LLM Seminar Paper

Law of the Sea

3 June 1997

Rex Sinnott

I INTRODUCTION

The Freedom of the High Seas is not an absolute concept, and although now entrenched in the United Nations Convention on the Law of the Sea (UNCLOS)⁽²⁾ has not always been the guiding philosophy of nations with an interest in matters maritime. Following a brief historical survey of the law pertaining to the open sea, this paper outlines the current rights and obligations of states and ships and highlights some of the major issues arising from the Articles of the Convention. A conclusion then drawn is that the current law applying to the high seas lays the foundation for a comprehensive legal regime, which while being reasonably sound, remains just a foundation.

II HISTORICAL SETTING

In ancient times, there were no restrictions on sailing the open seas, and this situation continued until well into the middle ages.⁽³⁾ Venice, Genoa, Sweden, Denmark and Great Britain claimed sovereignty over parts of the sea; and Portugal and Spain, taking their authority from Papal Bulls of 1493, claimed sovereignty over vast bodies of water.⁽⁴⁾ In 1580 Elizabeth I answered a Spanish complaint about Drake's voyage by affirming the freedom of the seas, but after 1609 Stuart politics extended the "closed sea" principle from Scotland to England and Ireland.⁽⁵⁾ After the 17th century, there was a major shift from policies favouring mare clausum (closed sea) to those espousing freedom of navigation, as favoured by the Dutch. Grotius in his seminal work Mare Liberum ⁽⁶⁾ proposed that every nation was free to travel to every other nation, and to trade with it; this view survived strong initial opposition to eventually turn the tide against the restrictive policies favoured by Selden in Mare Clausum.⁽⁷⁾ By the late 18th century the cannon-shot rule prevailed, and a symbolic end to the claims to maritime sovereignty over the seas came in 1805 when the British quietly dropped the "flag ceremony",⁽⁸⁾ to become instead an advocate for freedom of the seas. In the 19th century the principle of freedom of the seas continued to gain support, especially from Britain, France and the U.S.A. on the basis of their interests in commerce and naval power.

III THE LAW RELATING TO THE HIGH SEAS

A Background

The rules regulating the conduct of ships on the high seas have long been regulated by customary international law, supplemented by bilateral and multilateral treaties, and conventions relating to specific issues. The preamble to the 1958 Convention on the High Seas, the first attempt at establishing a comprehensive legal regime, recognised that the provisions adopted were generally declaratory of established principles of international law;⁽⁹⁾ UNCLOS in 1982 mainly follows the 1958 Convention in relation to the high seas, with necessary adaptations to suit changed circumstances and new elements (such as Exclusive Economic Zones) in the law of the sea. However, the freedom of the high seas is subject both to the Convention and to other rules of international law.⁽¹⁰⁾

B UNCLOS 1982

Prior to UNCLOS, the high seas covered approximately 70% of the Earth's surface. The implementation of Exclusive Economic Zones shrank the high seas coverage to around 42%,⁽¹¹⁾ still by far the largest surface area covered by a uniform legal regime.⁽¹²⁾

The High Seas provisions to be considered here are in Part VII, Section 1 (General Provisions), Articles 86 - 115.⁽¹³⁾

1 General provisions (Articles 86-89)

Article 86, in contrast to the 1958 Convention,⁽¹⁴⁾ does not define the term "high seas". Instead, it declares where the provisions of this Part apply, rather than the status of the high seas, by listing those bodies of water where it does not. Significantly, this Article links to Article 58 (Exclusive Economic Zone) which incorporates the provisions of Part VII (sections 88-115) so far as they are compatible with EEZ rules. This is a clear indication that the high seas and the area now incorporated in the EEZs continue many basic rules associated with the traditional freedom of the seas.

Article 87, as in the 1958 Convention (Article 2), declares that the high seas are open to all States, the freedoms comprising inter alia the freedom of navigation; of overflight; to lay submarine cables and pipelines,⁽¹⁵⁾ and of fishing.⁽¹⁶⁾ New are the freedoms to construct artificial islands⁽¹⁷⁾ and to scientific research.⁽¹⁸⁾ These rights carry corresponding obligations to respect the rights of other States - a theme which pervades not only this Part but the entire Convention.

Article 88 reserves the high seas for peaceful purposes, and Article 89 expressly invalidates any State claims to sovereignty over the high seas.

