CO DI F I C AT I O N AND P RO G RE S S I VE DE V E L OP ME NT O F

I NT E RN AT I O N AL L AW

Tarun Jain1

T AB L E O F CO NT E NT S
I. Introduction
II. Origin of International Law
III. Codification of International Law
(a) Meaning of Codification
(b) International Law and Codification: Different Perspectives
(c) Stages of Codification
IV. ILC and Codification of International Law
V. Codification versus Development of International Law: An Introspect
VI. Conclusion

I. I n tr o d u c ti o n

Defined by Oppenheim2 as “a body of rules which are legally binding on states in their
intercourse with each other”, International Law as such has been subject to multifold
criticism on various diverse and terse grounds. On of these grounds has been that it
lacks sanction, as in terms of Austin, which every law emanating from a sovereign
inherently possesses. Nevertheless, despite being christened as a weak law,
International Law as grown by leaps and bounds and has acquired binding sanction
through jus cogens, erga omnis obligations and other sanctions being imposed by the
international community against the violators of international law. The present note
makes an attempt to trace the development of international law as such through the
ages with a special reference to the codification process through which most of the
principles of international law have seem to become of relative significance. Today the
1
For details, visit http://ssrn.com/author=660701
2 th
Oppenheim, International Law, 4, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, 9
edition, 1996)

Electronic copy available at: http://ssrn.com/abstract=1120849

codification and progressive development of international law is broadly accepted as
being an important task of states and the specific "legislative" process of the
contemporary international community.3

II. O r i g i n o f I n te r n a ti o n a l L aw

The modern International Law has its origins in the Europe of the sixteenth and
seventeenth century. The law created to govern the diplomatic, commercial, military and
other relations of the society of Christian states forming the Europe of that time provided
the basis for the present international law. International law was first extended beyond
Europe at the end of the eighteenth and at the beginning of the nineteenth centuries to
the states that succeeded the rebel European colonies of North and South America
respectively.4

III. Co d i fi c a ti o n o f I n te r n a ti o n a l L aw

(a) Meaning of Codification

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.5 The famous

3
The work of the International Law Commission, UN Sales No. E.88.V.1 (4th ed. 1988) as quoted by B.
Graefrath, The International Law Commission Tomorrow: Improving its Organization and methods of
work, 85 Am. J. Int'l L. 595 (1991).
4 th
D J Harris, Cases and Materials on International Law, 12, (Sweet & Maxwell: London, 6 Edition, 2004)
5
To take clue from Brownlie, “narrowly defined, codification involves the setting down, in a
comprehensive and orderly form, of rules of existing law and the approval of the resulting text by a law-
th
determining agency.” Ian Brownlie, Principles of Public International Law, 28, (Oxford, London, 6 edition,
2003)

Electronic copy available at: http://ssrn.com/abstract=1120849

Justinian Code, German Code, Manu Code etc. are quintessential illustrations to this
fact in municipal jurisdictions. However the situation was quiet different in International
Law. It was not because of the fact that International Law required some more than this
from what we generally understand by codification but because it was a difficult exercise
to consolidate these generally prevailing notions of international rules into a generally
acceptable code.

(b) International Law and Codification: Different Perspectives6

Having defined as to what is codification, it is important it specifically in terms of

International Law in order to expedite our understanding of the process of codification of
International Law. However it is not that a straight jacket formula exists for
understanding codification in the perspective of international law. In fact various Jurists
understand the meaning and scope of ‘codification of international law’ in different
perspectives: while some attribute a narrow significance to it, according to others
codification of international law is of wide horizon. Let us understand the same.

Giving a narrow meaning to the term ‘codification’, Sir H. Lauterpacht holds, “the
task of codifying international law, 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 State.”7 Thus one shall find that according to this
view, the ‘codification of international law’ only means giving a written form to the
hitherto unwritten rules/principles of international law. It does not involve

6
Here the issue can be contrasted from being discussed as what we have termed as the ‘codification’
process to what Schwarzenberger calls as the outcome of ‘legislative international institutions’, which
majorly work though the Conference Method, thereby acting as legislative institutions and thus evolving
international law. He cites the examples of the Hague Peace Conference of 1899 and 1907, the
Barcelona Conference on Navigable Waterways and Freedom of Transit (1921), the Warsaw Conference
on the Unification of the Law relating to Carriage by Air (1929) etc. as illustrations of this legislative
process which has resulted into the codification and development of international law. Georg
th
Schwarzenberger, A Manuel of International Law, 267, 380-85, (Universal, New Delhi, 5 edition, 2000)
7
H. Lauterpacht, Codification and Development of International Law, 49 AJIL 16 (1955) at 22.

