Codification of International Law

1. Bilal Jatt
+923328686744

2.  It means the process reducing the whole body
of law into Code in the form of enacted law.
 “The task of codifying IL, 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.”
(Sir H. Lauterpacht)

3.  ‘Codification’ 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 the law unchanged.
 It is recognized by all codifying institutions to
consider equally the developmental aspect
while engaged in the codification of the law.
 The term codification denotes the creation of
codes, which are collection of written
statutes, rules, and regulations that inform
the public of acceptable and unacceptable
behavior.

4.  It dates back to the end of the 18th century
when the idea of codification of IL was
conceived by Bentham.
 Jeremy Bentha was a
British philosopher, jurist, and social
reformer.
 Before him an unsuccessful attempt was
made by the French Convention to draw up a
declaration of the Rights of Nations 1792.

6.  The Declaration of Paris occupies a place of
significance in the development of
codification of IL.
 The Declaration was signed by, Britain,
France, Austria, Russia, Turkey, Prussia,
Sardinia after the end of Cremean War in
1856.

7.  The Crimean War (October 1853 – February
1856) was a conflict in which Russia lost to an
alliance of France, Britain, the Ottoman
Empire, and (to a lesser extent)
the Piedmont-Sardinia (The Kingdom of
Sardinia).
 Austria, while neutral, played a role in
stopping the Russians.

9.  This declaration laid down the principles relating
to:
a. Abolition of privateering,
(A ship privately owned and crewed but
authorized by a government during
wartime to attack and capture enemy
vessels)
b. Non-capture of neutral goods except illegal
imports of war, under enemy flags
c. Blockade to be obligatory must be effective
a. Except smuggled goods of war, enemy goods
cannot be captured under neutral flag

10.  The first important attempt in this connection
was made in 1861 by an Austrian jurist, Alfons
Von Domin-Petrus-hnvecz who for the first time
showed the possibility of the codification of IL.
 In 1861, Prof. Trancis Lieber of Clumbia
University Law School, New York, attempted to
codify the laws of war.
 Oppenheim, Hall, Phillimore and Hyde also
deserve the credit of bringing out the rules of IL
in a system.

11.  In the first Hague Conference of 1899
resulted in adoption of the 2 conventions in
the form of a Code.
a) Convention on the pacific Settlement of
International Disputes
b) Convention on the Laws and Customs of
War on Land

12.  In the Second Hague Conference of 1907,
almost thirteen conventions related to
warfare and neutrality in war on land and sea,
the status of enemy merchantman at the
outbreak of war, bombardment by naval
forces etc.
 This conference was attended by 44 States.

13.  A naval conference was held in 1909 at
London to draw up an agreed list of
contraband goods.
 The agreement reached was incorporated in a
Declaration known as Declaration of London,
1909.

14.  The work of codification received a great
momentum under League of Nations.
 The League appointed a Committee of
sixteen Jurists in 1924 to report to the
Council subjects which were ripe for
codification:

15. 1. Nationality
2. Territorial waters
3. State responsibility for damage done in their
territory to the persons or property of
foreigners
4. Diplomatic immunities and privileges
5. Procedure of International Conferences and
Procedure for the conclusion and drafting of
treaties
6. Exploitation of the products of the sea
7. Piracy

16.  The Assembly decided that a conference
should be held at Hague for the purpose of
codifying the topics of:
a) Nationality
b) Territorial waters
c) Responsibility of States for the damage
done to foreigners in their territories

17.  In 1928 the Council reported the two topics
were also ripe for codification:
1. Law relating to functions and competence of
Consuls
2. The competence of Courts regarding foreign
States

18.  Hague Conference of 1930 may be said to be
the first conference on the codification of IL.
 Three committees were set up for each of the
topics, i.e. nationality, territorial waters etc.
 No general agreement could be reached in
regard to territorial waters and responsibility
etc. but the Committee on nationality
adopted several conventions on questions
relating to the conflict of Nationality Laws and
Statelessness.

19.  Article 13 (9) (a) U.N. Charter lays down that
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”.
 The most important task of codification is the
systematization and the progressive
development of its unstructured and
relatively unorganized body of law.

20.  The U.N. General Assembly took the task of
‘encouraging the progressive development of
IL and its codification’ in all seriousness.
 On December 11, 1946, the General
Assembly appointed a committee for the
progressive development of IL and its
codification.
 In 1947, the General Assembly decided to set
up an IL commission.

21.  Under Article 1 of the IL commission, the
Commission shall have for its object the
promotion of the progressive development of
IL & its codification.
 The Commission shall give top priority to
requests to the General Assembly to deal with
any question.
 It shall make a report to the General
Assembly on this matter.

