jurists of all nations meets periodically, and has produced a number of drafts concerning various parts of International Law, and, in particular, a Draft Code of the Law of War on Land (1880), and a Draft Code of Maritime Warfare (1913). Likewise in 1873 was founded the Association for the Reform and Codification of the Law of Nations, which also meets periodically and which styles itself now the International Law Association. In 1874 the Emperor Alexander II. of Russia took the initiative in assembling an international conference at Brussels for the purpose of discussing a draft code of the Law of Nations concerning land warfare. At this conference jurists, diplomatists, and military men were united as delegates of the invited States, and they agreed upon a body of sixty articles which goes under the name of the Declaration of Brussels. But the Powers have never ratified these articles. In 1880 the Institute of International Law published its Manuel des Lois de la Guerre sur Terre. In 1887 Leone Levi published his International Law with Materials for a Code of International Law. In 1890 the Italian jurist Fiore published his Il Diritto internazionale codificato e la sua Sanzione giuridica, of which a fifth edition appeared in 1915. A French translation of the fourth edition appeared in 1911, and an English translation of the fifth edition appeared in 1916. In 1906 E. Duplessix published his La Loi des Nations. Projet d'Institution d'une Autorité nationale, législative, administrative, judiciaire. Projet de Code de Droit international public. In 1906 the Third Pan-American Conference agreed to establish an International Commission of Jurists for the purpose of preparing draft codes of Public as well as Private International Law.1 1 See A.J., vi. (1912), pp. 931-935. Work of the First Hague Peace Confer ence. In 1911 Jerome Internoscia published his New Code In 1913 the Institute of International Law published its Manuel de la Guerre maritime. § 31. At the end of the nineteenth century, in 1899, the so-called Peace Conference at the Hague, convened on the personal initiative of the Emperor Nicholas II. of Russia, showed the possibility that parts of the Law of Nations might well be codified. Apart from three declarations of minor value, and the convention concerning the adaptation of the Geneva Convention to naval warfare, this conference succeeded in producing two important conventions which may well be called codes-namely, first, the 'Convention for the Pacific Settlement of International Disputes,' and, secondly, the Convention with respect to the Laws and Customs of War on Land.' The first-named convention is of great practical importance, as the Permanent Court of Arbitration has in a number of cases successfully given its award. Nor can the great practical value of the second-named convention be denied. Although the latter contains, even in the amended form given to it by the second Hague Peace Conference of 1907, many gaps, which must be filled by the customary Law of Nations, and although it is not a masterpiece of codification, it represents a model, the very existence of which teaches that codification of parts of the Law of Nations is practicable, provided the Powers are inclined to come to an understanding. The first Hague Peace Conference therefore made an epoch in the history of International Law. § 32. Shortly after the Hague Peace Conference of 1899, the United States of America took a step with 1 See Alvarez, La Codification du Droit international, p. 276 n. the Peace regard to sea warfare similar to that taken by her in Work of 1863 with regard to land warfare. She published on Second June 27, 1900, a body of rules for the use of her navy Hague under the title, The Laws and Usages of War at Sea-the Conferso-called United States Naval War Code-which was the Naval drafted by Captain Charles H. Stockton, of the United Confer States Navy. Although, on February 4, 1904, this code was by authority of the President of the United States withdrawn, it provided the starting-point of a movement for codification of maritime International Law. No complete Naval War Code agreed upon by the Powers has as yet made its appearance, but the second Hague Peace Conference of 1907 produced not less than thirteen conventions, some of which are codifications of parts of maritime law. Three of the thirteen conventions, namely, that for the pacific settlement of international disputes, that concerning the laws and customs of war on land, and that concerning the adaptation of the principles of the Geneva Convention to maritime war, take the place of three corresponding conventions of the first Hague Peace Conference. But the other ten conventions were entirely new, and concern: the limitation of the employment of force for the recovery of contract debts, the opening of hostilities, the rights and duties of neutral Powers and persons in war on land, the status of enemy merchant ships at the outbreak of hostilities, the conversion of merchant ships into war ships, the laying of automatic submarine contact mines, bombardments by naval forces in time of war, restrictions on the exercise of the right of capture in maritime war, the establishment of an International Prize Court, and the rights and duties of neutral Powers in maritime war. To make the establishment of the proposed International Prize Court possible, a Naval Conference met ence and ence of London. Value of Codification of International tested. in London in November 1908, sat till February 1909, and produced the Declaration of London. Its nine chapters deal with blockade, contraband, unneutral service, destruction of neutral prizes, transfer to a neutral flag, enemy character, convoy, resistance to search, compensation. The Declaration of London has, however, not been ratified, and, in consequence, the Hague Convention concerning the establishment of an International Prize Court also remains unratified. § 33. In spite of the movement in favour of codification of the Law of Nations, there are many eminent jurists who oppose such codification. They argue that Law con- codification would never be possible on account of differences of languages and of technical juridical terms. They assert that codification would cut off the organic growth and future development of International Law. They postulate the existence of a permanent international court with power of executing its verdicts as an indispensable condition, since without such a court no uniform interpretation of controversial parts of a code could be possible. Lastly, they maintain that the Law of Nations is not yet, and will not be for a long time to come, ripe for codification. Those jurists, on the other hand, who are in favour of codification argue that the customary Law of Nations to a great extent lacks precision and certainty, that writers on International Law differ in many points regarding its rules, and that, consequently, there is no broad and certain basis for the practice of the States to stand upon. § 34. I am decidedly not a blind and enthusiastic admirer of codification in general. It cannot be maingeneral. tained that codification is everywhere, at all times, and under all circumstances opportune. Codification certainly interferes with the so-called organic growth of the law through usage into custom. It is true that a law, once codified, cannot so easily adapt itself to Merits of Codification in the individual merits of particular cases which come under it. It is further a fact, which cannot be denied, that together with codification there frequently enters into courts of justice, and into the area of juridical literature, a hair-splitting tendency, and an interpretation of the law, which often clings more to the letter and the word of the law than to its spirit and its principles. And it is not at all a fact that codification does away with controversies altogether. Codification certainly clears up many questions of law which have been hitherto debatable, but it creates at the same time new controversies. And, lastly, all jurists know very well that the art of legislation is still in its infancy and not at all highly developed. The hands of legislators are very often clumsy, and legislation often does more harm than good. Yet, on the other hand, the fact must be recognised that history has given its verdict in favour of codification. There is no civilised State in existence whose Municipal Law is not to a greater or lesser extent codified. The growth of the law through custom goes on very slowly and gradually, very often too slowly to be able to meet the demands of the interests at stake. New interests and new inventions very often spring up with which customary law cannot deal. Circumstances and conditions frequently change so suddenly that the ends of justice are not met by the existing customary law of a State. Thus, legislation, which is, of course, always partial codification, becomes a necessity, in the face of which all hesitation and scruple must vanish. Whatever may be the disadvantages of codification, there comes a time in the development of every civilised State when it can no longer be avoided. And great are the advantages of codification, especially of a codification that embraces a large part of the law. Many controversies are done away with. The science of law receives a fresh stimulus. |