3
 prospective thinking nor does it allow the invocation of any modification or
amending exercise to the existing rules.8

However adopting a wider outlook, wherein codification also involves the
modification of existing rules of international law, so as to keep up with the
changed times and also provide for the developing concepts, another
contradictory view exists to hold, “there is a school of thought which holds that
codification in the proper sense of the word can only mean writing down of the
already existing rules; though it usually has to eb conceded that in practice even
a strict codification in this sense may involve the making of a few minor changes
in the law… [However] to adopt too strict a definition of the process involved is
therefore to defeat the very ends for which the machinery is to be employed.”
“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 law unchanged, even though this may be true of some cases.
In other words, codification properly conceived is itself a method of the
progressive development of law.”9 Continuing this line of thought, it is also
opined, “the two processes – progressive development and codification, far from
being mutually exclusive, in fact merge.”10

8 th
See also Georg Schwarzenberger, A Manuel of International Law, 382, (Universal, New Delhi, 5
edition, 2000), who holds, “in the absence of international legislative organs in the strict sense, such
codification (referring to the work done by ILC) must needs be in the form of multilateral international
conventions. In substance, such a codification may be limited to a restatement of existing law or aim at its
improvement.” He maintains that despite a number of credentials, it has not been for the ‘codification’
process but it has been the common-law pattern which has led to the emergence and strengthening of
international law. He observes, “limited successes of the pattern of codification on the world scale must
not be allowed to obscure features of the Common-Law pattern which probably compare favorably with
the alternative technique of codification. Most branches of international law have, at least, been touched
upon by the World Court and international tribunals, and there are many fields of international law which
look different today from the time when international law was the exclusive preserve of chancelleries and
writers. … Especially if universal judicial institutions, such as the World Court, are available, the
cumulative effect of these advantageous conditions appear to weigh the balance in favour of the
Common-Law pattern as compared with that of codification.” Id. at 385.
9
R. Y. Zennings, The Progressive Development of International Law and its Codification, 24 BYBIL 301
(1947).
10
Manfred Laches, The Twenty- Fifth Anniversary of International Law and its Codification, 14 IJIL 1
(1974).

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Further, if one was to refer to Article 15 of the Statute of International Law
Commission11 it provides, the expression ‘progressive development of international law’
is used for convenience as meaning the preparation of draft conventions on subjects
which have not yet been regulated by international law or in regard to which the law yet
has not been sufficient the very ends for which the machinery is to be employed.
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.12
Perhaps, logically speaking as well, the narrower view juxtaposed with the objective of
international law does not hold any sense. If one were to limit the meaning of
codification of international law, as contrasted from codification in the municipal
perspective, international law would never grow. This is because the very purpose of
codification in our case is to provide a base for the further development of new rules or
advancement or amendment of the existing rules such the world order is better
regulated and international law also finds a sui generis basis. The purpose is to give
strength to the sanctions following violations of international law as well as to provide
better rules for an orderly conduct of international affairs. So if codification implies mere
enactment of the existing rules, international law will became stagnant and will lose its
vitality.
Giving a largely traditional view, however, Oppenhiem13 holds that codification in
respect to international law implies a two fold process.
(i) process of translating into statutes or conventions, customary law and rules
arising from judicial decisions,
(ii) process of securing, by means of a general convention, agreement among
states upon certain topics of international law.

11
For more on International Law Commission and its role in the codification of international law, see infra.
12 th
See S. K. Kapoor, International Law and Human Rights, 92, (Central Law Agency: Allahabad, 14
edition, 2002), who quotes R. Y. Zennings for this opinion.
13 th
Oppenheim, International Law, 97, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, 9
edition, 1996)

5
He holds, however, that in relation to international law the two aspects are in practice
inseparable and further, there is no clear borderline between codes and ordinary
multilateral conventions.14 Thus even Oppenheim does by far agrees with the traditional
or the narrow view, though the second part may well be broad be enough to include the
aspect of modifying the already existing concepts by securing agreement between the
states on such lines.15
To conclude this un-ending tussle between the role and approach of codification of
international law, the view of Justice Nagendra Singh seems more sound and logical.16
He 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. This must necessarily be so if the
legislative function has at all to be performed for the international community so
essential for the maintenance of the world order.” (emphasis supplied)