2 Rights and obligations (Articles 90 - 98)

The basic right of States to sail ships flying their flag⁽¹⁹⁾ is accompanied by the right (but not an obligation) of the flag state to exercise penal or disciplinary responsibility. Where collisions or incidents of navigation are involved, this authority is shared with the State of which the person involved is a national.⁽²⁰⁾ However when an incident results in loss of life or serious injury to a foreign national, or serious damage to ships or installations of another State or to the marine environment, an investigation is mandatory. Co-operation in the inquiry with any other State involved is required.⁽²¹⁾

These rights are accompanied by duties to fix conditions for registration of ships, subject to a genuine link existing between State and ship.⁽²²⁾ In addition, States must exercise control in administrative, technical and social matters concerning ships flying its flag, including maintaining a register of ships and ensuring safety at sea in conformance with generally accepted international standards.

There is a duty on all ships to fly only one flag,⁽²³⁾ and to render assistance to persons or ships in distress without endangering itself or its crew or passengers.⁽²⁴⁾ A right of immunity from the jurisdiction of States other than the flag State is granted only to warships⁽²⁵⁾ and ships on government non-commercial service.⁽²⁶⁾

3 Dealing with prohibited activities (Articles 99-111)

The traditional obligation on States to prohibit the transportation of slaves is retained⁽²⁷⁾ but as with the new duty to co-operate with other States in the suppression of the illicit drug trade,⁽²⁸⁾ State jurisdiction remains restricted to its own ships. In contrast, concomitant with the duty to suppress piracy⁽²⁹⁾ and the right of hot pursuit by a coastal State from its own waters⁽³⁰⁾ are rights of jurisdiction over the pirates and their ship, or the foreign ship suspected of a violation of the law, as the case may be.

A further duty, of lesser significance now than when the Convention was promulgated, is for States to co-operate in suppression of unauthorised broadcasting from the high seas.⁽³¹⁾

The "right of visit"⁽³²⁾ justifies a warship (or military aircraft, or an authorised and marked government ship or aircraft) in boarding a ship (not being a ship entitled to immunity) on the high seas in specified circumstances. There must be reasonable grounds to suspect involvement in piracy, the slave trade, or unauthorised broadcasting;⁽³³⁾ or that the ship is without nationality, or contrary to appearances (flying a foreign flag or refusing to show its flag) is of the same nationality as the warship. In the event of slaves being discovered, there is no authority granted for the warship to take action;⁽³⁴⁾ presumably this can be authorised by the flag State of the ship.

4 Submarine cables and pipelines ⁽³⁵⁾

All States have the right to lay cables on the bed of the high seas beyond the continental shelf;⁽³⁶⁾ there is a corresponding duty to adopt laws in relation to both damage caused by ships or persons within the State's jurisdiction,⁽³⁷⁾ and to indemnity by owners of cables to those who suffer loss in avoiding damage to the cable.⁽³⁸⁾

IV SOME ISSUES ARISING FROM UNCLOS 1982

A Sovereignty

Does the declaration of a "prohibited area" on the high seas mean subjecting it to jurisdiction and sovereignty? The commentary by the International Law Commission in 1956 said that "no State may subject any part of the high seas to its sovereignty; hence no State may exercise jurisdiction over any such stretch of water.."⁽³⁹⁾

As McDougal and Burke⁽⁴⁰⁾ note, this is a non sequitur, and does not provide the answer.

In 1973 France, while conducting atmospheric nuclear tests, declared a 72-mile security zone around Mururoa and interfered with foreign ships (but not naval vessels) outside the territorial sea.⁽⁴¹⁾ Naval manoeuvres can also cause some restrictions on movement of uninvolved ships on the high seas near the exercises. In both cases the claim of jurisdiction is temporary, compared to sovereignty which connotes permanent authority. If Article 89 is compared to Article 137, which prevents States claiming either sovereignty or sovereign rights in the Area, it is arguable that the omission of a similar prohibition on a claim to sovereign rights in relation to the high seas does legitimise some unilaterally declared temporary restrictions.

