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Codification and Development of International Law*

Published online by Cambridge University Press:  30 March 2017

H. Lauterpacht
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Extract

The object of the present article is to survey the problems and to assess the achievements and prospects of the codification of international law within the United Nations in the light of the experience of the first five years of the activity of the International Law Commission. The Charter, in Article 13, imposes upon the General Assembly the obligation to “initiate studies and to make recommendations … for the purpose of encouraging the progressive development of international law and its codification.” In pursuance of that article the General Assembly set up the International Law Commission and adopted a Statute regulating its functions and organization. The first session of the Commission took place in 1949. Since then, it has been meeting in yearly sessions lasting between eight and eleven weeks.

Type
Research Article
Information
American Journal of International Law , Volume 49 , Issue 1 , January 1955 , pp. 16 - 43
Copyright
Copyright © American Society of International Law 1955

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Footnotes

*

This article was written before Professor Lauterpacht’s election as one of the Judges of the International Court of Justice. It is intended to embody some of the results of his experience as a member of the International Law Commission. [ED.]

References

1 See below, note 39.

2 Jennings in British Year Book of International Law, Vol. 24 (1947), p. 329.

3 Charles de Visscher, Théories et realités en droit international public (1953), pp. 177, 181.

4 See below, p. 38.

5 Report on Treaties, by H. Lauterpacht, U.N. Doc. A/CN.4/63, Arts. 1 and 3.

6 The position is illustrated, in the sense suggested above, by the fact that although Mr. Fitzmaurice (as he then was), writing in the British Year Book of International Law (Vol. 15 (1934), p. 113), adopted, in a searching analysis, a more definite attitude in respect to some of them and although he adhered to the same view in 1948 in his lectures at the Hague Academy, after stating what he considered to be the law, he added the following words of caution: “these excellent precepts are unfortunately only too often honoured in the breach” (Recueil, Vol. 73 (1948), Tome II, p. 357, note 1).

7 See below, p. 21.

8 See Survey of International Law in Relation to the Work of Codification of the International Law Commission (Memorandum by the Secretary General, 1949), p. 7.

9 Charles de Visscher, op. cit., p. 180.

10 It was reported in 1953 that the French Parliament enacted, apparently as a measure of reprisals against the United States, legislation compelling certain categories of foreign nationals resident in France to perform military service there. It was alleged that the United States was acting on legislation identical in substance.

11 I.C.J. Reports, 1951, p. 15; digested in this Journal, Vol. 45 (1951), p. 579.

12 An attitude which Sir Gerald Fitzmaurice subsequently elaborated in constructive detail in an article in the International and Comparative Law Quarterly, Vol. 2 (1953), pp. 1–26, and which was given practical application by the representative of the United Kingdom in the Human Eights Commission in 1954 in connection with the Final Clauses of the proposed Covenant of Human Bights (Doc. E/CN.4/L.345 and Add. 1). The British proposals substituted for the principle of unanimity the requirement of consent by a substantial majority of the parties.

