The Codification of International Law

THE very wise and practical statesmen who in 1787 assembled in Philadelphia to frame a charter of government for the thirteen states, which should "form a more perfect union" than the existing Confederation, in the enumeration of legislative powers which they proposed to confer upon the Congress of the United States, included the following: "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." The framers of the Constitution recognized that there was a law of nations and they empowered the new national government they were creating to define and punish offenses against that law. Yet today we are being told by certain American politicians that until international law is reduced to the confines of a written code the United States cannot safely give adhesion to the Permanent Court of International Justice, established for the enforcement of that law in international disputes, and which has been functioning at The Hague during the last four years.

What, then, is this law of nations, the existence of which Washington, Hamilton, Madison, Franklin, Wilson, Rutledge, Pinckney, Morris, and their associates, recognized in framing the Constitution? It was also recognized in the Articles of Confederation, which empowered the Congress to appoint courts "for the trial of piracies and felonies committed on the high seas." Under the authority of those Articles, the Congress of the Confederation had enacted a law defining piracy and providing the death penalty for the offense. By the law of nations, Judge Story wrote, piracy was robbery at sea, while by the common law it was an offense against the universal law of nations, and a pirate was considered an enemy of the human race. When the clause came before the Constitutional Convention in the form above quoted, Mr. Gouverneur Morris moved to strike out the words "offenses against the law of nations," so as to let these be definable as well as punishable, by virtue of the preceding member of the sentence. To this Mr. Wilson objected, expressing the hope that the alteration would not be made. To pretend to define the law of nations, which depended on the authority of all the civilized nations of the world, would, he said, have a look of arrogance that would make us ridiculous. Mr. Morris's proposal failed and the clause remained in its present form. Mr. Madison advocated its adoption, because it was a great improvement on the Articles of Confederation. These articles, he said in the 42nd paper of The Federalist, contained no provision for the case of offenses against the law of nations, and consequently left it in the power of any indiscreet member to embroil the Confederacy with foreign nations. A similar view was expressed by Mr. Randolph. When, in the exercise of this power, the Congress proceeded to define and punish the offense of piracy, it turned to the law of nations for the definition of the offense, -- "robbery on the high seas," -- and in substance embodied it in the first Crimes Act enacted April 30, 1790. Later legislation, now embodied in the Federal Penal Code, declares that "whoever on the high seas commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."

The Supreme Court of the nation, from a very early date in its existence, recognized the law of nations as a part of our own law, binding upon our government and our people and enforceable by the Courts of the United States. Like the common law, the law of nations grew out of custom, the custom of civilized nations, long continued, acquiesced in, reasonable, certain, compulsory and consistent -- which, as Sir William Blackstone wrote, are necessary to make a particular custom binding. As early as 1796, the Supreme Court of the United States, speaking by Mr. Justice Chase,^[i] said: "The law of nations may be considered of three kinds, to wit: general, conventional or customary. The first is universal, or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal, and only binds those nations that have assented to it. The third is founded on tacit consent; and is only obligatory on those nations who have adopted it."

There seems no doubt that throughout all recorded history there has been a more or less imperfect recognition of certain rules of intercourse among states claiming to be civilized, a disregard of which by any one would afford an excuse for acts of reprisal by another. These rules have varied with the conditions of the times, and whatever force they had arose out of the recognition by different Powers of the reciprocal advantage resulting from their observance. Such, for example, is the rule exempting fishing vessels, their crews and cargo, from capture as prize of war, which, in 1898, the Supreme Court traced back to its origin in the fifteenth century and recognized as having become, by long continued custom, a principle of international law, which the Courts of the United States would enforce.

A world of lawless nations presents a no less horrid spectacle than a nation of lawless individuals. Common recognition of the necessity of restraint upon individuals, as essential to true liberty and the welfare of all, has been followed, slowly, to be sure, but inevitably, by a recognition of the need of restraint upon the action of states in the interest of all. Never was the necessity of a law of nations more clearly demonstrated than during the awful miseries inflicted upon mankind by the Thirty Years' War, and when that welter of human cruelty, misery and degradation was at its height, in the year 1625, Hugo Grotius gave to the world his treatise on the Laws of War and Peace, which marks the beginning of international law as it is conceived of today. Grotius sought a basis for the law of nations in what he called natural law, accepted as such by all civilized nations, and he endeavored to demonstrate the advantage to be realized by the observance of this natural law. Later writers have abandoned this theory and have sought to find a philosophical basis for the existence of the law of nations in different theories. Indeed, some respectable writers go so far as to maintain that there can be no such thing as international law, because law must have the sanction of the police power of a state to support it. More practical modern thought, however, recognizes the existence of a system of law binding upon civilized states, based upon usage, and looks no further for its source than to common recognition of the mutual advantage to each from its observance by all, or the resulting damage to all from its disregard by any. The sanction for such law it finds in the increasingly mobilized public opinion of the civilized world.

