4INDEED A LONG JOURNEY, THE INTERNATIONAL LAW HAD TO

TRAVEL IN THE PROCESS OF CODIFICATION - COMMENT

Introduction
Codification of International Law has already evolved over a long journey, of over a
century, pari passu with the progressive development of the discipline. 1There are those
who identify the two Hague Peace Conferences (of 1899 and 1907) as ' the first modern
codification conferences'. Today the International Law Commission has a mandate from
the U.N. General Assembly to codify and progressively develop international law. For
most of the ILCs history, the lions share of its work took the form of draft articles
adopted by the General Assembly as the basis for multilateral conventions. But if we go
back in time we will see that the actual process of some sort of codification of Public
International Law started around 23 BC or nearly 4300 years ago.
Codification is the process through which rules of law are committed to written form. It
is usually mentioned in one breath with progressive development. The process of
codification tends to change the law, because transforming unwritten rules into written
rules requires precision, systematization, and definition of the relevant terms and rules.
The term codification ordinarily implies the process of reducing the generally existing
principles of a branch of law into a Code capable of enactment and reference. Therefore
it connotes a systematic arrangement of the hitherto existing diverse rules spread over
a plethora of judicial decisions and juristic opinions. Thus codification does not give birth
to rules or principles of a branch of law but only assists to consolidate, compile or give
shape to the existing rules of a particular branch of law or in general. 2
Oppenhiem holds that codification in respect to international law implies a two fold
process.3

1 Trindade,Antnio Augusto Canado,International Law for Humankind: Towards a New Jus

Gentium, Second Revised Edition

2 Brownlie, Ian,Principles of Public International Law, p28, (Oxford, London, 6th edition,
2003)

(a) process of translating into statutes or conventions, customary law and rules arising
from judicial decisions,
(b) process of securing, by means of a general convention, agreement among states
upon certain topics of international law.
As all authors agree, pure codification does not exist; it always involves some
measure of change. When this change is substantial, it is often is called progressive
development or legislation. History knows both epic failures and celebrated
successes. The former includes the 1930 Hague Conference and some of the projects
of the International Law Commission (ILC). The latter includes the Vienna Convention
on the Law of Treaties and the Vienna Conventions on Diplomatic and Consular
Relations. Codification is often seen as beneficial, increasing certainty through the rule
of law and the development, coherence, and sophistication of international law.4
Time lines : Evolution And Codification of International Law
Looking at Antiquity : The earliest instance of some sort of International
understanding can be traced to roughly between 2600 - 2350 BC. It was between
5000-3500 BC that the first city-states gradually developed in southern Mesopotamia. 5
Simultaneously, about BC 35006 or so writing began to be developed, first based on
pictograms, it took about a thousand years to evolve into a full cuneiform script. Thus
started the advent of recorded history. Considered to be the cradle of civilization by the
Western world, Mesopotamia included Sumer and the Akkadian, Babylonian, and
Assyrian empires, all native to the territory of modern-day Iraq . As city-states began to
grow, their spheres of influence overlapped, creating arguments between other city
states, especially over land and canals.7These arguments were recorded in tablets
several hundreds of years before any major war -- the first recording of a war occurred
3 Oppenheim, International Law, p97, (Robert Jennings & Arthur Watts , Universal, New
Delhi, 9th edition, 1996

4 http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo9780199796953-0079.xml- Oxford Bibliographies : accessed on 10 November 2015

5 http://www.timemaps.com/civilization-ancient-mesopotamia accessed on 08 November

2015

6 ibid

around 3200 BC but was not common until about 2500 BC. 8 It was in BC 2450 Lagash
and the neighbouring city of Umma fell out with each other after a border dispute and
warfare was incorporated in the Mesopotamian political system. 9 One of the earliest
examples of treaties includes an agreement between the rulers of the city-states of
Lagash and Umma in Mesopotamia around BC 2100, inscribed on a stone block,
setting a proscribed boundary between their two states. 10 From this point forwards,
warfare was incorporated into the Mesopotamian political system. At times a neutral city
may act as an arbitrator for the two rival cities. This helped to form unions between
cities, leading to regional states.
Thereafter, around 1000 BC, there is a record of an agreement signed between
Ramses II of Egypt and the king of the Hittites establishing "eternal peace and
brotherhood"11 between their two nations: dealing with respect for each others territory
and establishing a form of defensive alliance. The ancient Greeks before Alexander the
Great formed many small states that constantly interacted. In peace and in war, an
inter-state culture evolved that prescribed certain rules for how these states would
interact. These rules did not apply to interactions with non-Greek states, but among
themselves the Greek inter-state community resembled in some respects the modern
international community. Ancient Sumer's Code of Ur-Nammu was compiled circa 2100
- 2050 BC, and is the earliest known surviving civil code. Three centuries later, the
Babylonian king Hammurabi ( BC 1810-1750) enacted the set of laws named after
him.12
7 https://en.wikipedia.org/wiki/Mesopotamia accessed on 08 November 2015