B Nationality

The question of a "genuine link" when registering ships arose after Kuwait was allowed to register ships under the U.S.A. flag in 1987 during the Iran-Iraq war, to gain US Navy protection. In the leading case Chartered Mercantile Bank of India v Netherlands Steam Navigation Co. ⁽⁴²⁾ two English ships, both flying the Dutch flag, collided at sea. The court stated that it was "absurd.. to suppose that the mere fact of carrying a Dutch flag makes her a Dutch ship.. The nationality of a ship depends on her ownership and on that alone."⁽⁴³⁾ This decision treats the ship as a chattel, which then attracts State protection similar to that given to personal property. It also implies that ownership without registration may nevertheless give protection.⁽⁴⁴⁾ A conclusion to be drawn is that neither registration lacking a genuine link⁽⁴⁵⁾ nor the flag flown (widely recognised as a mere symbol)⁽⁴⁶⁾ necessarily give a ship "nationality" as laid down in Article 91.

C Piracy

Under customary international law, universal jurisdiction was exercisable over piracy - considered as "an act of violence committed by a private vessel on the open sea against another vessel with the intent to plunder (animo furandi)".⁽⁴⁷⁾ Pirates were considered hostis humani generis - enemies of the human race. In the landmark English decision In re Piracy Jure Gentium ⁽⁴⁸⁾ the Court endorsed a definition of piracy as "any armed violence at sea which is not a lawful act of war".⁽⁴⁹⁾ The 1958 High Seas Convention and UNCLOS have very similar requirements that the act be "for private ends", an undefined term. Political insurgents are a recognised exception⁽⁵⁰⁾ but terrorists are not, on the grounds that terrorists are a threat to all States, and no State is willing to be held responsible for their acts.⁽⁵¹⁾

In 1961 the Santa Maria, a Portuguese cruise ship, was seized by a political opponent of the government.⁽⁵²⁾ Although an assurance that the hijacker would be treated as an insurgent was given by the arresting USA destroyer, after surrender the USA said that it had "acted under international laws against piracy".⁽⁵³⁾ Piracy was indicated by an attack on civilian lives and property during the seizure, but contrary views held that the lack of a takeover by another ship, or the lack of third party involvement together with clear indications after the seizure that public not private ends were at stake, were a contraindication.⁽⁵⁴⁾ Analysis of this situation in terms of UNCLOS turns on the meaning of "private ends" and whether Article 101(a)(ii) extends the customary 2-ship rule to an internal takeover of a ship.

In 1975 the U.S. merchant vessel Mayaguez was seized by a Cambodian patrol boat in the Gulf of Siam, more than 60 miles off the Cambodian coast; the US government considered this as piracy, as it did not recognise the Khymer Rouge regime, and so did not accept the Cambodian ship as a warship.

D Mutiny

Is it piracy? There is no prohibition on mutiny as such, unless dealt with by municipal statutes, but the construction of Article 101(a)(ii) (a definition of piracy) does not exclude internal seizures. It can be argued that mutiny should be included within the ambit of piracy, on the grounds that a hazard to navigation by all ships has been created; otherwise the outcome of a mutiny is uncertain, as it depends on which nation obtains jurisdiction, and how that State defines piracy.⁽⁵⁵⁾ Deterring mutineers from committing acts "for private ends" may justify this limited restriction on the sovereignty of the flag State.⁽⁵⁶⁾

E Drugs

In United States v Martinez-Hidalgo ⁽⁵⁷⁾ a U.S Coast Guard vessel on patrol in international waters boarded an unmarked, flagless ship, after obtaining a statement of consent from Colombia, the claimed nationality of the crew and the ship. Cocaine was found on board. Following conviction in a U.S. court, the Court of Appeal for the 3rd Circuit rejected the contention that a nexus between the defendant's conduct and the U.S.A. was necessary - in spite of evidence on board ship indicating a nexus.⁽⁵⁸⁾ This decision conflicted with United States v Davis, a 9th Circuit Court of Appeal decision, based on the same municipal statute, the MDLEA.⁽⁵⁹⁾ The 3rd Circuit court stated that "Congress may override international law by clearly expressing its intention to do so".⁽⁶⁰⁾ The reasoning of the Court would, taken to its logical conclusion, lead to Congressional legislation supplanting current international law, and itself becoming the new international law.⁽⁶¹⁾ The U.S.A. is not a signatory to UNCLOS; its legislative and judicial actions should be analysed in terms of the 1958 Convention (which has no provisions on narcotic drugs) and customary law. The provisions of UNCLOS may now be considered as having created customary international law by general acceptance; even so, the absence of an equivalent to Article 105 (giving jurisdiction over pirates) leaves the stance of the U.S.A. with no basis in international law.

