Merits of Codification of International Law. A more uniform spirit enters into the law of the country. New conditions and circumstances of life become legally recognised. Mortifying principles and branches are cut off with one stroke. A great deal of fresh and healthy blood is brought into the arteries of the body of the law in its totality. If codification is carefully planned and prepared, if it is imbued with true and healthy conservatism, many disadvantages can be avoided. And interpretation on the part of good judges can deal with many a fault that codification has made. If the worst comes to the worst, there is always a Parliament or other law-giving authority of the land to mend by further legislation the faults of previous codification. § 35. But do these arguments in favour of codification in general also apply to codification of the Law of Nations? I have no doubt that they do more or less. If some of these arguments have no force in view of the special circumstances of the existence of International Law and of the peculiarities of the Family of Nations, there are other arguments which take their place. When opponents maintain that codification would never be practicable on account of differences of language and of technical juridical terms, I answer that this difficulty is only as great an obstacle in the way of codification as it is in the way of contracting international treaties. The fact that such treaties are concluded every day shows that difficulties which arise out of differences of language and of technical juridical terms are not at all insuperable. Of more weight than this is the next argument of opponents, that codification of the Law of Nations would cut off its organic growth and future development. It cannot be denied that codification always interferes with the growth of customary law, although the assertion is not justified that codification cuts off such growth. But this disadvantage can be met by periodical revisions of the code, and by its gradual enlargement and improvement through enactment of additional and amending rules according to the wants and needs of the days to come. When opponents postulate an international court with power of executing its verdicts as an indispensable condition of codification, I answer that the nonexistence of such a court is quite as much (or as little) an argument against codification as it is against the very existence of International Law. If there is a Law of Nations in existence in spite of the non-existence of an international court to guarantee its realisation, I cannot see why the non-existence of such a court should be an obstacle to codifying the very same Law of Nations. It may indeed be maintained that codification is all the more necessary as such an international court does not exist. For codification of the Law of Nations and the solemn recognition of a code by a universal law-making international treaty would give more precision, certainty, and weight to the rules of the Law of Nations than they have now in their unwritten condition. And a uniform interpretation of a code is now, since the first Hague Peace Conference instituted a Permanent Court of Arbitration, and since the Covenant of the League of Nations contemplates the establishment of a Permanent International Court of Justice, much more realisable than in former times, although these courts will never have the power of executing their verdicts. But is the Law of Nations ripe for codification? I readily admit that there are certain parts of that law which would offer the greatest difficulty, and which therefore had better remain untouched for the present. But there are other parts, and I think that they con How Codification stitute the greater portion of the Law of Nations, which are certainly ripe for codification. There can be no doubt that, whatever can be said against codification of the whole of the Law of Nations, partial codification is possible and comparatively easy. The work done by the Institute of International Law, and published in the Annuaire de l'Institut de Droit international, gives evidence of it. And the number and importance of the law-making treaties produced by the Hague Peace Conferences and the Naval Conference of London, 1908-1909 (though the latter have not been ratified), should leave no doubt as to the feasibility of such partial codification. § 36. However, although possible, codification could hardly be realised at once. The difficulties, though not could be insuperable, are so great that it would take the work of realised. perhaps a generation of able jurists to prepare draft codes for those parts of International Law which may be considered ripe for codification. The only way in which such draft codes could be prepared consists in the appointment on the part of the Powers of an international committee composed of a sufficient number of able jurists, whose task would be the preparation of the drafts. Public opinion of the whole civilised world would, I am sure, watch the work of these men with the greatest interest, and the Parliaments of the civilised States would gladly vote the comparatively small sums of money necessary for the costs of the work. But in proposing codification it is necessary to emphasise that it does not necessarily involve a reconstruction of the present international order and a recasting of the whole system of International Law as it at present stands. Naturally, a codification would in many points mean not only an addition to the rules at present recognised, but also the repeal, alteration, and reconstruction of some of these rules. Yet, how ever this may be, I do not believe that a codification ought to be, or could be undertaken which would revolutionise the present international order and put the whole system of International Law on a new basis. The codification which I have in view is one that would embody the existing rules of International Law together with such modifications and additions as are necessitated by the conditions of the age and the very fact of codification being taken in hand. If International Law, as at present recognised, is once codified, nothing prevents reformers from making proposals which could be realised by successive codifications. Nations in CHAPTER II DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS I DEVELOPMENT OF THE LAW OF NATIONS Lawrence, §§ 13-22-Manning, pp. 8-21-Halleck, i. pp. 1-11-Walker, History, i. pp. 30-137-Taylor, §§ 6-29-Hershey, Nos. 16-53-Ullmann, §§ 12-14-Holtzendorff in Holtzendorff, i. pp. 159-386-Nys, i. pp. 1-22 -Martens, i. §§ 8-20-Fiore, i. Nos. 3-31-Calvo, i. pp. 1-32-Bonfils, Nos. 71-86-Despagnet, Nos. 1-19—Mérignhac, i. pp. 38-43-Laurent, Histoire du Droit des Gens, etc., 14 vols. (2nd ed. 1861-1868)—Ward, Enquiry into the Foundation and History of the Law of Nations, 2 vols. (1795)-Osenbrüggen, De Jure Belli et Pacis Romanorum (1836)—MüllerJochmus, Geschichte des Völkerrechts im Alterthum (1848) — Hosack, Rise and Growth of the Law of Nations (1882), pp. 1-226-Nys, Le Droit de la Guerre et les Précurseurs de Grotius (1882), and Les Origines du Droit international (1894)-Hill, History of Diplomacy in the International Development of Europe, vol. i. (1905), and vol. ii. (1906)— Cybichowski, Das antike Völkerrecht (1907) - Phillipson, The International Law and Custom of Ancient Greece and Rome, 2 vols. (1910)— Strupp, Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911)— Raeder, L'Arbitrage international chez les Hellènes (1912)—Conner, The Development of Belligerent Occupation (1912)—Tod, International Arbitration amongst the Greeks (1913)-Hershey in A.J., v. (1911), pp. 901-933-Audinet in R. G., xxi. (1914), pp. 29-63. No Law of $37. International Law as a law between soveantiquity, reign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be about four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations. |