8 ibid

9 https://en.wikipedia.org/wiki/Lagash accessed on 10 November 2015

10 https://en.wikipedia.org/wiki/History_of_public_international_law#cite_note-Nussbaum-2
accessed on 08 November 2013

11 https://en.wikipedia.org/wiki/History_of_public_international_law#cite_note-Nussbaum-2
accessed on 10 November 2015

12 9 https://en.wikipedia.org/wiki/Hammurabi accessed on 10 November 2015

Besides religious laws such as the Torah, important codifications were developed in
the ancient Roman Empire, with the compilations of the Lex Duodecim Tabularum and
much later the Corpus Iuris Civilis. These codified laws were the exceptions rather than
the rule, however, as during much of ancient times Roman laws were left mostly
uncodified.
The first permanent system of codified laws could be found in China, with the
compilation of the Tang Code in AD 624. 13 This formed the basis of the Chinese criminal
code, which was then replaced by the Great Qing Legal Code, which was in turn
abolished in 1912 following the Xinhai Revolution and the establishment of the Republic
of China. The new laws of the Republic of China were inspired by the German codified
work, the Brgerliches Gesetzbuch. 14 A very influential example in Europe was the
French Napoleonic code15 of 1804, but this pertains to later times.
Another early system of laws is Hindu law framed by Manu and called as Manu
Smriti16, dating back to the 2nd century BC. The use of civil codes in Islamic Sharia 17
law began with the Ottoman Empire in the 16th century AD.
The Roman Empire (BC 27 - AD 285/395) : Coming on to Roman times, the Roman
Empire (BC 27 - AD 285/395) did not develop an international law, ''as it acted without
regard to any external rules in its dealings with those territories that were not already
part of the empire''.18 The Romans did, however, form municipal laws governing the
13https://en.wikipedia.org/wiki/Tang_Code accessed on 10 November 2015

14 https://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch accessed on 10 November

2015

15 2 https://en.wikipedia.org/wiki/Napoleonic_Code accessed on 10 November 2015

16 https://en.wikipedia.org/wiki/Manusm%E1%B9%9Bti accessed on 09 November 2015

17 https://en.wikipedia.org/wiki/Sharia accessed on 10 November 2015

18 https://en.wikipedia.org/wiki/History_of_public_international_law : History of public

international law accessed on 10 November 2015

interactions between private Roman citizens and foreigners. These laws, called the jus
gentium (as opposed to the jus civile governing interactions between citizens) codified
some ideas of basic fairness, and attributed some rules to an objective, independent
'natural law.' These jus gentium ideas of fairness and natural law have survived and are
reflected in modern international law.19
Rennaisance ( 14 TO 17 Century) : The history of public international law examines
the evolution and development of public international law in both state practice and
conceptual understanding. Modern international law developed out of Renaissance
Europe and is strongly entwined with the development of western political organisation
at that time. The development of European notions of sovereignty and nation states
would necessitate the development of methods for interstate relations and standards of
behaviour, and these would lay the foundations of what would become international law.
''However, while the origins of the modern system of international law can be traced
back 400 years, the development of the concepts and practices that would underpin that
system can be traced back to ancient historical politics and relationships thousands of
years old. Important concepts are derived from the practice between Greek city-states
and the Roman law concept of ius gentium (which regulated contacts between Roman
citizens and non-Roman people)''.20
The Westphalian Treaties : These treaties of 1648 were a turning point in
establishing the principle of state sovereignty as a cornerstone of the international order.
However the first attempts at formulating autonomous theories of international law
occurred before this, in Spain, in the 16th century. '' Most prominent among the early
theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco
Surez. Surez is especially notable in this regard in that he distinguished between ius
inter gentes and ius intra gentes which he derived from ius gentium (the rights of
peoples). Ius inter gentes corresponds to modern international law. In 1625, Hugo
Grotius followed with the first systematic treatise on international law, 'de iure belli ac
pacis', which dealt with the laws of war and peace. One important aspect of Grotius's
treatment of international law is that he no longer bases it exclusively upon natural law,
but also accepts that states among themselves can also create binding rules of law (ius
voluntarium'').21
19 ibid