While drug trafficking is widely condemned, it is not a crime for which the universality principle provides jurisdiction for all nations. The MDLEA (U.S.A.) is "an aggressive assertion of extraterritorial jurisdiction in order to reach illegal narcotics trafficking on the high seas"⁽⁶²⁾ by preventing the consideration of violations of international law in US courts, and is consistent with the U.S.A's self-imposed role as the worlds' policeman.

F Hot Pursuit

Hot Pursuit is an exception to the general rule that a ship on the high seas is subject to the jurisdiction of the flag state alone, but there is little state practice or relevant case law. The offence justifying the pursuit must relate to where the pursuit starts - in the EEZ, only an offence relating to the EEZ qualifies.

It is justified as being necessary for the efficient administration of the territorial jurisdiction of coastal states.⁽⁶³⁾ Although there must be good reason, not mere suspicion, to undertake pursuit, the law violated could have been trivial. The boundaries of this right are uncertain. There is a suggestion that a warship may be pursued, but only in self-defence.⁽⁶⁴⁾ A possible exception to the duty to break off pursuit if the target ship enters the territorial sea of another State has been suggested, if that State is unable to take up the pursuit.⁽⁶⁵⁾ Resumption of a discontinued pursuit is not permitted; but can a warship which spots an escapee from a previous pursuit start a fresh pursuit? This may be possible on the grounds that a second offence has been committed - attempting to evade arrest.⁽⁶⁶⁾ The suggestion that a disputed resumption may be resolved on special circumstances of each case⁽⁶⁷⁾ is unlikely to engender confidence in either the pursuer or the pursued.

V CONCLUSION

UNCLOS 1982 builds on and consolidates the 1958 High Seas Convention. The provisions are couched in general terms, which can be seen as both a strength by meshing with existing treaties and conventions, and as a weakness in the ongoing reliance on customary international law and judicial decisions to "fill in the gaps". Unless (or until) the U.S.A. becomes a signatory, the jurisprudence and academic writings from the world's most powerful nation will continue to treat UNCLOS as, at best, customary international law. On the high seas, the potential for conflict between States, and undermining of UNCLOS, exists particularly in the exceptions to exclusive flag State jurisdiction, where the willingness of the U.S.A. to impose its own views is not in doubt.

The law of the sea, like all international law, serves only the function of protecting common interest against the dissentient powerful and lawless. Its only ultimate sanction, in a decentralised world, is in the mutual restraint and tolerance which inhere in a recognition of common interest. ⁽⁶⁸⁾

Ian Brownlie Principles of Public International Law (4 ed, Oxford University Press, New York, 1990).

Nicholas Grief Public International Law in the Airspace of the High Seas (Martinus Nijhoff, Dordrecht, The Netherlands, 1994.

Malvina Halberstam "Terrorism on the High Seas: Achille Lauro" (1988) 82 American Journal of International Law 269.

A. T. Johns Freedoms of the High Seas and Nuclear Testing (LLM Research Paper, VUW, 1975).

H. Lauterpacht (ed) Oppenheim's International Law, Vol. I Peace (8 ed, Longmans, London, 1963).

Myres S. McDougal & William T. Burke The Public Order of the Oceans: a Contemporary International Law of the Sea (Martinus Nijhoff, Dordrecht, The Netherlands, 1987).

Tod A. Phillips "Exchanging Excuses for Uses of Force - The Tug of War in the Persian Gulf" (1988) 10 Houston Journal of International Law 275.

Nicholas M. Poulantz The Right of Hot Pursuit in International Law (A.W. Sitjhoff, Leyden, The Netherlands, 1969).

Robert C. Reuland "The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention" (1993) 33 Virginia Journal of International Law 557.

James Brown Scott (ed) The Freedom of the Seas: or the Right which belongs to the Dutch to take part in the East India Trade: dissertation by Hugo Grotius (Oxford University Press, New York, 1916).

George P. Smith, II "From Cutlass to Cat-O'-Nine Tails: The Case for International Jurisdiction of Mutiny on the High Seas" (1989) 10 Michigan Journal of International Law 277.