Since the time of Grotius, nations more and more have recognized the advantage of the peaceful settlement of international disputes through conference, conciliation, arbitration or judicial process. Principles of international law have been ascertained and declared by Courts of the United States, Great Britain and the British Dominions, as well as by those of other civilized nations, and international treaties and agreements have defined, extended and applied rules which arose out of usage and custom. Decisions of Arbitral Tribunals have aided in reducing these rules to more certain form, and text writers of recognized learning and ability gradually have brought the body of international law into logical arrangement and somewhat authoritative structure. The publication in 1896 by the Honorable John Bassett Moore of his "Digest of International Law," in seven large octavo volumes, averaging 1000 pages each, was the most valuable contribution made since the foundation of our government towards the formulation of a systematic authoritative statement of the principles of the law of nations, recognized in the diplomatic intercourse of the United States and the decisions of American Courts. This was supplemented in 1898 by Judge Moore's "History and Digest of International Arbitrations to which the United States has been a Party," in six large octavo volumes. These two works together constitute a monumental contribution to the history and application of international law in regard to questions, negotiations and controversies affecting the United States. If similar digests of the experiences of the Governments of Great Britain, France, Germany, Italy and the Scandinavian countries, as well as of Holland, Belgium and Spain, could be prepared, the materials would be complete for the preparation of a Corpus Juris Internationalis. The Hague Conventions of 1899 and 1907, gave an impetus to the movement towards the written formulation of rules of international law, and the Peace Treaties of 1919, and the Agreements reached at the Washington Naval Limitation Conference in 1922, as well as the Treaties and agreements made between various nations, registered with the Secretariat of the League of Nations since 1920, have established a large body of conventional rules, of more or less general application, all of which tend towards the written formulation of a body of international law.

In general, boards or commissions of international arbitration have been left free to apply such principles as they should choose in the determination of questions submitted to them. Composed, as such bodies generally are, of representatives of the disputant states, with one or more impartial members, their decisions often have been political rather than judicial, the product of expediency rather than of law. A recognition of this fact led the Government of the United States, in 1907, to urge upon the second Hague Conference the establishment of a Permanent Court of International Justice, composed of judges appointed for fixed terms, made independent of political interference, and charged with the determination of controversies between nations by the application of the principles and rules of international law.

The difficulty of finding a method of selecting judges for such a Court, which would satisfy both small and great nations alike, prevented the Conference from carrying out this recommendation, and it was not until the organization of the League of Nations provided adequate machinery for this purpose that the American recommendation of 1907 became possible of attainment. The Permanent Court of International Justice, resting for its existence upon a protocol or treaty, open not only to the members of the League of Nations, but as well to the United States and all other nations named in the Annex to the Covenant, is empowered to decide all controversies between nations voluntarily submitted to it for decision, and also is given compulsory jurisdiction over those states which, availing themselves of a provision in the Statute, shall expressly elect to accept such jurisdiction.

The Statute provides that the Court in its decisions shall apply: 1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; 2. International custom, as evidence of a general practice accepted as law; 3. The general principles of law recognized by civilized nations; 4. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. In other words, the Court is to look for the law which it is to apply to a given controversy, first, in any international agreement expressly recognized by the contestants, and, secondly, in general principles or practices recognized as law by civilized nations, which may be found in (1) international custom, or (2) judicial decisions of courts of different nations, or (3) the writings of qualified publicists.

These are the same sources which always have been resorted to by the Supreme Court of the United States in ascertaining the rules of international law which it has applied when controversies involving the application of such law have come before it.

Chief Justice Marshall spoke for the Supreme Court in 1815:

"The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded on a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this."^[ii]

In later cases^[iii] the Court has added that in ascertaining and declaring what international law is, in any given case, the Court must obtain such aid as it can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations.

A similar method is pursued by the courts of all English-speaking countries, in finding the rules of the common law, by which a large proportion of all cases arising in those countries are governed. The contention that our government cannot give adherence to this International Court, the realization of American thought and advocacy during the last quarter of a century, until international law is reduced to the form of a written code, ignores all experience in the judicial history of England and America, and disregards the almost uniform practice of the United States Government in its arbitral procedure, as well as the declarations of its highest judicial authority.