20 ibid

21 ibid

Pre and Post World War I : A series of World Conferences had begun at The Hague
in 1899. At the second Hague peace conference, inspired by President Roosevelt and
attended by the representatives of 26 nations in 1907, the basis was laid for a third
conference, to be held at The Hague in 1914. This third conference was to have made a
beginning upon the progressive codification of international law. Governments were
requested in the meantime to give consideration to plans for the choice of judges to
serve on a permanent court of international justice, which could be granted
affirmative (compulsory) jurisdiction over legal disputes between nations.
The third Hague conference, projected for 1914, was indefinitely postponed by the
outbreak of the World War. At the end of World War I, victorious states had created the
League of Nations, predecessor organization to the United Nations and a body charged
with the at least theoretical prevention of another bloody war. Several attempts were
made in the effort to codify international law. The work which led to the International Law
Commission was begun in the Resolution of the Assembly of the League of Nations of
22 September 1924, which established the Committee of Experts for the Progressive
Codification of International Law, consisting of 17 members, for the purpose of making
recommendations as to which issues required to be addressed in international law and
the steps desirable to that end. The committee's work led to the League of Nations
Codification Conference of 1930, which dealt mainly with the issues of nationality laws,
territorial waters and state responsibility to damage caused to foreign nationals. 22
At the same time, states realized that an international arbitrator may be needed in
other substantive areas, such as health, labor, or communications law. In other words,
states seemed to realize that if they achieved coordination in substantive areas of law,
then they would be less likely to engage in violent conflict in general. Thus, the League
of Nations was outfitted with special offices, such as the International
Telecommunication Union and the International Labour Office, charged with the task of
studying and promoting international cooperation on various issues of international
interest. Along the same lines of thinking, the Permanent International Court of Justice
was created, leading at least some to believe that the peaceful settlement of disputes
through international law was possible. 23
Post World War II : The end of World War II saw the creation of the United Nations,
the supreme international organization, charged with many tasks but most importantly,
22 https://en.wikipedia.org/wiki/International_Law_Commission accessed on 12 November
2015

23 Cleveland-Marshall College of Law Research Paper 08-150 March 2008 'The Evolution of
International Law' By Milena Sterio

conceived as a global peacekeeper that would replace any unilateral use of force with
joint decision making and acting on the international legal scene. The United Nations
adopted many concepts of the League's resolution in Article 13, Paragraph 1 of the
Charter of the United Nations, which stated:
"1. The General Assembly shall initiate studies and make recommendations for the
purpose of: a. ... encouraging the progressive development of international law and its
codification."
On December 11, 1946, The General Assembly passed Resolution 94, which called to
establish a committee of legal experts to make recommendations to the UN SecretaryGeneral on the ways the General Assembly could encourage the progressive
development of international law and its codification. The committee of experts
consisted of 17 members and convened from May 12 to June 17, 1947. It
recommended to establish a permanent UN commission to promote these
objectives.On November 21, 1947, the UN General Assembly passed Resolution 174,
which provided for the creation of an "International Law Commission" in order to fulfill
the obligations of the Charter. To the resolution was attached the statute of the
Commission, which defined its purposes as being:
(a) Promoting the codification of international law.
(b) Solving problems within both public and private international law.
The Commission consists of 34 members elected by the General Assembly. Members
act as individuals and not as officials representing their respective states.The work of
the Commission is regulated by its statute, which was initially approved by the General
Assembly on November 21, 1947, and amended on December 12, 1950, December 3,
1955, and November 18, 1981.It consists of 34 members (originally there were 15) who
all must be experts on international law, elected to the position by the General Assembly
from a list of candidates nominated by governments of member states in the UN. 24
Recent Developments
In the wake of the United Nations establishment, other regional bodies, assuming the
roles of regional peacekeepers, were equally born. In Europe, the North Atlantic Treaty
Alliance (NATO) was established with mostly Western European states as members,
as well as the United States, to counter the threatening power of the former Union of the
Soviet Socialist Republics (USSR) during the Cold War. In Africa, the Economic
Community of West African States (ECOWAS) was created as a mixed organization:
its mission is economic, but it encompasses mercenary forces that are charged with
24 ibid