Jeffrey D. Stieb "Survey of United States Jurisdiction Over High Seas Narcotic Trafficking" (1989) 19 Georgia Journal of International Comparative Law 119.

Lawrence E. Stuart "The Third Circuit Sinks Due Process Limits on the Maritime Drug Law Enforcement Act: United States v Martinez-Hidalgo" (1994) 18 Tulane Maritime Law Journal 401.

Sovereignty:

Can there be a limited or temporary State jurisdiction over a part of the high seas which is compatible with Article 89?

Nationality:

As nationality depends on a "genuine link" between State and ship, does this mean that flying the flag is not always conclusive proof of a ship's nationality?

What is the effect of flying no flag? Does such a ship come under the jurisdiction of the State whose nationals own the ship?

Duty to render assistance:

Do the "mutual regional arrangements" in Article 98 create an obligation on land-locked states?

Piracy:

What is the purpose of Article 101(a)(ii)? What other places outside State jurisdiction might be anticipated - and does the definition cover mutiny?

Drugs:

Should trafficking in drugs invoke universal jurisdiction in the same way as piracy?

Right of Visit (Article 110)

What can the visiting warship do if slavery is discovered; or if the ship is without nationality but otherwise innocent?

Submarine Cables

Does the application of Part VII extend to the Area, at least as regards submarine cables and installations; or does Article 134(2) totally exclude High Seas rules within the Area?

Introduction

Historical Background

UNCLOS 1982

General Provisions: Articles 86-89

Rights and Obligations: Articles 90-98

Prohibited Activities: Articles 99-111

Cables and Pipelines: Articles 112-115

Conclusion

State Claim of Sovereignty

Venice Adriatic Sea

Genoa Ligurian Sea

Sweden, Denmark Baltic Sea

Great Britain Narrow Seas, North Sea, The Atlantic from North Cape to Cape Finisterre.

Portugal Indian Ocean

The Atlantic south of Morocco

Spain The Pacific

Gulf of Mexico

(source: Oppenheim's International Law (8 ed)

Other States claiming sovereignty: Tuscany, The Papacy, Turkey

Source: Principles of Public International Law (Brownlie)

Conventions: Salvage; Assistance; Collision; Safety at Sea.

1. A Maritime State must lay down rules for vessels flying its flag, and furnish official authorisation to the ship.

2. A State has the right to punish vessels flying its flag without authorisation.

3. Vessels and their persons and goods on the high seas are under the jurisdiction of the flag State.

4. Every State can punish piracy on the high seas, including piracy by foreigners; and warships can require all suspect ships to show their flag.

[Right of Pursuit onto the high seas]

Supplemented by municipal laws on:

1. Conditions for authorisation to fly the flag

2. Details of jurisdiction over persons and goods

3. Discipline on board

4. Punishment for sailing under the flag without authorisation

Oppenheim p. 590-591.

Article 86 Application

87 Freedom of the High Seas

88 Peaceful Purposes

89 Sovereignty Claims

Article 90 Right of Navigation

91 Nationality

92 Ships to sail under one flag only

93 U.N. ships

94 Duties of the flag State

95 Immunity of warships

96 Immunity of government ships

97 Penal Jurisdiction

98 Duty to Render Assistance

99 Slavery

100-107 Piracy

108 Illicit Drugs

109 Unauthorised Broadcasting

110 Right of Visit

111 Hot Pursuit

112-115 Submarine Cables and Pipelines

1. James Brown Scott (ed) The Freedom of the Seas: or the Right which belongs to the Dutch to take part in the East India Trade: dissertation by Hugo Grotius (Oxford University Press, New York, 1916), 7: by the Law of Nations navigation is free to all persons whatever.

2. United Nations Convention on the Law of the Sea 1982, reprinted 21 ILM 1261 (1982).

3. H. Lauterpacht (ed) Oppenheim's International Law, Vol. I Peace (4 ed, Longmans, London, 1963), 583.

4. Above n 3: Portugal - the whole of the Indian Ocean and the Atlantic south of Morocco; Spain - the Pacific and the Gulf of Mexico.

5. Ian Brownlie Principles of Public International Law (4 ed, Oxford University Press, New York, 1990), 233.

6. The full title of this dissertation (chapter 12 of De jure praedae by Grotius) is Mare liberum seu de jure quod Batavis competit ad indiciana commercia dissertatio: see above n 1.

