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THE PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW

BY MANLEY O. HUDSON

Bemis Professor of International Law, Harvard Law School

It was inevitable that the end of the World War should be followed by a revival of interest in the systematic development of the law of nations. Such a result was foreseen by W. E. Hall as long ago as 1890, but the extent of the revival and its consequences were pictured by him in terms altogether too sanguine. Many of the people who have expected the experience of the war to be capitalized in an immediate clarification of the laws of war must have been greatly disappointed by the events of the past years. A struggle which aroused so many passions, which divided a large part of the human race into hostile camps, could not possibly have produced the conditions necessary for building a new law which would embody the common views of people in many countries; but perhaps it did serve to direct attention to the lawless character of international relations in certain fields, and thus gave to politicians and lawyers opportunity for extending and improving the law governing such relations. If there has not been a general unanimity of opinion as to the method to be followed and the direction to be taken, the opportunity has not been neglected, and currents are now under way and agencies have been created which promise a continued if not a consistent progress for the future. The pre-war world was sadly lacking in machinery for the development of the law of nations. The First Peace Conference at The Hague in 1899 succeeded in promulgating three international conventions which were quite generally ratified, a Convention for the Pacific Settlement of International Disputes, a Convention respecting the Laws and Customs of War on Land, which embodied in some degree the Brussels Draft Declaration of 1874 dealing with the same subject, and a Convention for the adaptation of the Geneva Convention of 1864 to Maritime War. The Second Peace Conference at The Hague in 1907 promulgated thirteen new conventions, three of which amended the conventions of 1899, and eleven of which dealt with questions relating to the conduct of war. If these conventions constituted a significant contribution to international law, most of them did not deal with the problems most insistently emphasized in current public discussion, and they had comparatively little effect either on the life or on the political thought of the time.

The Hague Conferences created the Permanent Court of Arbitration, which continues to serve a most useful function, but they did not succeed in setting up any permanent machinery for the continuous handling of international problems and the continuous development of law. The Final Act

1 See Hall, International Law, 3rd ed. (1890), preface.

of the Second Conference contained a recommendation that a third conference be held, to consider among other things "the preparation of regulations relative to the laws and customs of naval war," and that a preparatory committee should be set up some two years in advance to ascertain "what subjects are ripe for embodiment in an international regulation." Some steps were later taken toward the establishment of such a preparatory committee; but on June 22, 1914, the Government of the United States suggested the postponement of the Conference from 1915 until 1916,2 and soon thereafter the war so changed the whole international situation that the voeu of 1907 was all but forgotten. With all that has intervened, the problem must now be considered from other angles. If a third general conference should ever be held at The Hague, it will be so different from the conferences of 1899 and 1907 and the conference originally envisaged for 1915 that it can hardly be said to be a continuance of the same series; it will probably not be convoked by a Czar of Russia, states will probably be represented which were hardly dreamed of in 1907, problems will probably be considered which will bear little resemblance to those dealt with by the previous conferences.

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In the western hemisphere, an effort was also under way before the war for systematizing the development of international law. At the Second Conference of American States held in Mexico, a convention was signed on January 27, 1902, which would have set up a "committee of five American and two European jurists" to draft a code of international law, but the convention was not ratified. At the Third Conference of American States at Rio de Janeiro in 1906, a new convention was signed creating a Committee of Jurists to prepare drafts of codes of both public and private international law, "regulating the relations between the nations of America." Professor John Bassett Moore was the representative of the United States on this commission. It was first planned that this commission should meet in 1907, but for various reasons, including delay in the ratification of the convention, the meeting was postponed until 1912. At that time six sub-committees were set up and their assignments covered a wide range of subjects; maritime war and the duties of neutrals, war on land and claims growing out of it, pacific settlement of disputes, status of aliens, domestic relations and succession, and other matters of private international law. A second meeting of the commission was set for 1914, but was not held.

The Fifth Conference of American States meeting at Santiago in 1923 recommended the reëstablishment of the committees set up at Rio de Janeiro in 1912, and envisaged the "gradual and progressive" codification of "American" international law. It recommended a second meeting of the Commis

U.S. Foreign Relations, 1914, p. 10.

See, however, the hearings before the Committee on Foreign Affairs of the U. S. House of Representatives, 69th Congress, 1st Session, May, 1926, in the course of which numerous persons advocated a Third Hague Conference for the Codification of International Law. 4 See Minutes and Documents of the Second Pan-American Conference, p. 716.

sion of Jurists in 1925, but this meeting has been postponed and will not be held before 1927. The Government of the United States will be represented on the Commission by Dr. James Brown Scott and Professor Jesse S. Reeves. In preparation for the meeting of the commission, the Governing Board of the Pan-American Union sought the coöperation of the American Institute of International Law, and on March 2, 1925, the Governing Board voted to transmit to the various governments a collection of thirty projects elaborated by the American Institute. These projects will undoubtedly prove of assistance to the commission when it meets, though few of them deal with matters of first importance, and some of them seem to be quite beyond the range of probable realization. The history of the Commission of Jurists first provided for in 1902, again agreed upon in 1906, actually brought together in 1912, reconstituted in 1923, and now possibly to meet for a second time in 1927, can hardly be very reassuring to those people who talk about the codification of international law as if it were to be achieved once and for all, at a single world conference working for perhaps a few months.

