Notes on Codification and Progressive Development of International Law

Meaning and definition

  • Codification traditionally means reducing the whole body of law into a Code in the form of enacted law; it connotes a systematic arrangement of rules of law already in existence.
  • According to Sir H. Lauterpacht, the task of codifying International Law must primarily bring about an agreed body of rules already covered by customary or conventional state practice.
  • Narrow vs. wide meaning:
    • Narrow: codification equals writing down already existing rules; may involve a few minor changes.
    • Wider: codification may involve modification of existing rules to keep pace with time and adapt to current needs.
  • Some scholars argue codification in the proper sense means writing down already existing rules, though practice may involve minor changes; an overly strict definition would defeat the purposes of codification.
  • Codification can also mean any systematic statement of the whole or part of the law in written form; it does not necessarily leave the main substance of law unchanged, though this may occur in some cases. In this sense, codification itself is a method of progressive development of law.
  • The two processes—progressive development and codification—are not mutually exclusive; they merge in practice.
  • Article 15 of the Statute of the International Law Commission (ILC): the expression “progressive development of International Law” is used to mean the preparation of draft conventions on subjects not yet regulated by international law or on topics where the law is not sufficiently developed.
  • Thus, "Codification of International Law" is used as a convenient term to denote the precise formulation and systematization of rules in fields with extensive state practice, precedent, and doctrine.
  • Mere codification without the element of progressive development would defeat the purpose of law‑making by introducing a static concept of law; codifying institutions recognize the need to consider developmental aspects as part of codification.
  • The progressive development aspect must be the life and blood of codification; essential if the legislative function is to be performed for the international community and world public order.

The two processes and their relationship

  • The processes of codification and progressive development are not exclusive; they merge in practice and contribute to the evolution of international law.
  • The developmental aspect provides the vitality needed for codification to remain relevant over time.

History and early milestones in codification

  • History traces codification ideas back to the end of the 18th century with Bentham popularizing the concept.
  • Before Bentham, an unsuccessful attempt by the French to codify rights of nations through the 1792 Declaration of the Rights of Nations (Declaration of Paris followed in 1856).
  • Early contributors to codification include various jurists and authors who produced codes or systematic statements of international law:
    • Alfons von Domin-Petrushnveez (1861, Austrian jurist)
    • Francis Liber (1883, attempted to codify the laws of war)
    • Bluntschli (1808)
    • David Dudley Field (1872)
    • Levi (1887)
    • PasqualeFiore (1890)
    • E. Duplexis (1908)
    • Jerome"Internescla" (1911)
    • Oppenheim, Hall, Phillimore, Hyde (credited with presenting international law in a systematic code form)
  • The Two Hague Conferences:
    • First Hague Conference (1899), convened by Tsar Nicholas II of Russia; produced two conventions in the form of a code:
    • Convention for the Pacification of International Disputes
    • Convention on the Laws and Customs of War on land
    • These conventions marked major milestones in international law codification.
    • Encouraged by the results, the Second Hague Conference (1907) produced thirteen conventions on warfare and neutrality relating to land and sea, status of enemy merchant ships, bombardment, and conversion of ships into warships; the conference was attended by 44 states.
  • Declaration of London (naval conference, 1909): aimed to draw up an agreed list of contraband goods; the agreement was incorporated but never entered into force due to non-ratification and the onset of World War I.

Codification under the League of Nations and the path to the United Nations

  • The League of Nations provided a major impetus for codification; it approached codification systematically.
  • A League Council committee of sixteen jurists, in 1924, identified subjects ripe for codification:
    1) Nationality; 2) Territorial waters; 3) State responsibility for damage within territory to foreigners; 4) Diplomatic immunities and privileges; 5) Procedure of International Conference and the drafting of treaties; 6) Exploitation of sea products; 7) Piracy.
  • On recommendation, the Assembly decided to hold a Hague conference to codify these topics: (a) nationality; (b) territorial waters; (c) responsibility of states for damage to foreigners.
  • The committee of experts continued its work and, by 1928, reported two additional ripe topics: (1) law relating to consular functions and competence; (2) competence of courts regarding foreign states.

The Hague Codification Conference of 1930

  • The 1930 Hague Conference is regarded as the first true conference on codification of international law.
  • Three committees were established for the topics: nationality, territorial waters, and the responsibility of states for damage to foreigners in their territories.
  • Outcome: no general agreement on territorial waters or on the responsibility of states for damages to foreigners; the committee on nationality adopted several conventions on issues related to nationality laws and statelessness.