keeping peace in West Africa. The nuclear age and the space age have led to new
developments in international law. The basis of space law was developed in the 1960s
under United Nations auspices. Treaties have been signed mandating the
internationalization of outer space (1967) and other celestial bodies (1979). The 1963
limited test ban treaty (see disarmament, nuclear) prohibited nuclear tests in the
atmosphere, in outer space, and underwater. The nuclear nonproliferation treaty (1968)
attempted to limit the spread of nuclear weapons. The agreements of the Strategic Arms
Limitation Talks, signed by the United States and the USSR in 1972, limited defensive
and offensive weapon systems. This was first of many international arms treaties signed
between the two nations until the dissolution of the Soviet Union.
Other treaties have covered the internationalization of Antarctica (1959), narcotic
interdiction (1961), satellite communications (1963), and terrorism (1973). The Law of
the Sea treaty (1982, in force from 1994) clarified the status of territorial waters and the
exploitation of the seabed. Environmental issues have led to a number of international
treaties, including agreements covering fisheries (1958), endangered species (1973),
global warming and biodiversity (1992). Since the signing of the General Agreement on
Tariffs and Trade (GATT) in 1947, there have been numerous international trade
agreements. The European Union (prior to 1993, the European Community) has made
moves toward the establishment of a regional legal system; in 1988 a Court of First
Instance was established to serve as a court of original jurisdiction on certain economic
matters. The establishment of the International Criminal Court (2002), with jurisdiction
over war crimes, crimes against humanity, and related matters, marked a major step
forward in international law.25
A Brief Summary of Codification of International Law
The codification process can be briefly summarised as under 26 :
(i) The history of codification of international law dates back to the end of 18th century
when the idea of codification of international law was conceived by Bentham.Before him

25 The Columbia Electronic Encyclopedia, 6th ed. Copyright 2012, Columbia University
Press - http://www.infoplease.com/encyclopedia/society/international-law-evolutioninternationallaw.html - accessed on 10 November 2015

26 Jain, Tarun,CODIFICATION AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL

LAW,http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120849 accessed on 17
November 2015

an unsuccessful attempt was made by the French Convention to draw up a declaration

of the Rights of Nations in 1792.
(ii) The actual beginning of the codification process can be traced back to 1873 when
the Institute of International Law was founded at Ghent in Belgium with one of the aims
to codify the existing principles of international law.
(iii) The First Hague Conference convened by Russian Emperor Nicholas II in 1899,
which resulted into two conventions in the form of code, namely:
(a) Convention on the Pacific Settlement of International Disputes
(b) Convention on the Laws of Customs of War on Land
(iv) The Second Hague Convention of 1907, which resulted into thirteen conventions
were one of the major codification exercises undertaken at that time.
(v) Thereon a lot of codification work was undertaken under the aegis of the League of
Nations. In fact Oppenhiem has noted that it was left to the League of Nations to
approach in a systematic manner the problem of codification properly called. The
League Council appointed a Committee of sixteen jurists in 1924 to report to the
Council, subjects which were ripe for codification. Thereon the Committee reported
seven subjects for codification and further in 1928 reported two more subjects for
codification.
Present Day Scope--International Law
As already mentioned, today the International law Commission under the agesis of the
United Nations (General Assembly), is the premier world body to "initiate studies and
make recommendations for the purpose of ... encouraging the progressive development
of international law and its codification".
The Commission held its sixty-seventh session at the United Nations European
Headquarters in Geneva from 4 May to 5 June and 6 July to 7 August 2015. The
following topics were on the programme of work of the Commission:
(a) Protection of persons in the event of disasters (not considered in 2015)
(b) Immunity of State officials from foreign criminal jurisdiction
(c) Subsequent agreements and subsequent practice in relation to the interpretation of
treaties
(d) Most-Favoured-Nation clause
(e) Provisional application of treaties

(f) Identification of customary international law

(g) Protection of the environment in relation to armed conflicts
(h) Protection of the atmosphere
(i) Crimes against humanity
(j) Jus cogens
Today International Law covers the entire gamut of inter- state relations to include 27 (a) International Human Rights and International Criminal Law
(b) Limitations on State Sovereignty
(c) Creation of New International Courts
(d) Creation of New Offenses
(e) Private International Law
(f) Creation of New Cross-Border Regulations
(g) State Reliance on International Law Domestically and in
International Relations
(h) Newly Created Individual Rights In Light of Globalized International Law
Has International Law And Its Codification Developed Fully?
Let us take the example of 'Self Defence' in International Law and see how customary
international law changes with time and interpretation of states. Has the content of self
defence changed or was it frozen in 1945? Some argue that the concept of self defence
was fixed once for all in 1945. Others see it as a 'dynamic concept which evolves and
changes over time'.28 Article 51 of the UN Charter refers to 'if armed attack occurs'-basically meaning 'self defence'. Arab-Israeli 1967 war, Nicaragua Case , GB's Caroline
case are three examples which show that the process of codification of International
Law is a continuous process of evolution and interpretation.
27 Cleveland-Marshall College of Law Research Paper 08-150 March 2008, The Evolution of
International Law, Milena Sterio

