An analysis of Codification and Progressive Development of International Law

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This article was written by Punyam Bhutani, a student of Vivekananda Law School, Vivekananda Institute of Professional Studies (Affiliated to Guru Gobind Singh Indraprastha University, Delhi)

Abstract

International Law has often been characterized and christened as a soft/ weak law by its critics. There has always been a constant controversy regarding the nature as well as the legal character of International Law. In addition to this, an ambit of doubt has been influencing the various individuals, countries as well as the governing bodies such as the United Nations Organization (UNO), World Health Organization (WHO), International Bank for Reconstruction and Development (IBRD), etc. Despite being in the light of this controversy, International Law has grown by leaps and bounds and has acquired binding sanction through jus cogens (the principles which form the norms of international law that cannot be set aside), erga omnis (towards everyone) obligations and other vital sanctions being imposed by the International Community against the violators of International Law.

This paper seeks to analyse the development of International Law as through the ages with a special reference to the codification process through which most of the principles of International Law have seem to become of relative significance.

Key Words: Codification, Declaration of the Rights of Nations, United Nations Charter, International Law Commission, Treaties, General Assembly Resolutions.

Introduction

In the recent times, codification and progressive development of International Law is broadly accepted as being an essential task of states and the specific legislative process of the contemporary international community.

Modern International Law has its origin in the Europe of the fifteenth, sixteenth and seventeenth century after the disintegration of the Holy Roman Empire. It initially grew out of usages and customary practices of European States in their mutual intercourse and was affected by the political theories prevalent in Europe during that specific period. It was first extended beyond Europe at the end of eighteenth and the beginning of the nineteenth centuries to the states that succeeded the rebel European colonies of North and South America.[1] Although it is the outcome of the developments of the last 500 years, there have been studies and reports that its presence existed in all climes and ages to regulate the relations between independent nations existing since ancient times[2].

Codification/Codification Process relating to International Law

International Law has been defined as the system composed solely of legal rules and principles binding upon the civilized nations only in their mutual relations by various ancient standard works.

According to Oppenheim, “Law of Nations, or International Law is the name for the body of customary and conventional rules which are considered binding by civilised States in their intercourse with each other”[3]
Kelsen states, “International Law or the Law of nations is the name of a body of rules which according to the usual definition regulate the conduct of states in their intercourse with one another”

Such an approach towards the validity and contour has been adopted and implemented by the judiciary and the courts. The judgements given have defined and stated “the form of the rules accepted by civilised States as determining their conduct towards each other and towards each other’s subjects”[4] and “the principles which are in force between all independent nations”[5].

Meaning of Codification

The term “Codification ordinarily implies the process of reducing the generally existing principles of a branch of law into a Code capable of enactment and reference. It aims at putting together the rules of law on a given subject in a systematic manner making its provisions clearer by removing all lacunas, and also modifying the rules in accordance with the changed conditions.

In the restricted sense, it denotes the creation of codes, which are a collection of written statutes, rules and regulations that inform the public of acceptable and unacceptable behaviour. Thus, codification does not give birth to rules or principles of a branch of law but only assists to consolidate, compile or give shape to the existing rules of a particular branch of law or in general[6].

Sir H. Lauterpacht has opined for a narrow meaning to the term “Codification”.

“The task of Codifying International Law, if it is to mean anything, must be primarily one of bringing about an agreed body of rules already covered by customary or conventional agreement of States”[7]. Therefore, in accordance to this opinion, the ‘Codification of International Law’ only denotes to providing a written form to the unwritten principles/rules of International Law. It does not involve the prospective thinking nor does it allow the invocation of any modification or amendment to the existing/present rules and norms.
However, adopting a wider perspective, wherein codification also involves the modification and amendment of existing rules of international law, so as to keep up with the changed times and also provide for the developing concepts, another contradictory view exists to hold, “there is a school of thought which holds that codification in the proper sense of the word can only mean writing down of the already existing rules; though it usually has to be conceded that in practice even a strict codification in this sense may involve the making of a few minor changes in the law, however, to adopt a too strict definition of the process involved is therefore to defeat the very ends for which the machinery is to be employed”

It means any systematic statement of the whole or part of the law in written form, and that it does not necessarily imply a process which leaves the main substance of law unchanged, even though this may be true for some cases.