Codification under the United Nations

  • UN Charter Article 13(1)(a): the General Assembly shall initiate studies and make recommendations for promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.
  • The GA treated codification and progressive development as urgent tasks; the General Assembly appointed a committee for the progressive development of international law and its codification on December 11, 1946.
  • In 1947, the GA established and elected the International Law Commission (ILC), which met on April 11, 1949. The ILC’s remit, per its Statute, is to promote progressive development of international law and its codification, survey the field to identify topics for codification, consider drafts proposed by member states or other bodies, and submit its recommendations to the General Assembly.
  • Article 24 of the ILC Statute mandates the Commission to consider ways to make evidence of customary international law more readily available, e.g., by collecting and publishing state practice and court decisions and reporting to the GA.
  • The ILC consists of 34 members elected for five-year terms. The establishment of the ILC marked a turning point in the codification movement, seen as the restatement of existing customary law or the formulation of new law in written form.
  • November 21, 1947: GA directed the ILC to (a) formulate principles of international law recognized in the UN Charter and in the Nuremberg judgments; (b) prepare a draft code of offences against the peace and security of mankind; (c) prepare a declaration on the rights and duties of states; and (d) suggest the desirability of an international tribunal for crimes such as genocide.
  • By 1971, the ILC had produced final drafts or reports on several topics, including: law of treaties; arbitral procedure; the regime of the High Seas; regime of territorial waters; nationality including statelessness; diplomatic intercourse and immunities; state responsibility; and many others.
  • The Commission also worked on topics such as the definition of aggression, international criminal jurisdiction, reservation of multilateral treaties, extended participation in multilateral treaties, and other related areas.
  • The ILC’s major practical contributions are in the fields of the law of treaties, diplomatic and consular relations, and the law of the sea; and it also publishes work to make customary international law more accessible, such as the United Nations Juridical Year Book and related UN publications.
  • The ILC’s membership expanded over time: in 1976 a new Commission of 25 legal experts was elected; in 1981, the Assembly enlarged the Commission to 35 members with regional distribution (Africa, Asia, East Europe, Latin America, Western Europe/other).
  • The ILC’s work has been widely praised for its contribution to codification and progressive development, including declarations, important principles, and new conventions drafted under its auspices.
  • The ILC maintains close ties with the International Court of Justice (ICJ); it keeps the Court informed of its activities and facilitates dialogue between the two bodies.
  • The recent sessions of the ILC (e.g., 57th and 58th sessions in 2005–2006) cover topics such as diplomacy, responsibility, shared natural resources, unilateral acts of states, reservations to treaties, expulsion of aliens, effects of armed conflict on treaties, fragmentation of international law, working methods, and cooperation with other bodies.

Notable conventions and treaties that illustrate codification and progressive development

  • Geneva Conventions on the Law of the Sea (1958)
  • Vienna Convention on Diplomatic Relations (1961)
  • Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)
  • Vienna Convention on the Law of Treaties (1969)
  • Vienna Convention on Consular Relations (1963)
  • Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973)
  • International Covenants on Human Rights (1966)
  • Convention on Registration of Objects Launched into Outer Space (1974)
  • International Convention on the Elimination of all Forms of Racial Discrimination (1966)
  • International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
  • Vienna Convention on the Representation of States in Their Relations with International Organizations of Universal Character (1975)
  • Vienna Convention on the Succession of States in Respect of Treaties (1978)
  • UN Convention on the Law of the Sea (1982)
  • Vienna Convention on State Property, Archives and Debts (1983)
  • Convention on the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and Their Destruction (1971)
  • UN Convention on the Rights of the Child (1989)
  • UN Convention on Bio-Diversity (1992)
  • UN Convention on Forestry (1992)
  • UN Framework Conventions on Climate Change (1992)
  • International Convention for the Suppression of Terrorist Bombings (1997)
  • International Convention for the Suppression of the Financing of Terrorism (1999)
  • International Convention for the Suppression of Acts of Nuclear Terrorism (2005)
  • In addition, the UN established a commission on international trade law (UNCITRAL) to support progressive development and codification in this field.
  • These conventions and treaties collectively constitute a vast international legislative framework that, while not replacing municipal systems, provides a parallel legal infrastructure to regulate a wide range of international activities, rights, and duties. As Javier Pérez de Cuéllar noted, the UN has, in the field of codification and progressive development, achieved historical levels of activity and influence in both land and sea and in outer space, constructing a legal network for international activities and norms.

Merits and demerits of codification

  • Merits:
    • (1) Codification clarifies and reduces obscurity and uncertainty in international law by reconciling divergent views.
    • (2) It helps fill gaps in international law by providing rules where none previously existed.
    • (3) It promotes uniformity in the international legal system.
    • (4) It reduces disagreement and confusion on important matters.
    • (5) It enhances the binding force of international law.
    • (6) It facilitates easier application and enforcement by the International Court of Justice and other tribunals.
    • (7) It enables easier amendments to keep pace with evolving conditions.
  • Demerits:
    • (1) Codification may hinder natural growth and future development of international law, a risk mitigated by regular and scientific revision.
    • (2) It can make the system too rigid and less adaptable to new situations.
    • (3) It can lead to excessive formalism and conservatism, addressable through progressive interpretation.
    • (4) Codification can generate new controversies.
    • (5) It may provoke interpretive disputes due to judicial hair-splitting tendencies.
    • (6) International law is still in a relatively early stage; only partial codification is feasible.
    • (7) Much of international law remains grounded in customary rules that are not yet fully settled.
  • It is noted that codification, once political and law-creating in the absence of a true international legislative body, requires states' agreement on content; the Code cannot be imposed without government concurrence.

Conclusion and perspective

  • A critical assessment suggests that the advantages of codification outweigh the disadvantages; codification can render law more certain, simple, intelligible, and accessible to all.
  • Many disadvantages can be mitigated through careful planning and ongoing, scientific revision to reflect changes in international conditions.
  • The UN Charter envisions a gradual advancement, particularly for less contentious relations, with greater potential in areas where mutual interest is stronger and collective security mechanisms function effectively.
  • Products of codification—especially when initially adopted by a limited number of governments—constitute a tangible starting point for broader adoption and gradual extension.
  • In the evolving field of public international law, codification and progressive development play a vital role in formulating specific instruments of lawmaking—bilateral or multilateral treaties—that regulate communications, health, conservation of resources, labor, social matters, marine resources, and space law.
  • The field requires ongoing evolution: as Judge Nagendra Singh observed, there is no universal legislative chamber in international law; codification must be substantially legislative in character, involving revisions that reflect changing needs and secure wider acceptance by sovereign states. The process should emphasize not only scientific determination but also responsive reform to meet new demands of a dynamic world society.