28 Alina, Kaczorowska Ireland,Public International Law,p695

Codification and Progessive Development of International Law

If one was to refer to Article 15 of the Statute of International Law Commission, it
provides, the expression progressive development of international law.Therefore
codification of international law is used for convenience as meaning the more precise
formulation and systematization of rules of international law in fields where there
already has been extensive state practice, precedent and doctrine.29 Justice Nagendra
Singh observes, mere codification without the element of progressive development
would defeat the very purpose of law-making by introducing the static concept of law''.
Thus it is now well recognised by all codifying institutions to consider equally the
developmental aspect while engaged in the codification of the law. In fact progressive
development is the very life and blood of codification. In short, therefore, the first
essential ingredient of codification is furnished by the aspect relating to progressive
development which must always remain the very pith of this theme. 30
Achievements and Failures
Achievements:In this long journey of codification there have been many achievements
and many failures in the recent times. The International Law Commission's work on
codification has led to the creation of a number of treaties and other works of
international law that are key to the present international legal order(a) The Vienna Convention on the Law of Treaties
(b) The Vienna Convention on Succession of States in respect of Treaties
(c) The Vienna Convention on Diplomatic Relations
(d) The Draft Articles on the Responsibility of States for Internationally Wrongful Acts
(e) The International Criminal Court, first proposed in December 1948 at the request of
the UN General Assembly.
(f) United Nations Convention on the Law of the Sea (UNCLOS)

29 SK, Kapoor, International Law and Human Rights, p92, (Central Law Agency: Allahabad,
14th edition, 2002

30 Judge Nagendra Singh, Codification and Progressive Development of International Law:

The Role of International Court of Justice, 18 IJIL 2 (1978).

Failures:One of the problems regarding the work of the commission is the capability of
governments to ignore its conclusions and refrain from accepting its recommendations
when formulating conventions. At the 63rd meeting on July 7, 1950, chairman Georges
Scelle complained that governments tended to ignore questions addressed to them by
the commission out of lack of interest in its work. 31
One criticism sounded about the work of the commission is that the brevity of its annual
sessions (10 to 12 weeks) does not allow thorough study of the problems under
discussion. Already at the 83 meeting of the commission, held on May 17, 1951,
commission member Georges Scelle suggested the only way to fix the problem was by
reforming the commission so that it would meet more often and whenever the Secretary
General desired so.32
Another criticism sounded already at the early history of the commission was made by
Colombian delegate Jose Maria Yepes that the commission refrained from formulating
principles on new issues and thus presents itself as incompetent. 33
Conclusion
Embracing the post-World War I ideas of preventing conflict by transferring substantive
decision-making in different areas to international bodies, international actors engaged
in negotiation to create international monetary, trade, economic, insurance, investment,
and other types of organizations. Thus, a multitude of international organizations were
created in the latter half of the 20th century, including the International Monetary Fund,
the WTO, the World Bank, the International Center for the Settlement of Insurance
Disputes (ICSID), World Intellectual Property Organization (WIPO), etc. Similarly,
states within the same regions acted to create regional organizations charged with
similar objectives. Organization for Security and Cooperation in Europe, Association of
Southeast Asian Nations, Organization of American States as well as the Organization
of African Unity are examples of such regional bodies.34 We can therefore safely
conclude that International Law is a dynamic and evolving law with an ongoing process
31 Yearbook of the ILC, 1950, vol. 1, p. 183

32 Yearbook of the ILC, 1951, vol. 1, p. 9

33 Yearbook of the ILC, 1950, vol. 1, p. 217

34 ibid

of codification as society evolves, keeping in view the needs of the times. The concept
of Jus Cogens represents a signal achievement both from practical and scientific point
of view. It introduces into International a dynamic concept capable of future
development and a new perspective.35

35 Eduardo, Jimnez de Archaga, International law in the past third of a century