In other words, codification properly conceived is itself a method of the progressive development of law.[8]

History of Codification

The attempts to codify International Law had been underway since the late nineteenth century at different levels. The first idea of Codification of International Law was conceived by the British philosopher, jurist and social reformer Jeremy Bentham at the end of the 18^th[9] Before him an unsuccessful attempt was made by the French Convention to draw up a Declaration of the Rights of Nations in 1792.
The Declaration of Paris, 1852 was signed by countries such as Britain, France, Austria, Russia, Turkey, Prussia, and Sardinia after the end of the Cremean War in 1856 and marked as the first step in the history. The declaration laid down the principles relating to Abolition of privateering, Non- capture of neutral goods except illegal imports of war, under enemy flags, Non capture of enemy goods under neutral flag except smuggled goods of war.

Codification by individual writers

The Austrian Jurist , Alfons Von Domin Petrus Hnvecz was the first person to attempt the codification and indicated the possibility for the same in the year 1861.
In the same year, Professor Trancis Lieber, Columbia Law School attempted to codify the laws of was.
Subsequently, eminent jurists such as Oppenheim, Hall, Phillimore and Hyde attempted to bring out the rules of International Law in a system.

The Hague Conferences

The most notable achievement before the First World War was at the Hague Conventions of 1889 and 1907 relating to the laws of was and neutrality. [10]

The First Conference of 1899 resulted in the adoption of two conventions in the form of a code.
Convention on the Pacific Settlement of International Disputes
Convention on the Laws of Customs of War on Land
The Second Conference convened by Russian Emperor Nicholas II in 1907 was attended by 44 states and almost thirteen conventions were related to:
Warfare and neutrality in war on land and sea
The status of enemy merchantman at the outbreak of war
Bombardment by naval force, etc.

The London Declaration

The London Declaration held in 1909 was signed by most of the great powers including Austria, Hungary, France, Germany, Italy, Japan, Russia, the United Kingdom, and the United States.[11] The declaration largely reiterated present laws, but dealt with many controversial points relating to:

Blockades
Contraband and prize
Rights of neutral entities

Though, no state ratified the declaration and subsequently it never came into force, the event is considered to be of immense importance and significance in the history of codification of International Law.

The League of Nations

The League of Nations, formulated in the year 1930, convened a Codification Conference at The Hague, Netherlands. The League Council appointed a Committee of sixteen jurists in 1924 to report the Council, subjects which were to be taken up for consideration which primarily included:

Nationality,
Territorial Waters
State Responsibility for damage done in their territory to the persons or property of foreigners,
Diplomatic immunities and privileges,
Procedure of International Conference and Procedure for the conclusion and drafting of treaties,
Exploitation of the products of the sea, and
Piracy

Subsequently, in 1928, the Committee reported two more subjects for codification namely:

The Law relating to functions and competence of Consuls, and
The Competence of Courts regarding foreign states

The Conference turned out to be a big disappointment. Agreements were reached on only the Convention on certain questions relating to the conflict of Nationality Laws[12], and even those were ratified later only by very few States. On all the other matters, the Conference brought out sharp disagreements amongst the States, even on those matters which, till then were generally regarded as established rules of International Law.

The failure of the Conference served the members of the new commission as a reminder to proceed cautiously with the Codification of International Law through a longer process and more gradual process[13].

Establishment of the United Nations

The attempts to Codify International Law got a fillip with the establishment of the United Nations. The United Nations Charter delegated this task to the General Assembly.

