that a national security reservation would be more protective in fact to our national interests of security than the Connally Reservation. This is because the United States simply could not, in realistic political terms, face the world with an assertion that any question relating to the Zone involved a matter essentially within its domestic jurisdiction.

Indeed the Court, out of concern for its precarious position, can be expected to lean backwards to avoid substituting its judgment on such a sensitive issue as national security for that of the country asserting it if even a colorable case were asserted as to the relationship between such securities and the dispute brought before the Court. The Court itself has stated that it would not examine motives or the "good faith" of actions of countries litigants before it."

A more legitimate criticism would appear to lie not in the area of riskiness, but rather on the ground that such a national security reservation is self-judging in effect if not in language, and thus would enable an even wider area of possible disputes to be withheld effectively from the Court's processes than does the present selfjudging domestic jurisdiction reservation.

How legitimate would this criticism be? It is legitimate in a narrow sense-looking solely at compulsory jurisdiction to settle international legal disputes-but it fails utterly to relate this issue to the wider question of the respects in which it is inappropriate or appropriate to attempt to produce curtailments of a nation's freedom of action in an interdependent world, and of the most successful ways of doing it where it is appropriate. That is to say, it misses the main point in the successful development of sensible international relations and law.

In each of the seventeen bilateral treaties of friendship, commerce and navigation, negotiated by the United States since the end of hostilities in World War II, there is a provision which reads: "

9

The present Treaty shall not preclude the application

8. The Asylum Case, I.C.J. Reports, 1950, p. 266, 287; see also Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations, I.C.J. Reports 1948, p. 57, 61.

9. Art. XXI, Treaty of Friendship, Commerce and Navigation between the United States and Japan, signed April 2, 1953, and entered into force Oct. 30, 1953, T.I.A.S. 3863. See U.S. Dept. of State Pub. No. 6565, Commercial Treaty Program of the United States (1958).