(c) Stages of Codification

The entire exercise of codification of international law can be viewed under different
stages. This distinction between stages has been made on the basis of the parent or
supporting organization under whose aegis the codification exercise was undertaken.17

14
Ibid
15
The Draft Articles on State Responsibility, as codified by the ILC, may well seem to be a quintessential
illustration to this regard.
16
Judge Nagendra Singh, Codification and Progressive Development of International Law: The Role of
International Court of Justice, 18 IJIL 2 (1978).
17
However this does not take away the credit of individual writers who have on their own made attempts
for the codification of international law. Some of these attempts are by, Alfons Von Domin – Petrushnveez
(Austrian) in 1861, Prof. Francis Liber of Columbia Law School in 1863, Bluntishii (Swish) in 1868, David
Dudley Field in 1872, Levi in 1887, Paspuale Fiore (Italy) in 1890, E. Duplexis in 1906, Jerome
Internescia in 1911 and also by Oppenhiem, Hall, Phillimmore, Hyde etc.

6
On this basis the codification exercise can be chronologically understood as below.
(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.18 Before him 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, and (b) Convention on the
Laws of Customs of War on Land) and then the Second Hague Convention of
1907, which resulted into thirteen conventions were one of the major codification
exercises undertaken at that time.
(iv) 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.”19
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 subjects20 for codification and further in 1928 reported two more
subjects21 for codification.

18 th
Oppenheim, International Law, 97, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, 9
edition, 1996)
19
Id. at 60
20
Namely,
(1) Nationality,
(2) Territorial Waters,
(3) State Responsibility for damage done in their territory to the persons or property of foreigners,
(4) Diplomatic immunities and privileges,
(5) Procedure of International Conference and Procedure for the conclusion and drafting of treaties,
(6) Exploitation of the products of the sea, and
(7) Piracy.
21
Namely,

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(v) Codification under the United Nations:22 Article 13(1)(a) of the UN Charter lays
down that the General Assembly shall initiate studies and make
recommendations for the purpose of ‘promoting international co-operation in the
political field’ and ‘encouraging the progressive development of international law
and its codification’. Thus it may be noted that the aim to codify international law
was not only existing but also found its place in the fundamental document
establishing the United Nations i.e. the UN Charter itself. Considering the
urgency of the situation and its importance, the General Assembly acted quickly
and on December 11th, 1946, it appointed a committee for the progressive
development of International Law and its codification.
Further, following this mandate of Article 13, the General Assembly established
the International Law Commission (ILC) in 1947.23 This ILC first met on April 11th,
1949.24 Owing to the enormity of the contribution of ILC towards the codification
and progressive development of international law, it is advisable to discuss its
contribution separately.

IV. I L C a n d Co d i fi c a ti o n o f I n te r n a ti o n a l L aw 25

(1) Law relating to functions and competence of Consuls, and

(2) The Competence of Courts regarding foreign states.
22
D J Harris notes that before the institutionalization of ILC, the major part of the international law was
still to be found in the uncollated practices of the states. (D J Harris, Cases and Materials on International
th
Law, 63, (Sweet & Maxwell, London, 6 edition, 2004).
23
Vide GA Res. 174 (II) (1947). The decision to establish ILC was adopted in pursuance of the
recommendation of a Committee composed of representative of governments, which sat in June 1947.
24
Article 1 of the Statute of the International Law Commission provides that the Commission shall have
for its object the promotion of the progressive development of international law and its codification.
Further, vide Article 17(1) of the Statute, the ILC also considers proposals and draft multilateral
conventions submitted by the members of the UN, the principal organs of the UN other than the
specialized agencies, or official bodies established by the inter-governmental agreement to encourage
the progressive development of International Law and its codification and transmitted to it for that purpose
by the Secretary General.
25
The Statute of ILC provides for 34 members (originally 15), (Article 2, para 1) each with a five year
term, who serve in their personal capacities rather than as representatives of governments (Article 10)
and also classifies the world into five major areas from which the members have to be selected. The
System of Representation is;
(a) Members from African States: 8
(b) Members from Asian States: 7

