tion of Germany, at any rate, a restatement of the laws of war would probably have produced few desirable results. Even the governments of countries opposed to Germany in the war might have been reluctant to state their own practice in the form of legislation which might later embarrass them, as instanced by the failure of the governments represented at the Washington Conference on Limitation of Armaments in 1922 to ratify the treaty relating to the use of submarines and poison gas in war. In addition, the uncertainty of international relations in 1920, the precarious stage of the new experiment in international organization, and the extreme difficulty of effecting the necessary reconciliation between various states, rendered the time most inopportune for such an attempt as the Advisory Committee envisaged. 9 It is not surprising, therefore, that when the recommendation came before the Council and Assembly of the League of Nations there was little enthusiasm for it and it failed of adoption. Lord Robert Cecil, representing the Union of South Africa, declared that it would be "a very dangerous project at this stage in the world's history," and that we had not "arrived at sufficient calmness of the public mind to undertake" such a step "without very serious results to the future of international law." Moreover, in the meetings of the International Labour Conference in 1919 and 1920, in the meeting of the Paris Passport Conference in 1920, in the meeting of the Financial Conference at Brussels in 1920, and in the meeting of the Conference on Transit and Communications then planned for 1921, a beginning had been made with what promised to be a very fruitful functional development of international law. It was not until this new process had been more thoroughly established that the nations represented in the Assembly of the League of Nations were willing to consider a more general effort to develop international law. At the Fifth Assembly of the League of Nations, on September 8, 1924, Baron Marks von Würtemberg, Minister of Foreign Affairs of Sweden, offered the following resolution: 10 The Assembly: Taking note of the report of the Council on the work accomplished by the League of Nations for the conclusion of agreements on matters of international law; and Recognizing the desirability of incorporating in international conventions or in other international instruments certain items or subjects of international law which lend themselves to this procedure, such conventions or such instruments to be finally established by international conferences convened under the auspices of the League of Nations, after preliminary consultation with Governments and experts: Requests the Council: (1) To invite the Members of the League of Nations to signify to the Council the items or subjects of international law, public or private, • Records of the First Assembly, Plenary Meetings, p. 746. 10 Records of the Fifth Assembly, Minutes of First Committee, p. 97. which in their opinion may be usefully examined with a view to their incorporation in international conventions or in other international instruments as indicated above; (2) To address a similar invitation to the most authoritative organizations which have devoted themselves to the study and development of international law; (3) To examine, after the necessary consultations, the measures which may be taken with respect to the various suggestions presented in order to enable the League of Nations to contribute in the largest possible measure to the development of international law; (4) To present a report to the next Assembly on the measures taken in execution of this resolution. This resolution was carefully studied in the First Committee of the Assembly, and after a report by a subcommittee, it was adopted by the Fifth Assembly on September 22, 1924, in the following terms. 11 The Assembly: Considering that the experience of five years has demonstrated the valuable services which the League of Nations can render towards rapidly meeting the legislative needs of international relations, and recalling particularly the important conventions already drawn up with respect to communications and transit, the simplification of customs formalities, the recognition of arbitration clauses in commercial contracts, international labour legislation, the suppression of the traffic in women and children, the protection of minorities, as well as the recent resolutions concerning legal assistance for the poor; Desirous of increasing the contribution of the League of Nations to the progressive codification of international law: Requests the Council: 12 To convene a committee of experts, not merely possessing individually the required qualifications but also, as a body, representing the main forms of civilisation and the principal legal systems of the world. This committee, after eventually consulting the most authoritative organisations which have devoted themselves to the study of international law, and without trespassing in any way upon the official intiative which may have been taken by particular States, shall have the duty: (1) To prepare a provisional list of the subjects of international law the regulation of which by international agreement would seem to be the most desirable and realisable at the present moment; and (2) After communication of the list by the Secretariat to the Governments of States, whether Members of the League or not, for their opinion, to examine the replies received; and (3) To report to the Council on the questions which are sufficiently ripe and on the procedure which might be followed with a view to preparing eventually for conferences for their solution. It is to be noted that the resolution of the Fifth Assembly did not envisage the preparation of any global code of international law, nor did the Assembly seek to have the Committee of Experts invested with any power to attempt "Records of the Fifth Assembly, Plenary Meeting, p. 125. "The Council set up the committee by a decision taken on December 11, 1924. League of Nations Official Journal, February, 1925, p. 143. a codification of single subjects. The committee set up by the Council is instructed to consult the most authoritative organizations which have devoted themselves to the study of international law. It is warned to trespass in no way on the official initiative which may have been taken by particular states, for dealing with particular subjects. It is to prepare a provisional list of subjects which may be usefully regulated by international agreement at the present time. It is to have this list communicated for comment to the governments of all states whether members of the League or not, and after studying such comments, it is to report to the Council as to the possibility of a fruitful attempt at codification, and as to the method which