Introduction
This article attempts to
discuss the evolution of international law with
time, while focusing on the history of the process of codification of international
law, which seems to have made much of the concepts of international law of
relative importance. But before that we will have a brief intro to what international
law is.
“International law, or public International law or law
of nations is the body of legal rules, norms, and standards that apply between
sovereign states and other entities that are legally recognized as International
actors.”[1]
The term international law was first coined by, Jeremy
Bentham. Simply defined, it is a set of laws, agreements and treaties binding
on different nations, which came together to make them as they thought would
favour their people. Increased interstate interaction led to the creation of international
law. Its key goal is to keep world peace and stability between nations.
Though the standard definitions omit to justify that international
law is more than just a set of laws but rather “constantly evolving complex of
rules, principles and procedures, many of which are accompanied by progressively
sophisticated framework.”[2]
Meaning and History of Codification
Codification can be defined as the method of reducing
the commonly established principles of a branch of law into a written code
capable of enactment and reference. It seeks to bring together the rules of law
on a given topic, in a structured manner, making their provisions simpler by
filling in any loopholes, and also updating the rules to reflect changing
circumstances.
“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”[3]
Codification and progressive development of international law has gained widespread acceptance as an important activity for states and a distinct legislative mechanism in the contemporary international community. “According to Article 13, paragraph (1)(a), of the Charter of the United Nations, the General Assembly is mandated to encourage the progressive development of international law and its codification.”[4]
The
drafting of legal rules in fields that have not yet been covered by international
law or adequately addressed in State practise is part of the progressive growth
of international law.
Sir
H. Lauterpacht has narrowly defined the codification of international law.
According to him “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”. Lauterpacht’s
view only refers to the codification as giving a written form to the unwritten
principles/rules of international law. As opposed to this, a wider point of
view is codification of international law along entails alteration and
amendment of existing rules and principles of international law in order to
keep up with the changing times and provide for new developing concepts.
The
efforts to codify international law dates back to 18th century. The
first failed effort, to draught up a Declaration of rights, 1792 was made by
the French Convention. Later Jeremy Bentham, a British philosopher, Jurist and
a social reformer, conceived the idea of codification of international law. Following
that, eminent jurists like Oppenheim, Hall, Phillimore, and Hyde sought to
codify the laws of international law into a structure.
Treaty
of Paris, 1856
The
Treaty of Paris, 1856 holds a prominent place in the growth of codification of International
Law. The treaty was signed between Russia on one side and France, Great Britain,
Sardinia-Piedmont, and Ottoman Empire on the other. “The Plenipotentiaries
signed the present Declaration on the 30th of March 1856, at the conclusion of
the Treaty of Paris, which ended the Crimean War (1853-1856).It was the result
of a modus vivendi signed in 1854 between France and the United Kingdom, which
was meant to be used during the Crimean War.”[5]
The declaration laid down certain principles to
resolve the maritime law, in times of war, which has been subject to dreadful disputes.
The following was adopted in the declaration:
- “Privateering is, and remains, abolished;
- The neutral flag covers enemy's goods, with the exception of contraband of war;
- Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag;
- Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”[6]
Hague Conventions
The Hague Conventions held in Netherlands in1889
and then in 1907 at The Hague relating to the laws of war and neutrality were
the most significant achievement prior to the First World War.
“The first conference was convened at the
invitation of Count Mikhail Nikolayevich Muravyov, the minister of foreign
affairs of Tsar Nicholas II of Russia. The conference met from May 18 to July
29, 1899; represented by 26 nations.”[7]While
the conference did not accomplish its primary goal of limiting military weapons
and equipment, it followed conventions specifying the conditions of engaging in
war and other rules relating to land and sea warfare. Most importantly,
adopting the Convention for the Pacific Settlement of International Disputes,
creating the Permanent Court of Arbitration.