Nevertheless, efforts to formulate principles of international law and to secure general agreement upon them by civilized states have been made and are being continued at the present time. A century ago, the great English law reformer, Jeremy Bentham, began to agitate for the codification of international law. Sixty or seventy years after Bentham wrote, David Dudley Field published a code of international law, the inadequacy of which for present uses furnishes suggestions of the difficulties of anticipating the future relations of nations, as well as of making a code from the standpoint of one country alone, to say nothing of the task of reconciling differences of language, and of varying conceptions of legal principles in a code designed to govern all or at least a number of civilized nations. Two great learned societies were formed in Europe in 1873 for the express purpose of codifying international law. They have included in their membership some of the most eminent jurists of Europe and America. They have produced valuable contributions to the science of international law, -- but no general code. The American Society of International Law for eleven years maintained a Committee, whose membership included some of the most highly qualified students of international law, which was charged with the duty of preparing a code of international law. They failed to produce it. The Assembly and Council of the League of Nations recently determined to take up the matter, tentatively and cautiously. They created a committee of lawyers, representing all the different systems of jurisprudence of the civilized world, which they charged with the duty of preparing a provisional list of the subjects of international law, the solution of which by means of international agreement would appear to be the most desirable and presently realizable. After communicating such list to the various governments and studying their replies, the Committee was instructed to report to the Council of the League upon the questions which were regarded as sufficiently ripe for agreement and the procedure which might be followed in preparation for eventual conferences for their solution.

It is apparent that the Assembly of the League contemplated only a tentative approach to the great problem of codification. The Committee is to select the topics of international law which in its opinion it is most desirable to clarify and make certain of international agreement, and upon which there is a present probability the nations may agree. The form of the resolution of the Assembly emphasizes the need of agreement among the nations to fix and clarify these rules of international law. A commission of lawyers appointed to codify the laws of a single American state or of a single nation, has a task, difficult enough to be sure, but easy in comparison with that of a similar body charged with the duty of codifying all, or even a part of the law of nations. When the commission of a state or of a single nation has finished its work, the legislature enacts it into law, sometimes with modifications, it is true, but in general substantially as reported. The courts thereafter wrestle with questions of construction, and, through judicial interpretation, in the course of years mould and clarify the work of the codifiers. The fiat of the legislature imposes the code upon the people as law. But the framers of a proposed agreement between nations establishing principles of international law, when they have finished their task of formulation, must submit it to the foreign offices of every civilized nation, where it will be studied in the light of the jurisprudence, the policies, the experience and the prejudices of each nation. Nor are even the preliminary processes of agreement upon topics, or the formulation of rules applicable to each topic, of easy accomplishment. Mr. Root has testified that but for the long years of work of the scholars who composed the membership of the Institut de Droit International, the Hague Conferences could not have produced the various treaties which they agreed upon and reported to the various governments represented. The conferences adopted almost literally the drafts which the Institut de Droit International had prepared with matured deliberation during a period of a quarter of a century. But those drafts, and the Hague conventions, covered but a small portion of the whole body of international law.

The popular notion that a Code of International Law may be easily prepared, covering every vital topic of the law of nations, arranged for ready reference, and by means of which controversies between nations may be almost automatically decided, is plausible, but utterly impracticable and fallacious. It is doubtful whether the codes of substantive law adopted by several of our American states have resulted in lessening litigation, or in giving the body of their citizens any more exact knowledge of their laws, than obtains in states whose laws have not been codified. As a matter of fact, the English language, by the very fact of its richness, drawn from so many and varied lingual sources, does not lend itself to such exact expression as do the Latin languages. Few statutes in the English tongue are not susceptible of more than one meaning. Hence, broadly speaking, no lawyer ventures to express an absolute opinion as to the meaning and application of a new statute until it has been construed by the courts. Moreover, the English law, including our own, has grown, modified and adapted itself, through judicial process rather than by legislative application, to the varying needs of a living, changing and expanding civilization; while the law of other lands is more static, more logical, perhaps more exact, but far less adaptable to changing conditions than ours.

An effort to reduce our American common law to written form, not for the purpose of enactment into statutes, but in order to present in accurate, systematic, orderly statement the existing law on various topics, as it is established by the decisions of the courts of last resort of the various States of the Union, recently was undertaken and is now being prosecuted by the American Law Institute, organized in Washington, D. C., in February, 1923, under the highest professional auspices, and handsomely endowed by the Carnegie Corporation. For nearly three years past it has engaged the continuous services of the most eminent legal scholars of America, aided by select bodies of able advisers, in the preparation of statements of portions of the law of Contracts, of Torts, Conflict of Laws, Agency, and Business Associations. With the utmost diligence these learned men have not yet produced a finished product for the final approval of the Institute. It is estimated that not less than ten years' time will be necessary to the completion of the task of restating any considerable portion of the unwritten or common law of America by this organization of learned and scholarly men. How much more difficult will be the task of the framers of a code of international law which shall meet the approval of the different civilized nations, may be guessed from this experience.