8
The establishment of ILC brought out a turning point in the ‘codification movement’ i.e.
the movement for the systematic presentation of international law in the form of written
rules representing a restatement of existing rules of international customary law or the
formulation of the new ones.26 Originally in 1949, the three subjects on the priority list of
ILC were, (a) Law of Treaties, (b) Arbitral Procedure, and (c) Law Relating to High
Seas. By 1971, the Commission had submitted final drafts/ reports on diverse issues.27
Besides working on these specific issues,28 ILC has been incumbent into publishing the
Year Book of International Law (YBIL) while also been instrumental in publishing the

(c) Members from East European States: 3

(d) Members from Latin American States: 6
(e) Members from West European States: 8
It is also to be noted that the members sit as individuals and not as representatives of Governments. (See
also Rosenstock (2002) 96 AJIL 792 at 794, who comments upon the independent working of these
members.)
26
Carl August Fleischhauer, The United Nations and the Progressive Development and Codification of
International Law, 25 IJIL 1 (1985).
27
Namely,
(1) Regime of the High Sea,
(2) Regime of Territorial Waters,
(3) Nationality (including statelessness),
(4) Law of Treaties,
(5) Diplomatic Intercourse and Immunities,
(6) Consular Intercourse and Immunities,
(7) Draft Declaration on the Rights and Duties of States,
(8) Formulation of the Nuremberg Principles,
(9) Draft Code of Offences against the Peace and Security of Mankind
(10) Question of Definition of Aggression
(11) Question of International Criminal Jurisdiction
(12) Question of Reservation of Multilateral Treaties,
(13) Extended Participation of General Multilateral treaties concluded under the auspices of the
League of Nations,
(14) Special Missions,
(15) Representation of States of International Organisations,
(16) Prevention and Punishment of Crimes against diplomatic Agents and other Internationally
Protected Persons,
(17) Most Favored Nation Clause,
(18) State Responsibility,
(19) Succession of States in Respect of Treaties,
(20) Succession of States in matters other than Treaties,
(21) Law of Non-Navigational User of International Water-courses
28
The most important function of the Commission is the drafting of articles and other documents on
various aspects of international law either upon request of the General Assembly, other U.N. organs, the
Member States, or on its own initiative. (Article 16 – 18)

9
United Nations Juridical Year Book (since 1963), UN Legislative Series and the Report
of the International Arbitral Awards.
It was during its 53rd session that ILC adopted in second reading, a complete set of 55
draft articles of State Responsibility, a task which took about four decades for the ILC to
accomplish, in 2001.29
The importance of the work of ILC can be summerised in the words of Lauterpacht30
who states, “the texts prepared by the Commission are, in terms of the rules about
sources of international law in Article 38(1)(c) as under the Statute of International Court
of Justice are atleast in the category of writings of the more qualified publicists.”

V. Co d i fi c a ti o n ve r s u s De ve l o p m e n t o f I n te r n a ti o n a l L aw : An
I n tr o s p e c t

The distinction between ‘codification’ and ‘development of international law’ has been
adopted both in the Charter of the United Nations and in the Statute of the International
Law Commission. In the Statute of ILC however, the phrase used is ‘progressive
development of international law’. This has been so used, as the Statute itself provides,
for ‘the formulation of the draft conventions on subjects which have not yet been
regulated by international law or in regard to which the law has not yet been sufficiently
developed in the practice of States.’ Thus a distinction itself is carved out as the
‘codification of international law’ is used as meaning ‘the more precise formulation and

Upon completion of its work on a topic, the ILC refers the final draft back to the General Assembly for it to
take action as deemed appropriate, normally including its recommendations as to what measures should
be adopted. [The Commission's options for recommendation to the General Assembly are:
(a) To take no action, the report having already been published;
(b) To take note of or adopt the report by resolution;
(c) To recommend the draft to Members with a view to the conclusion of a convention;
(d) To convoke a conference to conclude a convention. ]
(Article 23 para 1)
29
The State of State Responsibility, 96 Am. Soc'y Int'l L. Proc. 168 (2002).
30
“Survey of International Law in Relation to the Work of Codification of the International Law
Commission” in E. Lauterpacht, Ed., International Law, Being the Collected Paper of Hersch Lauterpacht
(1970) Vol. 1 at p. 445, cited by D J Harris, Cases and Materials on International Law, 64, (Sweet &
th
Maxwell, London, 6 edition, 2004)

