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Some Observations on the Codification of International Law

Published online by Cambridge University Press:  04 May 2017

J. W. Garner
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Editorial Comment
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American Journal of International Law , Volume 19 , Issue 2 , April 1925 , pp. 327 - 333
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Copyright © by the American Society of International Law 1925

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References

1 The reasons for the English scepticism are set forth by Professor Baker, P. J. of the University of London in an article entitled “The Codification of International Law,” in the British Year Book of International Law for 1924, pp. 38 ff.Google Scholar Lord Robert Cecil speaking before the First Assembly of the League of Nations in September, 1920, on the recommendation of the Committee of Jurists, which accompanied their draft statute for the Permanent Court, expressed the traditional English view when he said: “We have not yet got to the stage where it is desirable to consider the codification of international law,” Records of the First Assembly, p. 745.Google Scholar See also the views of Oppenheim, International Law (3rd ed.), vol. I, pp. 42 ff.Google Scholar

2 Compare Root, Procs. Amer. Society of Int. Law, 1921, p. 13;Google Scholar Scott, Ibid., p. 24; Kuhn, Procs. Second Pan-Amer. Scientific Congress, vol. VII, p. 286;Google Scholar Lansing, this Journal, vol. 13, p. 638;Google ScholarPubMed and Sir Erie Richards, Brit. Yr. Bk. of Int. Law, 1921–22, p. 2.Google Scholar See also the recommendation of the Committee of Jurists, 1920, accompanying its draft statute of the Permanent Court.

3 This view appears to be held by Reeves, this Journal, vol. 15, p. 370;Google ScholarPubMed Baker, article cited, p. 50;Google Scholar and Wehberg, Problem of an International Court of Justice, pp. 12, 95.Google ScholarPubMed

4 Compare Sir Erie Richards, article cited above, who remarks that “the determination of the law in cases in which the usage of different nations is not uniform, and indeed on some points is directly opposed, and as to which no settled principles have as yet found acceptance, is a task beyond the competence of a judicial tribunal.” Also Lord Phillimore, who as a member of the Advisory Committee of Jurists says that they had “to fight some dangerous suggestions that if there was no definite rule of law (for the court to apply), the court should decide upon what it thought ought to be the law.” VI Transactions of the Grotius Society, 94.

5 For example, by Pollock, First Book of Jurisprudence, 3rd ed., p. 359, and by Holland, Studies in International Law, p. 77.Google ScholarPubMed

6 The British delegate to this conference was instructed “to abstain from taking part in any discussion on points extending to general princilpes of international law not already universally recognized and accepted.” This view was acted upon by the conference, the president of which announced that it had no other object than to consacrer les régies uni-versellement admises.

7 Compare as to this the preliminary report of the Committee on Codification, of the American Society of International Law, Proceedings of the Society, 1910, p. 211.Google Scholar

8 This Journal, vol. V, p. 579.Google Scholar See also his letter to Hays, W. H., Congressional Record, 66th Cong., First Ses. (June 23, 1919).Google Scholar Compare, to a similar effect, Octavia, La Mtthode pour la Codification du Droit International, Proceedings Second Pan-American Scientific Congress, vol. VII, p. 34;Google Scholar and Baldwin, “Should International Law be Codified?” Ibid., p. 281. Compare also Hyde, International Law, vol. I, p. 3.Google Scholar Oppenheim (op. tit. I, 46), while not in sympathy with the proposal to codify international law, admits that “codification on many points means not only an addition to the rules at present recognized/ but also the repeal, alteration and reconstruction of some of those rules.” Google Scholar

9 “Should International Law be Codified?” Proceedings of the Second Pan-American Scientific Congress, vol. VII, p. 290. Compare also an article by Professor J. L. Brierly, entitled “The Shortcomings of International Law,” British Year Book of International Law, 1924, pp. 4 ff., who observes that “whether fairly or not, the world regards international law today as in need of rehabilitation; and even those who have a confident belief in its future will probably concede that the comparatively small part that it plays in the sphere of international relations, as a whole, is disappointing.” Compare also Crocker (18 this JOURNAL 39) who remarks that “the world is clamoring for a lucid statement of existing international law, and the March of progress is demanding additions thereto.”

10 See the addresses and articles of Mr. Boot and Judge Baldwin cited above. See also the similar view of M. Alvarez in his book La Codification du Droit International, p. 279.

11 See the plea of Mr. Jackson H. Ralston for codification of this branch of international law, Proceedings Amer. Soc. of Int. Law, 1908, pp. 115 ff.

12 Compare Alvarez, op. cit., pp. 282–283.

13 As to the desirability of codification of the law of arbitral procedure, compare Dennis, VII, this JOURNAL, pp. 285 ff.

14 In this sense, see an unsigned article entitled “The League of Nations and the Laws of War,” British Year Book of International Law, 1920–21, pp. 109 ff.

15 Professor Schii eking suggested that the members of this preparatory committee should bring with them to the third conference instructions from their respective governments, and that in the formulation of these instructions eminent jurists should at least be given a hearing. See his International Union of the Hague Conferences, p. 205, The method adopted by the London Naval Conference constituted in this respect a marked improvement upon that of the Hague Conferences. Here each government represented prepared in advance a memorandum setting forth its views on each question listed on the program. These memoranda, assembled and logically arranged, served as the basis of the deliberations of the conference. This procedure is commended by Alvarez, op. cit., p. 263.

16 Messrs. Root, Baldwin, and Alvarez so maintain. See also to the same effect the Report of the Codification Committee of the American Society of International Law (Procs. 1910, p. 213), the recommendation of the Advisory Committee of Jurists of 1920, and the suggestion of President Coolidge in his message to Congress of December 4, 1924.

17 Article cited, p. 282. But it cannot be said that this was true of the commission of jurists which framed the rules for the regulation of the conduct of aerial war (1922). Although appointed by governments, they appear not to have been furnished with instructions and they were all eminent jurists or technical experts on aviation or military or naval matters.

18 Professor P. J. Baker in an article entitled “The Codification of International Law,” published in the British Year Book of International Law for 1924 (pp. 38 ff.), combats the proposal for the codification of international law by lawyers’ commissions, in so far as codification involves legislation. Codification in this latter sense, he says, is certain to raise questions of policy, the determination of which by lawyers is not at all likely to convince governments or secure their consent. He thinks the method heretofore followed with so much success, namely, legislation through the agency of law-making conferences is preferable. He adds that we have now developed or are in the progress of developing new legislative methods and machinery by which conferences can be quickly summoned, and that the League of Nations is now provided with technical commissions well qualified to do the necessary preparatory work. The formulation of the Barcelona and Geneva conventions of 1921 and 1923 are cited as examples of the dispatch and success with which this machinery may be employed. Apparently, he fully agrees with the American advocates of codification as to the necessity of the technical preparatory work, but thinks it can be better done by the technical commissions of the League than by bodies of jurists. So far as the elaboration of conventions upon matters concerning which the League is equipped with technical commissions this may be true, but the number of such commissions is relatively few. There are many fields of international relations needing legal regulation and requiring the collaboration of legal experts which the League is not yet in a position to supply.