7. Mare Clausum sive de Dominio Maris: written in 1618, printed in 1635 by command of King Charles I, with an English translation in 1652.

8. This was a requirement that foreign vessels salute the British flag within seas over which the British claimed sovereignty.

9. "Convention on the High Seas. Done at Geneva, on 29 April 1958" reprinted in S.H. Lay, R. Churchill, M. Nordquist (eds) New Directions in the Law of the Sea I Documents (Oceana Publications, New York, 1973), 23.

10. Article 87.

11. Data deduced from Nicholas Grief Public International Law in the Airspace of the High Seas (Martinus Nijhoff, Dordrecht, The Netherlands, 1994).

12. The Area is of course approximately the same size, though the law applying to it is largely new and untested.

13. Section 2, Conservation and Management of the Living Resources of the High Seas, is beyond the scope of this paper.

14. Article 1: The term "high seas" means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.

15. Subject to Part VI.

16. Subject to Section 2.

17. Subject to Part VI.

18. Subject to Parts VI and XIII.

19. Article 90.

20. Article 97.

21. Article 94.

22. Article 92.

23. Using two or more for convenience results in being treated as a ship with no nationality - Article 92.

24. Article 98.

25. Article 95.

26. Article 96.

27. 1958 High Seas Convention, Article 13.

28. Article 108.

29. See Articles 100-107.

30. EEZ, contiguous zone, territorial sea or internal sea.

31. Article 109.

32. Article 110.

33. Provided the flag State of the warship has jurisdiction under Article 109.

34. See Article 99.

35. Considered hereafter together as cables.

36. Article 112.

37. Articles 113, 114.

38. Article 115.

39. 1956 Report, 24; quoted in Myres S. McDougal & William T. Burke The Public Order of the Oceans: a Contemporary International Law of the Sea (Martinus Nijhoff, Dordrecht, The Netherlands, 1987), 82.

40. See above n 39.

41. A. T. Johns Freedoms of the High Seas and Nuclear Testing (LLM Research Paper, VUW, 1975), 1.

42. (1883) 10 Q.B.D. 512.

43. Above n 42, 535-536.

44. Tod A. Phillips "Exchanging Excuses for Uses of Force - The Tug of War in the Persian Gulf" (1988) 10 Hous.J.Int'l.L 275, 282.

45. Above n 44, 280.

46. Above n 44, 281.

47. Above n 3, 608.

48. 1934 AC 586.

49. Above n 48, 598.

50. Malvina Halberstam "Terrorism on the High Seas: Achille Lauro" (1988) 82 A.J.I.L. 269, 274-276.

51. Above n 50, 289.

52. This event was considered under customary law, as the 1958 Convention on the High Seas did not come into effect until 30 September, 1962.

53. Above n 50, 286.

54. Above n 50, 287.

55. George P. Smith, II "From Cutlass to Cat-O'-Nine Tails: The Case for International Jurisdiction of Mutiny on the High Seas" (1989) 10 Mich.J.Int'l.L. 277, 295.

56. Above n 55, 301.

57. 993 F.2d 1052 3d Cir. 1993, cert denied, 114 S. Ct 699 (1994).

58. For instance: indications that the U.S.A. was the destination of the ship.

59. Maritime Drug Law Enforcement Act 46 U.S.C. app. ss 1901-1903 (1988).

60. Above n 57, 1056.

61. Lawrence E. Stuart "The Third Circuit Sinks Due Process Limits on the Maritime Drug Law Enforcement Act: United States v Martinez-Hidalgo" (1994) 18 Tul.Mar.L.J. 401, 413-414.

62. Jeffrey D. Stieb "Survey of United States Jurisdiction Over High Seas Narcotic Trafficking" (1989) 19 Georgia.J.Int.Comp.L. 119, 122.

63. Robert C. Reuland "The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention" (1993) 33 Virg.J.I.L. 557, 559.

64. Nicholas M. Poulantz The Right of Hot Pursuit in International Law (A.W. Sitjhoff, Leyden, The Netherlands, 1969) 187, 192.

65. Above n 63, 577.

66. Above n 63, 571.

67. Above n 63, 581.

68. McDougal & Burke, see above n 39, 88.