That would markedly expedite the work of the Commission and might exploit what practical margin there is for its improvement. Full-time rapporteurs would have to be compensated appropriately, if not at commercial levels then at those of Judges of the International Court of Justice or the most senior officials of international secretariats. 2. Working Methods 16. The working methods which the Commission has evolved, and which are lucidly expounded in a Report of a Commission Working Group on Review of the Multilateral Treaty-Making Process of 23 July 1979 (see A/35/312/Add.2), appear to be admirably suited to the achievement of its purposes. Nevertheless a few comments may be in order. (a) The Codification Division of the Secretariat should continue to be strengthened, particularly with a view to its lending to special rapporteurs of the Commission the necessary specialized assistance. (b) During a particular five-year term, the Commission should endeavor to concentrate upon and complete a few topics, rather than dissipating its efforts among several. Such concentration will permit the Commission to accomplish more, and will reduce the impact which a succession of special rapporteurs produces. (c) When the Commission undertakes a very large subject, it should consider from the outset whether it should be broken down into two or more components, to be addressed by two or more special rapporteurs. (d) The Commission should consider establishing working groups for particular topics which might meet for two or three weeks between sessions. Sessions of the Commission itself might then be reduced in length. This pattern has worked well for UNCITRAL and perhaps is applicable to the Commission. (e) Consideration should be given in appropriate cases to the use by the United Nations, at the initiative and with the concurrence of the Commission, of special rapporteurs drawn from outside the Commission's membership. (f) Governments might increasingly be requested to submit written comments on draft articles prepared by the Commission in the course, and before the final completion, of a first reading of an entire set of draft articles. (g) Questionnaires might more often be addressed by the Commission to Governments to elicit their views on the direction and content which Commission drafts should take. (h) The Commission should give renewed consideration to the preparation of instruments other than articles designed to compose a treaty (as it did in its earlier years). (i) The mode of adoption of the Commission's annual report might be adjusted. As it is, the whole of the report is adopted during the last week of a session of the Commission. Commission members often receive drafts of the passages proposed for adoption so shortly before they are moved that time is not always adequate for their consideration. Yet these commentaries can play an important role in the understanding and interpretation of the draft articles proposed, and can be given significant weight by governments and other interpreters. It may be that the Commission could consider draft chapters of its report at various stages of a session rather than in its final week, or perhaps commentaries should be provisionally adopted at one session and subject to revision and final adoption at the succeeding session. (j) There is some tendency for the Commission in its comments on draft articles to repeat in extenso the passages to be found in the pertinent report of its special rapporteur. The Commission should consider to what extent cross-referencing or other approaches might minimize this practice which, however understandable, is not economical. (k) The content of the commentaries on draft articles to be found in the Commission's reports may require more rigorous and objective treatment than the Commission has always manifested, particularly in recent years, when it has occasionally permitted the adoption of passages which are of questionable relevance or which even are tendentious. The Commission also has appeared to assign legal weight to certain controverted and controversial resolutions of the General Assembly, despite the fact that the Assembly generally lacks legislative authority and despite the fact that the resolutions in question cannot reasonably be evaluated as declaratory of international law. The International Law Commission is a subsidiary organ of the Assembly, but it does not follow from that fact that the Commission is justified in treating as the law what a majority of the Assembly may believe or wish the law to be. Should the Commission include in its commentaries-and, a fortiori in its draft articlespassages and provisions which, however congenial to many States of the Assembly or to certain of its special rapporteurs, are not consonant with existing international law or with the progressive development of that law as the international community as a whole wishes it to be, it will risk prejudicing its authority. (1) The report of the Commission should be drafted so as to focus the attention of the members of the Sixth Committee on the particular questions on which interim governmental comments are most desired. As it is, the report tends to be so long and distributed so late that it is difficult for the members of the Sixth Committee to assimilate it and comment upon it in a considered, and even less, instructed, way. Thus misapprehension may arise in the Commission about what really are considered governmental reactions to its drafts. 