“The General Assembly shall initiate studies and make recommendations for the purpose of ‘promoting international cooperation in the political field’ and encouraging the progressive development of International Law and its Codification’ ”[14]
Thus, it may be put into light that the aim to Codify International Law was not only existing but also found its place in the fundamental document establishing the United Nations, i.e. the UN Charter itself.
Taking into consideration the urgency of the situation and its importance, the General Assembly acted quickly. Subsequently, a committee was appointed on the 11^th of December, 1946 for the Progressive Development of International Law and its Codification.
Further, following the mandate of Article 13, the General Assembly established the International Law Commission (ILC) in November, 1947.[15] The International Law Commission (ILC) first met on April 11, 1949 in Lake Success, New York, United States. The agenda for the session consisted of six items:
Making a general survey of topics of International Law that required codification into treaties and conventions,
The rights and duties of states,
The Nuremberg Principles and the definition of crimes against the peace of mankind,
Possibility of establishing a Judicial body to prosecute leaders guilty of genocide,
Finding ways to make the rules and documents of International Law more available to the public and scholars,
Cooperation by the International Law Commission with other United Nations agencies.
During the session, disagreement arose between the members as to whether the commission was entitled to include a topic on its agenda without prior consent of the General Assembly. On this issue, the commission decided that it was competent to do so, by a vote of 10 to 3.[16]
Subsequently, the 2^nd, 3^rd, 4^th, and 5^th sessions were held in the years 1950, 1951, 1952, and 1953 in Geneva, Switzerland.

The establishment of the International Law Commission (ILC) brought out a turning point in the ‘Codification Movement’, i.e., the movement for the systematic presentation of International Law in the form of written rules representing a restatement of existing rules of International Customary Law or the formulation of new ones.[17]

In respect to the Codification of International Law, the commission decided to give priority to broadly the three concepts:
Law of Treaties
Arbitral Procedure
Law relating to High Seas
It also follows a set procedure for the adoption of international rules through multilateral treaties or conventions, irrespective whether it is codification or progressive development.
It first prepares a set of draft articles on the basis of reports prepared by its member appointed as special rapporteur. The draft is then sent to the States for their comments.
After receiving the comments, the final draft on the subject is prepared and sent to the General Assembly, which then decides to convene on international conference for the adoption of a convention, based on the draft.

The importance of the commission can be summarised in the words of Lauterpacht[18], who states, “the texts prepared by the Commission are, in terms of the rules about sources of International Law in Article 38(10)(c) as under the Statute of International Court of Justice (ICJ) are at least in the category of writings of more qualified publicists”

The Commission is composed of 34 members elected by the General Assembly, having the competence in International Law, and representing the main forms of civilisation and the principal legal systems of the world. The ILC’s membership was raised from 25 to 34 in 1981. The membership is distributed as follows: Africa- 8, Latin America- 6, Asia- 7, Eastern Europe 3, Western Europe and other States- 8, 1 national by rotation from Africa or Eastern European States, and 1 national by rotation from Asian or Latin American States.[19]

The International Law Commission has conducted a total of 71 seventy-one sessions as of 2019. In accordance with the General Assembly Resolution 74/186 of December 18, 2019, the ILC is scheduled to hold its seventy- second session at the United Nations office at Geneva, Switzerland from April 27 to June 5 and from July 6 to August 7, 2020.[20]

However, taking into consideration the Global Pandemic relating to Covid-19, the situation as to the conduct of the seventy- second session still remains uncertain and precarious.

Progressive Development of International Law

The development of International Law has been mainly effected through usages, practices, and writings of jurists such as Zouche, Pufendorf, Bynkershoek, Wolff, Moser, Vattel and Von Maryens even after Grotius, and continued into the nineteenth century. But like all living laws, International Law is not static. It is constantly developing and restructured in the very process of its application to new situations, sometimes undergoing qualitative changes.

The definition of ‘Development’ presents insuperable difficulties by reason of the range of operations encompassed. This largely explains the lack of acceptance of the view that there is ‘right of development’ which can be characterised as a human right in the strict sense.[21]

Significant developments have taken place since the Second World War, which include the establishment of a large number of international institutions and organisations.
These are regarded as ‘International Legal Entities’. This has been confirmed by the International Court of Justice (ICJ) in Reparation for Injuries Suffered in the Service of the United Nation.[22]

In 1815, The Congress of Vienna, the first European Assembly, adopted rules for navigation of international rivers.