13 I.C.J. Reports, 1951, p. 116; digested in this Journal, Vol. 46 (1952), p. 348.

14 See, e.g. Professor Brierly’s statement as Rapporteur, in 1947, of the Committee on the Progressive Development of International Law to the effect that any work of codification reveals gaps and uncertainties, and that “if you were to disregard these uncertainties and these gaps and simply include in your code rules of existing law which are absolutely certain and clear, the work would have little value” (A/AC.10/30, pp. 2, 3); Survey of International Law in Relation to the Work of Codification (Memorandum by the Secretary General, 1949): “It is clear that if the task of the International Law Commission were confined to fields with regard to which there is a full measure of agreement among States, the scope of its task would be reduced to a bare minimum”; Flournoy, in this Journal, Vol. 24 (1930), p. 468: “Early in the discussions at the recent Hague conference it was realized that there was little international law on the subject of nationality which could be codified, if ‘codification’ is to be limited to the reduction to writing of rules of law already generally agreed upon by states”; as to the London Conference of 1909, see Jennings, op. cit., p. 307. In its reply to the inquiry of the League of Nations subsequent to the Hague Conference of 1930, the British Government expressed the view that the work of that conference would have been more useful if it had been recognized from the outset that its function was one of legislative codification, and it expressed doubts as to “the likelihood of important branches of international law being found to which the application of consolidating methods would be useful” (League of Nations Doc. A. 12. 1931). The same view was expressed with all requisite clarity by Senator Elihu Root as far back as 1911. He said: “To codify municipal law is to state in systematic form the results of the law-making process already carried on by a nation through its established institutional forms. To codify international law is primarily to set in motion and promote the law-making process itself in the community of nations in which the institutional forms appropriate for the carrying on of such a process have been so vague, indistinct, uncertain and irregular that they could hardly be said to exist at all.” This Journal, Vol. 5 (1911), p. 579. He gave expression to the same view, in almost identical terms, in 1925, ibid., Vol. 19 (1925), p. 681. It is of interest to note that this generally acknowledged and most conspicuous feature of international codification finds no expression in the language of the Statute of the International Law Commission.

15 Report by M. François on the Regime of the Territorial Sea (U.N. Doc. A/CN.4/53), p. 11.

16 Second Report by M. François on the Regime of the Territorial Sea (U.N. Doc. A/CN.4/61), p. 10.

17 An apparently liberal provision which may hide pitfalls of substantive discrimination inasmuch as measures of conservation may affect exclusively methods employed by aliens for catching fish (for instance, trawl-fishing) but not against methods used by inshore fishermen (e.g., line fishing).

18 Third Report by M. François on the Regime of the Territorial Sea (U.N. Doc. A/CN.4/77), p. 5.

19 Report of the Fifth Session (1953), General Assembly, 8th Sess., Official Records, Supp. No. 9 (A/2456), pp. 12–19; this Journal, Supp., Vol. 48 (1954), pp. 27–43.

20 See below, p. 40.

21 League of Nations Official Journal, 1927, Spec. Supp. No. 55. And see above, note 14.

22 See above, p. 21.

23 See above, note 14.

24 Sec. 100 of the Report of the Commission of 1953. This report, which, like other reports of the Commission, is published also in this Journal, Supp., Vol. 48 (1954), pp. 1–70, provides an instructive illustration of the submissions in the text.

25 Although that article refers to “codification,” it is clear—and this has been the practice of the International Law Commission—that it applies also to “development.”

26 See, in particular, the paper contributed in 1946 by Sir Cecil Hurst in Transactions of the Grotius Society, Vol. 32 (1946), pp. 135–153, and the report of a committee under the chairmanship of Sir Arnold McNair, in International Law Association Report, Vol. 42 (1947), pp. 64–121.

27 “It does not require great perception to see that a mere restatement of existing law, however elegantly and liberally accomplished, would be ludicrously inadequate to meet the needs of contemporary international society, and it would be tragic if the comparative ease with which this process could be set in motion were to blind us to the need of something much more radical in the way of law-making. Radical law-making can only be done in time by the vehicle of the multipartite treaty.” Jennings, op. cit., p. 309.

28 Judge de Visscher, after apparently associating himself with such apprehension, admits that the divergencies revealed at the Hague Conference of 1930 were due less to the desire of governments to resume their liberty of action at the expense of existing law than to disagreements of substance due to the various not sufficiently clarified aspects of the problems involved and that “ce rappel a certaines réalités de la réglementation Internationale … a rapproché le droit de la vie internationale envisagee dans sa diversité et sa croisssante complexite.” Op. cit., p. 181.

29 See, e.g., the statement of the Commissioner in the Elise Leoret case, decided by the French-American Commission under the treaty of 1880, to the effect that the rule of automatic change of the nationality of a wife in consequence of a change in the nationality of the husband was part of the “public law of the world.” Eeported in Wilson, The International Law Standard in Treaties of the United States (1953), p. 57.

30 Professor Brierly, writing in 1931, observed that “the results of the Hague Conference, such as they are, are greater than we were entitled to expect.” British Year Book of International Law, Vol. 12 (1931), p. 6.

