Transcript
Codification and Progressive Development
of International Law
Bilal Jatt+923328686744
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)
Definition
‘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.
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.
History of Codification
Jeremy Bentha
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.
Declaration of Paris, 1856
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.
Cremean War
Cremean War
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 d. Except smuggled goods of war, enemy
goods cannot be captured under neutral flag
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.
Codification by individual writers
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
The Two Hague Conferences
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.
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.
Declaration of London
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:
Codification under League of Nations
1. Nationality2. Territorial waters3. State responsibility for damage done in
their territory to the persons or property of foreigners
4. Diplomatic immunities and privileges5. Procedure of International Conferences
and Procedure for the conclusion and drafting of treaties
6. Exploitation of the products of the sea7. Piracy
The Assembly decided that a conference should be held at Hague for the purpose of codifying the topics of:
a) Nationalityb) Territorial watersc) Responsibility of States for the damage
done to foreigners in their territories
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
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.
Hague Codification Conference of 1930
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.
Codification under the United Nations
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.
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.
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.
Nuremberg Trial
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.
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
Work of the IL Commission
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.
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
Presently more important of the subjects under the codification of the Commission are:
i. The Most favored Nation Clauseii. State Responsibilityiii. Succession of States in Matters other than
Treatiesiv. 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.
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).
Law of Non-Navigational uses of International watercourses
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
Recent Conventions and Treaties
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.
Merits and Demerits of Codification
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.
Merits of Codification
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.
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.
Demerits of Codification
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.
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.
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.
Conclusion
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.
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