3. Character of the Commission 17. The character of the Commission as an expert body composed of persons of recognized competence in international law has been accepted from the outset. The experience of three decades fully justifies the continuation of the Commission as an expert body comprised of individuals serving in their personal capacity. Not only has this permitted the Commission to attract to its membership eminent scholars who might not otherwise have served; it also has promoted a valuable continuity of membership. Moveover, the members of the Commission serving in their expert capacities do not manifest the caucus consultations, bloc voting and ritualistic expressions of position that often characterize governmental bodies of the United Nations. 18. It is recognized that UNCITRAL, which is composed of representatives of Governments, has been successful in doing somewhat similar work. However, the nature of the work of UNCITRAL has been such that it is unlikely that many individuals would have sufficient expertise in all the specialized fields covered and, consequently, many members send different representatives to the various working groups, whose mandates are technical and specific. These considerations do not equally apply to the International Law Commission. It is believed that the work of various ad hoc and special committees within the United Nations system over the years demonstrates that, while there are often benefits in having governmental involvement at an early stage of work, there is some loss in that representatives may feel obligated to assert governmental views in a manner that is often not consistent with the expeditious examination of the legal issues. Indeed, pressures of representational responsibility may lead to compromises of the lowest common denominator with insufficient attention paid to the technical legal issues or, indeed, the interests of the international community as a whole. Bloc politics may impede the early processes of codification; they have sufficient (if not excessive) influence in later stages. 19. In sum, there appears no reason to change the Commission from a body of uninstructed experts to a body of governmental representatives. B. United Nations Commission on International Trade Law 20. UNCITRAL has a record of substantial success. The initial decisions in UNCITRAL to restrict its efforts to legal issues of trade practice and to abstain from involvement in issues of trade policy have proven correct over the years and should be maintained. The working methods elaborated by UNCITRAL over the years, with the assistance of the secretariat, seem singularly wellsuited to its tasks. At some point, UNCITRAL may wish to consider the use of a special rapporteur on an experimental basis to ascertain whether that might expedite the early stages of its work. The United States is confident that the Government of Austria and the United Nations will take all necessary measures to ensure that the UNCITRAL secretariat will be able to continue to function as effectively in its new headquarters as it has in the past, including the provision of the necessary reference and research facilities. 21. It may be that the United Nations system at large should be made more fully aware of the potential of UNCITRAL as the agency for dealing with the legal aspects of a number of economic and trade issues. A recommendation of the twelfth session of UNCITRAL is pertinent to this perception.5 1 Official Records of the General Assembly, Twenty-seventh Session, Supplement No. 10 (A/8710/Rev. 1), chap. III, sect. B. 2 Official Records of the General Assembly, Thirty-fourth Session Supplement No. 39 (A/34/39), sect. IV. 3 See Report of the United Nations Conference on Territorial Asylum (A/CONF. 78/12). Official Records of the General Assembly, Second Session, Sixth Committee [] Annex 1 (Document A/331). 5 Official Records of the General Assembly, Thirty-fourth Session, Supplement No. 17 (A/34/17), chap. IX, sect. F, paras. 129-131. The General Assembly endorsed this position in its resolution 34/142 of 17 December 1979. U.N. Doc. No. A/35/312/Add.1, dated Aug. 28, 1980, pp. 30-38. Pt. II of the U.S. comment, "Legislative Phase", noted the "considerable" achievements of plenipotentiary conferences in the U.N. era but suggested (without abandoning the conference process) that, in the interest of conserving fiscal and human resources, one of the U.N. General Assembly's main committees, particularly the Sixth (Legal) Committee, might also act in making (drafting) treaties. This practice had been followed, the comment continued, in drawing up the U.N. Convention on Special Missions (see, post) and the U.N. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, done at New York, Dec. 14, 1973 (TIAS 8532; 28 UST 1975; entered into force, Feb. 20, 1977. In addition, the United States suggested that the International Law Commission, or any other body of experts initially preparing a draft treaty, include proposed texts for preambles and final clauses, and alternative draft texts on especially difficult or controversial issues, whether in the final clauses or in the substantive articles. In this regard, the United States said, the initial preparers of the draft should attempt to anticipate major controversial issues likely to arise at the conference and to draft texts "in the alternative if necessary, in response to them." The United States also recommended procedures for organizing treaty conferences, including writing of a "comprehensive" report and keeping of negotiating histories, at the committee and working group level, as well, in view of the importance of having a record of negotiating intent as to the meaning of the final proposed text. Part III of the U.S. comment, "Ratification Stage", discussed possible reasons for non-ratification of treaties, and suggested the use of restatements of the law as one of the alternative approaches to codification. An excerpt follows: 31. Whether a State becomes a party to a treaty is a decision that each State must take as an exercise of its sovereign will. Nevertheless, the entire process of drafting and adopting treaty texts becomes fruitless if the resulting treaties are not ratified, and a less effective process if ratifications do not come about with sufficient reach and rapidity that treaties come into force within a reasonable period of time after their completion. It may be that there is room for an exchange of views and an analysis, perhaps based on a questionnaire to States, designed to illuminate the reasons for the failure of treaties adopted by large majorities to attract sufficient parties to come into force within a reasonable period of time. Such a questionnaire might also ask States whether they would be prepared to accept practices such as those of the International Labor Organization to encourage treaty ratification. 35. The magnitude of the problem of unratified treaties is considerable. Among the questions it raises is that of alternative means of contributing to the progressive development and codification of international law. In this connection thought should be given to requesting the International Law Commission to consider the viability of restatements of the law as one of the alternative approaches to codification. That the Commission has been empowered to prepare products other than treaties has been abundantly clear from the outset when the General Assembly rejected an amendment to its Statute that would have restricted it to the production of draft treaties.6 The Commission in its earlier years did not so restrict itself, and it may well be that some of the topics currently before the Commission would lend themselves to this approach. At the same time, if the Commission and the Assembly were to implement this approach-the Commission producing and the Assembly adopting or taking note of such restatements-both the Commission and the Assembly could only do so upon the basis of genuine consensus of all of their membership. 6 Official Records of the General Assembly, Second Session, Sixth Committee, 58th meeting, pp. 151-152; annex 1 (g) (document A/C.6/193), para. 15 (para. 7); and annex 1 (i) (A/C.6/199), para. 4. Ibid., pp. 38-40. For the Convention on Special Missions and Optional Protocol concerning the Compulsory Settlement of Disputes, adopted by U.N.G.A. Res. 2530 (XXIV), Dec. 8, 1969, and opened for signature, Dec. 16, 1969, see Off. Rec. Gen. Ass., 24th sess., Sept. 16-Dec. 17, 1969, Supp. No. 30 (A/7630) (1970), pp. 99-106. §3 Relation to Municipal Law Federal Common Law Alien Tort Statute-Evolving International Law Norms In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the United States Court of Appeals for the Second Circuit reversed the district court's dismissal, for lack of federal jurisdiction, of an action for damages for the wrongful death by torture of Joelito Filartiga, which the defendant, a former Paraguayan Inspector General of Police, had allegedly caused in Paraguay. Ruling that the law of nations forms an "integral part" of the common law and had become part of the common law of the United States upon adoption of the Constitution, the Court found authority in The Paquete Habana, 175 U.S. 677 (1900), and also in Ware v. Hylton, 3 U.S. (3 Dall.) 198 (1796), for interpreting international law, not as it was in 1789, "but as it has evolved and exists among the nations of the world today." The Court held that the conduct alleged violated the law of nations as it had evolved in modern times, and that the prohibition against official torture admitted "of no distinction between treatment of aliens and citizens." Modern international law, the Court said, conferred "fundamental rights upon all people vis-à-vis their own governments." It then examined, and rejected as "without merit", Pena-Irala's argument that, even if the alleged tort violated modern international law, Article III of the United States Constitution did not authorize exercise of Federal jurisdiction over the case. Writing the Court's opinion dated June 30, 1980, Circuit Judge Irving R. Kaufman found that the provision in the Judiciary Act of 1789 for Federal jurisdiction over civil actions by aliens for tort only, "committed in violation of the law of nations or a treaty of the United |