A series of treaties were adopted during this period, relating to the neutrality of Switzerland (1815) and Belgium (1831), Codified law od Maritime Warfare (Paris Declaration, 1856), creating special regimes for the Suez Canal (1888) and Panama Canal (1901).
However, the second half of the nineteenth century saw the marked development of International Law largely because of the emergence of powerful States, the expansion of European civilisation in other parts of the world mainly through colonisation, new and faster means of transport and increasingly destructive nature of warfare.
As a consequence, a number of treaties with humanitarian approach were adopted. These included:
The Declaration of Paris (1856)
The Geneva Convention (1864)
The Declaration of St. Petersburg (1868)
The Hague Conventions (1889 and 1907)

The development of written International Law through the restatement of principles of existing law or through the formulation of new law , was pursued at over 100 International Conferences or Congresses held between 1864 and 1914, resulting in over 250 international instruments.[23]

The law is no more confined to usages and customs, but International Conventions are included on every important area. The new scientific developments have also affected the growth immensely.
The Environment Law has crossed the national frontiers and given a community based approach to International Law.[24]

The developments have profoundly impacted in shaping modern International Law, which has become universal in its application to all the countries and the nations in equal measure.

An Introspect in reference to Codification and Progressive Development Of International Law

“Codification” means “the more precise formulation and systematization of rules of International Law in fields where there already has been extensive State practice, precedent and doctrine.”[25]

“Progressive Development” is the preparation of draft conventions on the subjects which have not yet been regulated by International Law or in regard to which the law has not yet been sufficiently developed in the practice of States.”[26]

The distinction between ‘codification’ and ‘development of international law’ has been adopted both in the Charter of the United Nations and in the Statute of the International Law Commission.
Taking into consideration the aspect of actual practice, the relationship between both is often blurred and overlapped. Justice Sørensen has opined and remarked, “Although theoretically clear and distinguishable, the two notions tend in practice to overlap or to leave between them an intermediate area in which it is not possible to indicate precisely where Codification ends and Progressive Development begins.”[27]

It is essential to note that distinguishing between “Pure Codification” on the one hand and progressive development on the other hand, while intellectually attractive, has proven to be practically impossible. Indeed, the Statute of the International Law Commission (ILC) is based on such a distinction, but it has never “worked” in practice: neither regarding the selection of topics, nor in the respect of procedure followed, or the outcome of its work, has the Commission made (or been able to make) a difference between both the aspects; all topics involve partial Codification. In addition, all imply an element of Progressive Development since, almost as a matter of definition, customary rules always comprise some elements of uncertainty calling for clarification and this is precisely one of the main purposes of Codification; and this is even true in very ancient fields of international relations largely regulated by well-established rules, such as diplomatic or consular relations or the Law of Treaties.[28]

Conclusion

The role of Codification and Progressive Development assumes profound significance because of the complex nature of growing international relations, which call for particular formulation and endorsement. The purpose of codification may have been confused as having a progressive trend or merely codifying state practice but in reality the codification exercise has turned out to be of worthwhile assistance to the Development of International Law.

References

Textbooks
Cases and Material on International Law, Vivekananda School of Law and Legal Studies (VSLLS), 2019-2020.
A Shearer, Starke’s International Law, (11^th Edition), International Student Edition, Oxford University Press, 2017
Oppenheim, International Law, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, (9^th Edition), 1996
K. Kapoor, International Law and Human Rights, Central Law Agency, Allahabad, (18^th Edition), 2018
K. Verma, An Introduction to Public International Law, Satyam Law International, (3^rd Edition), 2019

Articles
Alain Pellet, Between Codification and Progressive Development of the Law: Some reflections from the ILC, International Law Forum, 2004, pp. 15-24.
Graefrath, The International Law Commission Tomorrow: Improving its Organization and methods of work, 85 Am. J. Int’l L. 595, 1991
Carl August Fleischhauer, The United Nations and the Progressive Development and Codification of International Law, 25 IJIL 1, 1985
Charles G. Fenwick, Notes of International Affairs, The American Political Science Review, Volume 12, No. 2, 1918
H Lauterpacht, Codification and Development of International Law, American Journal of International Law, Volume 49, Issue 1, 1955
Y. Zennings, The Progressive Development of International Law and its Codification, 24 BYBIL 301, 1947