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The end of the war was bound to be followed by a fresh effort to achieve a restatement of certain parts of international law, as well as new international legislation to govern those relations of states not covered by the existing law. Such effort was naturally linked with the new method of conference and cooperation called the League of Nations, and the whole history of international law records no more significant development than the results which have been achieved in this relatively short period. A large body of new conventional law has come into existence which, if it does not greatly affect the principles of the customary law, has had the effect of widely extending the field of law-governed international relations. The multipartite conventions which have been drawn up since the war, by conferences held under the auspices of the League of Nations, include the following: twenty-three international labour conventions, some of which have been widely ratified; a convention and statute on freedom of transit, signed by some thirty-three states and adhered to by four states which did not sign; a convention and statute on the régime of navigable waterways of international concern, signed by some twenty-seven states and adhered to by four states which did not sign; a declaration recognizing the right to a flag of states having no sea-coast, signed by some thirty-one states and adhered to by seven others; a convention and statute on the international régime of railways, signed by some thirtythree states and adhered to by two others; a convention and statute on the international régime of maritime ports, signed by some twenty-five states and adhered to by three others; a convention relating to the transmission in

See the volume entitled Codification of American International Law, published by the Pan-American Union, Washington, 1925.

• The annex to the annual report to the Assembly of the League of Nations on the work of the Council and the Secretariat tabulates the progress of this process of international legislation. See League of Nations Document A, 6 (a), 1926, Annex.

transit of electric power, signed by some eighteen states; a convention relating to the development of hydraulic power affecting more than one state, signed by some seventeen states; a convention for the suppression of the traffic in women and children, signed by some thirty-two states and adhered to by five others; a convention for the suppression of the circulation of and traffic in obscene publications, signed by some forty-three states and adhered to by four others; a convention concerning the traffic in opium signed by some thirtyfour states; a convention for the supervision of the international trade in arms and ammunition and implements of war, signed by some thirty states; a protocol for the prohibition of the use in war of asphyxiating, poisonous, or other gases and of bacteriological methods of warfare, signed by some thirtyfive states; a protocol on arbitration clauses in commercial matters, signed by some twenty-eight states; a convention relating to the simplification of customs formalities, signed by some thirty-five states and adhered to by one other; a convention regarding the measurement of vessels employed in inland navigation, signed by some twenty states.

This international legislative activity has in no way arrested similar activities which were already under way on a more limited scale before the war. The work of the International Maritime Committee, for instance, has been continued with marked success, and it has had the satisfaction of seeing six of its codes of maritime law embodied in international conventions. The Brussels Conference of 1922 adopted a convention on the law of carriage of goods by sea which has now been signed by leading commercial states, as well as a convention on shipowner's liability, and a convention on maritime mortgages and liens. The very recent Brussels Conference of 1926 adopted a convention on immunity of state-owned ships, as well as a convention amending the 1922 convention on maritime liens and mortgages.

The President of the International Maritime Committee, M. Louis Franck, has recently assured us: "The time is thus not far off when by far the greatest part of the law relating to maritime commerce and shipowning will be uniform, and that it will be permissible to speak of the new law of the seas." Similarly, the Hague Conferences on Private International Law, organized before the war, have continued their work, and the fifth conference meeting at the Hague from October 12 to November 7, 1925, drew up two draft conventions for submission to the approbation of the governments represented, a draft convention dealing with bankruptcy, and a draft convention dealing with the recognition and execution of judicial decisions.

But a more systematic effort to restate, improve, and codify the traditional body of international law has been insisted upon, and a widespread public opinion has developed in certain countries which attaches great importance to such an effort. The insistence proceeds largely from the view that a re

7 Franck, "A New Law for the Seas: An Instance of International Legislation," 42 Law Quarterly Review, p. 25 (January, 1926); Franck, "The New Law for Seas. Further Progress," 42 Law Quarterly Review, p. 308 (July, 1926).

statement and codification might have some influence on the possibility and likelihood of war, and it seems probable that the large anticipations from such an effort are doomed to disappointment.

In 1920, the Advisory Commission of Jurists constituted by the Council of the League of Nations to draft the statute of the Permanent Court of International Justice, meeting at The Hague, went outside of its mandate to adopt a recommendation proposed by Mr. Elihu Root in the following terms:3 I. A new inter-State Conference, to carry on the work of the two first Conferences at the Hague, should be called as soon as possible for the purpose of:

1. Re-establishing the existing rules of the Law of Nations, more especially and in the first place, those affected by the events of the recent War;

2. Formulating and approving the modifications and additions rendered necessary or advisable by the War, and by the changes in the conditions of international life following upon this great struggle; 3. Reconciling divergent opinions, and bringing about a general understanding concerning the rules which have been the subject of controversy;

4. Giving special consideration to those points which are not at the present time adequately provided for, and of which a definite settlement by general agreement is required in the interests of international justice. II. That the Institute of International Law, the American Institute of International Law, the Union juridique internationale, the International Law Association and the Iberian Institute of Comparative Law, should be invited to adopt any method, or use any system of collaboration that they may think fit, with a view to the preparation of draft plans to be submitted, first to the various Governments, and then to the Conference, for the realisation of this work.

III. That the new Conference should be called the Conference for the Advancement of International Law.

IV. That this Conference should be followed by periodical similar conferences, at intervals sufficiently short to enable the work undertaken to be continued, in so far as it may be incomplete, with every prospect of success.

This recommendation does not seem to have been preceded by any extended discussion at the meetings of the committee. While there must be general approval of the desire to give every possible guide to the Permanent Court of International Justice to be used in its finding the law which it may apply, the recommendation of the committee could hardly have been more unhappily conceived. Any attempt at that time to restate the laws of war or to formulate the modifications made necessary by the World War, must almost certainly have tended to vindicate the views then prevailing among the governments of those countries which considered themselves victors in the war. It would have been difficult at that time to have had any collaboration from Germany or Russia or Turkey, and without the collabora

* Records of First Assembly, Meetings of Committee, I, pp. 422-464.

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