could be followed in undertaking it. The Assembly also envisaged the possibility of eventual conferences which might deal with the subjects selected by the committee. The procedure is to be compared with that which was outlined in the Convention of Rio de Janeiro of August 23, 1906, setting up the International Commission of Jurists. The Rio de Janeiro commission was to draft codes which were to be submitted to the Fourth International Conference of American States for embodiment in one or more treaties. The Santiago Conference of 1923 contemplated that "the resolutions of the Commission of Jurists shall be submitted to the Sixth International Conference of American States, in order that, if approved, they may be communicated to the governments and incorporated in the convention." It thus appears that the resolution of the Fifth Assembly is much more restricted, and there is no danger of hasty action which might later be regretted. The committee constituted under this resolution has been christened, somewhat ambitiously, "Committee of Experts for the Progressive Codification of International Law." It consists of the following members: M. Hammarskjöld (Sweden), Governor of Upsala, President. Professor Diena (Italy), Professor of International Law at the University of Pavia. Professor C. Botella (Spain), President of the Franco-German Mixed Tribunal. Professor J. L. Brierly (Great Britain), Professor of International Law at All Souls College, Oxford. M. Henri Fromageot (France), Jurisconsult to the Ministry of Foreign Affairs of the French Republic. Dr. H. Gustavo Guerrero (Salvador), Minister at Paris. Dr. B. C. J. Loder (Netherlands), Judge of the Permanent Court of International Justice. Dr. Barboza de Magalhaes (Portugal), Professor of Law at the University of Lisbon. Dr. Adalbert Mastny (Czechoslovakia), Minister at Rome. Sir Abdur Rahim (India), Member of the Council of India. Dr. M. Matsuda (Japan). Dr. Szymon Rundstein (Poland). Professor Walther Schücking (Germany). Dr. José Léon Suarez (Argentine), Dean of the Faculty of Political Science at the University of Buenos Aires. Professor Charles De Visscher (Belgium), Professor of Law at the University of Ghent. Dr. Wang-Chung-Hui (China), Deputy-Judge of the Permanent Court of International Justice. Mr. George W. Wickersham (United States), President of the American Law Institute. Thus constituted, the committee is unquestionably representative of the main forms of civilization and the principal legal systems of the world. It also has the advantage of containing in its personnel men familiar with different phases of international life, and the members of the committee would seem to enjoy within their own countries the confidence of their governments and their fellows in the legal profession. The committee held its first session at Geneva from April 1 to April 8, 1925, and selected for consideration a number of subjects and subcommittees and rapporteurs to investigate each of them. The topics chosen by the committee at its first session for investigation and consideration, were listed in the following manner: (1) The Committee appoints a Sub-Committee to enquire: (a) Whether there are problems arising out of the conflict of laws regarding nationality the solution of which by way of conventions could be envisaged without encountering political obstacles; (b) If so, what these problems are and what solution should be given to them. Sub-Committee: M. RUNDSTEIN (Rapporteur), (2) The Committee appoints a Sub-Committee to examine whether there are problems connected with the law of the territorial sea, considered in its various aspects, which might find their solution by way of conventions and, if so, what these problems are and what solutions should be given to them. In particular, the Sub-Committee will enquire into the rights of jurisdiction of a State over foreign commercial ships within its territorial waters or in its ports. Sub-Committee: M. SCHÜCKING (Rapporteur), (3) The Committee appoints a Sub-Committee to examine what are the questions concerning diplomatic privileges and immunities which would be suitable for regulation by way of conventions and what provisions on this subject could be recommended. Sub-Committee: M. DIENA (Rapporteur), (4) The Committee appoints a Sub-Committee to enquire into the legal status of Government ships employed in commerce with a view to the solution by way of conventions of the problems raised thereby. Sub-Committee: M. DE MAGALHAES (Rapporteur), Mr. BRIERLY. (5) The Committee appoints a Sub-Committee to examine whether there are problems connected with extradition which it would be desirable to regulate by way of general conventions and, if so, what these problems are and what solutions should be given to them. Sub-Committee: Mr. BRIERLY (Rapporteur), (6) The Committee appoints a Sub-Committee to examine: (a) Whether, and in what cases, a State may be liable for injury caused on its territory to the person or property of foreigners; (b) Whether, and, if so, in what terms it would be possible to contemplate the conclusion of an international convention providing for the ascertainment of the facts which may involve liability on the part of a State, and forbidding in such cases recourse to measures of coercion before the means of pacific settlement have been exhausted. Sub-Committee: M. GUERRERO (Rapporteur), (7) The Committee appoints a Sub-Committee to examine the possibility of formulating rules to be recommended for the procedure of international conferences, and the conclusion and drafting of treaties, and what such rules should be. Sub-Committee: M. MASTNY (Rapporteur), (8) The Committee appoints a Sub-Committee to examine whether and to what extent, it would be possible to establish, by an international convention, appropriate provisions to secure the suppression of piracy. Sub-Committee: M. MATSUDA (Rapporteur), M. WANG-CHUNG-HUI. (9) The Committee appoints a Sub-Committee to examine whether, and to what extent, it would be possible to draw up treaty provisions concerning the application in international law of the conception of prescription, whether as establishing or as barring rights, and what such provisions should be. Sub-Committee: M. DE VISSCHER. (10) The Committee appoints a Sub-Committee to enquire with reference, inter alia, to the treaties dealing with the subject, whether it is possible to establish, by way of international agreement, rules regarding the exploitation of the products of the sea. Sub-Committee: M. SUAREZ. (11) The Committee appoints a Sub-Committee to examine whether it is possible to lay down, by way of conventions, principles governing the criminal competence of States in regard to offences committed outside their territories and, if so, what these principles should be. Sub-Committee: Mr. BRIERLY (Rapporteur), M. DE VISSCHER. |