The initial steps of selecting the subjects which it is desirable and presently realizable to embody in international agreements involve a number of important considerations.

At the threshold of the discussion, lies the division of the subject into the international laws of peace and of war. It was the recognition of a crying necessity of rules for the government of nations in the conduct of war, for the preservation of humanity and private property from needless harm and destruction, that led Grotius to write his famous book. It was the disregard of the international laws of war, in the great contest of 1914-1918, that led the jurists who framed the Protocol and Statute of the Permanent Court of International Justice, in 1920, to recommend the creation of a commission to examine the state of international law as affected by the World War, to formulate and agree upon the amendments and additions, if any, to the rules of international law shown to be necessary or useful, as well as to consider what subjects are not now adequately regulated by international law, but as to which the interests of international justice require that rules of law shall be declared and accepted.

A first step towards the adoption of new rules of the international law of war was taken at the Washington Naval Limitations Conference, in 1921-1922, in the agreements formulated and submitted to the various governments for ratification, declaring submarine warfare as conducted by Germany during the World War to be piracy under the law of nations, and punishable as such, and regulating and restricting the use of poisonous gases in war. The law of neutrality cannot be rewritten until the fate of the Locarno treaties is settled. The law of contraband must be reconsidered and agreed upon when the state of the world has become more settled and the passions aroused by the great contest and the trying period of readjustment shall have passed. It would seem highly inexpedient to attempt at this moment to write the international laws of war with any reasonable expectation of acceptance by the Great Powers. This was the conclusion reached by the Committee upon the Progressive Codification of International Law, at Geneva, in April last.

Turning then to the next great subdivision of the subject, the public international law of peace, there must first be made a survey of the experience of nations, to ascertain what subjects have been or now are of frequent use or application in their relations with other nations, with respect to which there would seem to be some generally accepted rule or principle. If there appear to be disputes concerning principles frequently invoked, in international relations, the reasons for these differences must be sought, and consideration given to methods of reconciling the various views. The relative importance of the subjects also must be taken into account. When a subject has been selected, the question of different conceptions of its legal status by different countries and in various systems of law must next be approached. So simple a word as domicil, which enters into many international relations, expresses very different conceptions in the laws of different countries.

Again, continental European countries in general exercise jurisdiction over their own subjects for offenses against their own laws wherever committed. English and American jurisdiction extends only to the punishment of crimes committed within the national domain. Hence, continental European nations refuse to send back their own nationals for trial and punishment to a country where they may have committed a crime against its laws, but will themselves try the offender within their own jurisdiction and punish him for acts committed in a foreign land, which would have been criminal if done at home. To reconcile views differing such as these and to express rules of law in language which will have the same significance in English, French, German, Italian and Spanish -- not to speak of other tongues -- will be the task of the framers of a code of international law, and if American adhesion to the Permanent Court of International Justice were to wait upon the completion of such a task, the vision of a world governed by rules of law and orderly judicial procedure would soon fade from the sight of man.

Certainty in the law is desirable. The effort to clarify and state the law of nations in a form which may be agreed upon by all and which will facilitate the work of the Court of International Justice, must be carried on with the aid of the most highly qualified scholars in the world. But the public should not be suffered to think that the task of codification is a light one, easy of accomplishment, or possible of realization within a short time. Under the most favorable circumstances, it will be years before such a task can be completed. Differences in the legal conceptions of different races must be recognized and where possible reconciled. The obstacle of speech must be overcome. Provision must be made for the varying policies of different nations. Even matters of detail become stumbling blocks of serious moment, when language, tradition and national prejudice are involved. Meantime, the Permanent Court of International Justice, by its decisions, will be helping to make the law more certain and through judicial expression more appropriate for inclusion in convention. With the hearty cooperation of our government in the support of that Court, -- a cooperation which all signs indicate will be authorized by the Senate at its next session, -- an impetus will be given to the judicial determination of controversies between nations, and the task of making more definite the law of nations will be greatly advanced by the decisions of the Court, as well as by the continued labors of commissions of scholars working under the auspices of the nations of the old and the new world.

But the task is not easy and the road will be long. It must be travelled by stages. Systematic statements agreed upon by scholars will mark the first étape. Agreements by governments lie further along. Qui va piano va sano, qui va sano va lontano.

^[i] Ware v. Hylton, 3 Dallas 199, 227.

^[ii] 30 Hhds. of Sugar v. Boyle, 9 Cr. 191, 198.

^[iii] Hilton v. Guyot, 159 U. S. 113, 163; The Paquete Habana, 175 U. S. 677, 700.