31 Sir Arnold McNair, in two lectures delivered at the Law Center of New York University and published in 1954 under the title, “The Development of International Justice,” has given the weight of his authority in support of this aspect of codification of international law (see, in particular, pp. 24–31).

32 See below.

33 U.N. Doc. A/CN.4/82, p. 11.

34 U.N. Doc. A/CN.4/82/Add. 1. See also the reply of the Dutch Government conceived in the same spirit (Doc. A/CN.4/82/Add. 6).

35 Any diminution of that right, for reasons of possible abuse, is not in keeping with the scientific character of the Commission and is, on more general grounds, indefensible. The authority of the decisions and drafts of the majority of the Commission is grounded in their intrinsic merit as distinguished from the formal fact of their being the result of a majority vote. As a rule, it cannot be impaired—it stands to gain—by an accompanying expression of the view of the minority. Where the persuasive force of a report of the majority is in fact in danger of being impaired by an accompanying expression of dissent, it may perhaps be desirable that it should thus be impaired.

36 See p. 17.

37 Such as the Universal Postal Convention or the International Telecommunications Convention.

38 This aspect of the situation was cogently commented upon by Senator Elihu Boot as far back as 1911. See this Journal, Vol. 5 (1911), p. 580.

In answer to the request of the Commission to be supplied, in accordance with Art. 19(2) of its Statute, with “texts of laws, decrees, judicial decisions, treaties, diplomatic correspondence and other documents relevant to: (1) treaties; (2) arbitral procedure, and (3) the regime of the high seas,” the French Government replied that it “unfortunately cannot consider communicating all the documentary material which has appeared on these three classic topics, representing as it does several tons of its archives,” but that it was “prepared to supply the Commission with such of these texts as it possesses and as are requested in conformity with Article 19, paragraph 2” (U.N. Doc. A/CN.4/19, p. 27). Art. 19(2) refers to a “detailed request.” The request could have been made “detailed,” without undue effort, by compiling, within the three topics mentioned, an exhaustive catalogue of subjects. Yet it is clear that governments may be unable to comply with a request of this nature, essential to the scientific fulfillment of the task of the Commission, without considerable research conducted by staff deputed for that purpose. There also arises the question whether the Commission, with the resources available to it, is in the position to make full use of the material thus supplied.

39 The Survey of International Law in Relation to the Work of Codification of the International Law Commission, prepared in 1948 and published as Memorandum submitted by the Secretary General, expressed, on p. 17, the optimistic view that “in two decades or so” the work of the Commission may “cover practically the entire field of international law.” It seems, in the light of the first five years of the activity of the Commission, that having regard to the resources open to it by virtue of its Statute and the time available for its periodic meetings, the completion of that task may require several generations. By that time the first products of its labors would necessarily become obsolete. A general survey of the results of the first five years of the activity of the Commission illustrates this aspect of the situation. In 1949 the Commission adopted a Draft Declaration of Rights and Duties of States. In 1950 it drafted its “formulation of the Nürnberg Principles.” In 1951 it adopted a tentative “Draft Code of Offences against the Peace and Security of Mankind” and a Report on Reservations to Multilateral Treaties. It finally adopted the Draft Code in 1954. In 1953 it submitted a final draft code on certain aspects of arbitral procedure. Of the three major topics—treaties, régime of the high seas, and nationality—of its systematic program of codification none was within sight of completion at the end of the first five years’ period of its activity except for isolated subjects, namely, the Articles on the Continental Shelf and the Draft Conventions on Elimination and on Reduction of Future Statelessness and the incomplete Draft Articles on the Régime of the Territorial Sea. The Commission also submitted, in 1954, proposals for the reduction of existing statelessness.

40 There is room for considering to what extent the requisite expert element in the composition of the Commission may be effectively secured by a method of election—or appointment—differing from that adopted in its Statute as formulated in 1948. Such method might consist in appointment by separate or joint action, possibly with or without association with the General Assembly, of other organs of the United Nations, such as the Secretary General or the International Court of Justice.