Websites

law.yale.edu
http://mfa.gov.by/en/foreign_policy/int_law/codific/
http://www.un.org/law/1990-1999/
https://en.wikipedia.org/wiki/International_Law_Commission#63rd_session,_2011
https://en.wikipedia.org/wiki/League_of_Nations_Codification_Conference,_1930
https://legal.un.org/ilc/documentation/english/ASIL_1947_study.pdf
https://opil.ouplaw.com/view/10.1093/law/9780199213795.001.0001/law-9780199213795-chapter-4
https://www.cambridge.org/core/journals/american-journal-of-international-law/article/codification-and-development-of-international-law/55A3A4581EA8C4A74DE63525F91CF0BA
cqpress.com
com
ssrn.com
legal.un.org/ilc/

[1] D J Harris, Cases and Materials on International Law, (Sweet and Maxwell: London, 6^th Edition, 2004)

[2] S. K. Verma, An Introduction to Public International Law, Satyam Law International, (Third Edition), 2019

[3] L. Oppenheim, International Law, vol. 1, 8^th ed. (Lauterpacht (Ed.), Longman London), 1955, p.6.

[4] West and Central Gold Mining Co. Ltd. v. King (1905) 2 KB 91

[5] SS Lotus case, PCIJ Series A, No. 10 (1927)

[6] Ian Brownlie, Principles of Public International Law, 28, (Oxford, London, 6^th Edition, 2003)

[7] Sir H. Lauterpacht, European Journal of International Law

[8] R. Y. Zennings, The Progressive Development of International Law and its Codification, 24 BYBIL 301 (1947)

[9] Oppenheim, International Law, 97, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, 9^th Edition, 1996)

[10] “The Hague Peace Conferences of 1889 and 1907, a series of lectures delivered before the Johns Hopkins University in the year 1908”, avalon.law.yale.edu

[11] Declaration concerning the laws of Naval War: Signatory States

[12] The Original Text, Convention on Certain Questions Relating to the conflict of Nationality Laws, The Hague, April 12, 1930

[13] Statement by Secretary of the International Law Commission (ILC), Yearbook of the International Law Commission, April 13, 1949

[14] Article 13 (1) (a), Para. 1, The United Nations Charter

[15] GA Res. 174 (II) of Nov. 21, 1947, The statute of the International Law Commission, L Sohn, Basic Documents of the United Nations (Foundation Press Inc., Brooklyn), 1956, p. 31.

[16] Yearbook of International Law Commission, (1949), p. 32

[17] Carl August Fleischhauer, The United Nations and the Progressive Development and Codification of International Law, 25 IJIL 1 (1985).

[18] “Survey of International Law in Relation to the Work of Codification of the International Law Commission” in E. Lauterpacht, Ed., International Law, Being the Collected Paper of Hersch Lauterpacht (1970) Vol. 1 at p. 445, cited by D J Harris, Cases and Materials on International Law, 64, (Sweet & Maxwell, London, 6^th edition, 2004)

[19] Articles 2, 3, and 8 of The Statute of International Law Commission (ILC)

[20] legal.un.org/ilc/

[21] I. A Shearer, Starke’s International Law, (11^th Edition), International Student Edition, Oxford University Press, 2017

[22] ICJ Rep., p. 174 (1949)

[23] The American Journal of International Law, Volume 41, No. 4, Official Documents (October, 1947)

[24] S. K. Verma, An Introduction to Public International Law, (Third Edition), 2019

[25] Article 15 of The Statute of International Law Commission (ILC)

[26] Ibid.

[27] North Sea Continental Shelf Case, 2 KB 39, (1969)

[28] Alain Pellet, Between Codification and Progressive Development of the Law: Some reflections from the ILC, International Law Forum 2004, pp. 15-24.