22.  After the war, some of those responsible for
crimes committed during the Holocaust were
brought to trial. Nuremberg, Germany, was
chosen as a site for trials that took place in
1945 and 1946.
 Judges from the Allied powers—Great Britain,
France, the Soviet Union, and the United
States—presided over the hearings of twenty-
two major Nazi criminals.

23.  Twelve prominent Nazis were sentenced to
death. Most of the defendants admitted to
the crimes of which they were accused,
although most claimed that they were simply
following the orders of a higher authority.
 Those individuals directly involved in the
killing received the most severe sentences.
 Other people who played key roles in the
Holocaust, including high-level government
officials, and business executives who used
concentration camp inmates as forced
laborers, received short prison sentences or
no penalty at all.

24.  On Nov. 21 1947, the General Assembly
directed the IL Commission:
a) To formulate the principles of IL recognized
in the Charter as well as in the judgment of
the Nuremberg Tribunal
b) To prepare a draft Code of offences against
the peace & security of mankind

25. c. To prepare a draft declaration on the rights
and duties of States
d. To suggest the desirability and possibility of
establishing an international judicial body
for the trial of genocide and certain other
crimes.

26.  The Commission began work in 1949, in
respect of the codification of IL it decided to
give priority to three topics:
1. Law of Treaties
2. Arbitral Procedure
3. Law Relating to the High Seas

27.  Presently more important of the subjects
under the codification of the Commission are:
i. The Most favored Nation Clause
ii. State Responsibility
iii. Succession of States in Matters other than
Treaties
iv. Law of Non-Navigational uses of
International watercourses
 The work of the Commission has been of
great importance to the ICJ, for in
administrating law and justice the Court has
frequently relied upon it.

28.  On 21 May 1997, with approving votes from more than one
hundred UN Member States and under the sponsorship of
thirty-eight governments.
 The Convention represents the culmination of nearly four
decades of work on the topic by the United Nations and its
Member States.
 The UN Watercourses Convention establishes a framework for
the utilization, development, conservation, management, and
protection of international watercourses, even as promoting
finest and sustainable utilization thereof for present and
future generations, and accounting for the special situation
and needs of developing countries (Preamble).

29.  There are some important progressive
developments in the field of codification of IL:
 Geneva Conventions on the Law of Sea, 1958
 Vienna Convention on Diplomatic Relations,
1961
 1965 Convention on the Settlement of
Investment Disputes between the States &
Nationals of other States
 Vienna Convention on the Law of Treaties,
1969

30.  Convention on the Prevention & Punishment
of Crimes against Internationally Protected
Persons, 1973
 International Covenant on Human Rights,
1966.
 Vienna Convention on Consular Relations,
1963 etc.
 These conventions and Treaties have
provided the International sys. with a
legislative machinery which is not equivalent
to the Municipal Legislative system, but still
an important legislative machinery of State
legal system.

32. 1. One of the defect of IL is uncertainty.
Codification not only make rules clear and
certain but also settle conflicting &
divergent views.
2. It is helpful in filling number of gaps
existing in IL & also by providing for rules
where there is none.
3. It will bring uniformity in International legal
system.

33. 4. It will also go a long way to end or at least
greatly minimize the disagreement and
confusion that prevails on many important
matters
5. It will enhance the efficacy of IL by
increasing its binding force.
6. the ICJ and other Tribunals will find it
easier to apply & enforce codified IL.
7. It will be easier & convenient to amend the
codified IL so as to keep it at pace with the
tide of time.

34. 1. Codification is harmful for the natural
growth & future development of IL. This
defect can be remedied by a regular &
scientific revision of codes in order to
incorporate changers in international
conditions.
2. It makes the sys. of law too rigid &
unadoptable to new situations.

35. 3. Codification also makes the law too formal
& conservative. This defect can be removed
by progressive interpretation of IL.
4. New controversies arise due to codification.
5. It gives rise to controversies in
interpretation because of the being selective
tendency of Judges to interpret the law.
6. IL still being in its infancy, only a partial
codification is possible.

36. 7. Customary rules still form the bulk of IL and
many of them are not yet fully settled
covering the whole area of International
Rules.
 The contents of the Code can be settled
only if the representatives of the
Government can be made to agree upon
them.

37.  In the clarification, development &
codification of public IL; the UN’s
performance already exceeds the entire
record of the nineteenth century plus that of
the League of Nations.
 The role of ‘codification’ and progressive
development assumes profound significance
also because of the complex nature of
growing international relations, which call for
particular formulation & endorsement.

38.  Codification of IL is concerned it has to be
significantly legislative in character.
 The process of codification must essentially
embrace the need to change the law & to
induce Governments to accept the revision of
old laws & the formulation of new ones.