The second conference was formally convened by
Nicholas II. Representatives from 44 states attended the meeting, which took
place from June 15 to October 18, 1907. The conference adopted number of conventions
such as the use of force to collect contract debts, rights and responsibilities
of neutral forces/ individuals in wars, laying of automatic submarine contact
mines, enemy merchant ships status, naval bombardment during wart, and creation
of international court.
Declaration of London, 1909
Ten naval forces gathered in London from 1908 to
1909 to draught an agreement, on belligerent controls on neutral trade and recognized
and formalized the right of neutral convoy. “The resulting Declaration of
London classified goods as:
- Absolute contraband; First class, military equipment, was subject to seizure on its way to any enemy territory.
- Conditional Contraband; Items such as food, clothing, and rolling stock, which were to be treated as contraband only if in transit to the government or armed forces of an enemy.
- Unrestricted. The third class listed goods were not subject to capture.”[8]
The declaration came pretty close to general
agreement to be accepted by both sides whenin 1914, World War I broke out, even
though it was never ratified. Items like Rubber, cloth, and soap, were
transferred from Unrestricted list to total contraband due to the demands of
total war. In 1916, the declaration was expressly rejected because it had become
obsolete.
League of Nations
With the resolution of the Assembly of the League of Nations of September 22, 1924, envisaging the establishment of a Committee of Experts for the Progressive Codification of International Law, the attempt to encourage the codification and advancement of international law made another significant step forward. “The committee consisted of seventeen experts who were to create a list of sufficiently ripe objects, the regulation of which by International agreement was most desirable and realizable. In 1927, the Assembly voted to call a diplomatic conference to codify three of the five issues that the Committee of Experts had deemed ripe for international negotiation, namely:
- nationality,
- territorial waters, and
- the liability of states for harm to foreigner person or property caused on their territories.”[9]
“The Codification
Conference, which convened in The Hague from March 13 to April 12, 1930, drew
delegates from forty-seven countries, but the only International instruments
that emerged from its work were on the subject of Nationality. After 1930, the
League of Nations did not try any further codification experiments. However, on
September 25, 1931, the League Assembly passed a significant resolution on the
codification system, with the main theme being the expansion of government
power at all stages of the codification process.”[10]
United Nations
With the foundation of
the United Nations, efforts to codify international law gained momentum.
The goal of codifying
international law was not only present, but also found a place in the
fundamental document establishing the United Nations under Article 13,
paragraph 1 (a), of the Charter of the United Nations. The General Assembly was
entrusted with this role under the United Nations Charter.
“The General Assembly at
its first session in 1946 established a committee on the progressive
development of International Law and its codification which convened from May
to June 1947 and advocated the creation of the International Law Commission.”[11]
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:
- “Planning for the codification of international law: survey of international law with a view to selecting topics for codification.
- Draft declaration on the rights and duties of States
- Formulation of the principles recognized in the Charter of the Nuremberg Principles and the concept of a crime against humanity.
- Desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes.
- Ways and means for making the evidence of customary international law more readily available.
- Co-operation with other bodies of United Nations.”[12]
The founding of the International
Law Commission under United Nations General Assembly was a watershed moment in
the Codification Drive, a movement for the systematic presentation of
International Law in the form of written rules that either restate existing
norms of International Customary Law or formulate new ones.
Conclusion
Because of the nuanced nature of growing foreign affairs, which necessitate specific formulation and affirmation, the task of Codification and Progressive Development assumes great significance. The object of codification has been misunderstood as having a progressive trend or as simply codifying state law, but in fact, the codification exercise has proven to be beneficial.
[2] Ibid
[3] Ian Brownlie, Principles of Public International Law, 28, (Oxford, London, 6th Edition, 2003)
[5] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=473FCB0F41DCC63BC12563CD0051492D
[8] https://www.britannica.com/topic/contraband#ref216209
[10] Ibid
[12] https://legal.un.org/ilc/publications/yearbooks/english/ilc_1949_v1.pdf
About the Author: This post is prepared by Abhigyan, Law Student from Delhi Metropolitan Education, Noida. He can be reached at abhigyan10092001@gmail.com
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