10
systematization of international law in fields where there already has been extensive
State practice, precedent and doctrine.’31
Thus one may have the cause to argue that the two expressions do not mean the same
and may not be used interchangeable, as already noted earlier. However, one cannot
view the two terms in isolation. The same have to be read in the light of state practice
and the international politics. Thus one may find that “the theoretical value of the
distinction is limited and its practical application insignificant. … In fact, the usefulness
and justification of the entire process of codification, in its wider sense, must, as a rule,
depend upon the combination, in relation to the same object, of the processes of
restatement of existing principles with the formulation of new principles.”32 Thus the real
debate over the extent and purpose of codification does not find a logical or pragmatic
basis and thus must be abandoned. In fact what remains is the factum of progressive
development of international law which has in fact been brought about vigorously by the
efforts of the ILC.

VI. Co n c l u s i o n

It is true that the absence of codified rules has not seriously impeded the work of the
International Court of Justice or of the other tribunals, and that, on the contrary, their
work has shown that International Law may be developed indirectly and given a degree
of certainty through decisions of international tribunals. But there is no doubt that the
codification of suitable proportions of international law may add both to its clarity and
authority and, to a smaller extent, to the willingness of states to submit disputes to
obligatory judicial or arbitral settlement.33

Thus one may conclude that codification of international law has indeed contributed to
the development and in fact progressive development of international law. The same is

31
Articles 15, 17 of the Statute of ILC
32
Oppenheim, International Law, 110-111, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi,
th
9 edition, 1996)
33
Id. at 113

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factually verifiable and in fact has been acknowledged by jurists as well. The purpose of
codification may have been confused as having a progressive trend or merely codifying
state practice but in reality the codification exercise has turned out to be of worthwhile
assistance to the development of international law as we now have well defined rules of
international law, obligations of states etc. and before pressing any violation of
international obligations judicial decisions may not be required to substantiate the point
owing to the presence of Conventions and Treaties. The Universal Declaration of
Human Rights in 1948 may, then, just have been a codification exercise, writing down
the existing human right jurisprudential thought but as of today it has been the grund
norm of international human right jurisprudence. Thus the importance of the codification
process may be well understood.

In short codification has been instrumental in giving a platform for the progressive
development of international law and has come to the rescue of the Samaritans who
envisage a just international order, with a defined code of conduct between States and
thus humanity shall prevail in the world at large and also the ILC continues to play an
important rule in the codification and progressive development of international law, as
evidenced most recently by the adoption of the Draft Articles on the Responsibility of
States for Internationally Wrongful Acts and also the adoption of the Draft Statute of
International Criminal Court at Rome in 1998.

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 RE F E RE NCE S
I. Articles
(1.) B. Graefrath, The International Law Commission Tomorrow: Improving its Organization and
methods of work, 85 Am. J. Int'l L. 595 (1991).
(2.) Gerald T. McLaughlin, The Codification Of International Commercial Law: Toward A New Law,
15 Brook. J. Int'l L. 3 (1989).
(3.) Hugo Caminos & Michael R. Molitor, Progressive Development of International Law and the
Package Deal, 79 Am. J. Int'l L. 871 (1985).
(4.) Luis Barrionuevo Arévalo, The work of the International Law Commission in the field of
International Environmental Law, 32 B.C. Envtl. Aff. L. Rev. 493 (2005).
(5.) Stephen Mccaffrey, Is Codification in Decline?, 20 Hastings Int'l & Comp. L. Rev. 639 (1997).
(6.) Thomas M. Franck & Mohamed El Baradei, The Codification and Progressive Development of
International Law: A UNITAR Study of the Role and use of the International Law Commission, 76
Am. J. Int'l L. 630 (1982).
II. Books
th
(1.) D J Harris, Cases and Materials on International Law, (Sweet & Maxwell, London, 6 edition,
2004)
th
(2.) Georg Schwarzenberger, A Manuel of International Law, (Universal, New Delhi, 5 edition, 2000)
th
(3.) Ian Brownlie, Principles of Public International Law, 28, (Oxford, London, 6 edition, 2003)
th
(4.) Oppenheim, International Law, (Robert Jennings & Arthur Watts (Ed.) Universal, New Delhi, 9
edition, 1996)
th
(5.) S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 14 edition,
2004)
III. Websites
(1.) http://www.aussenministerium.at/view.php3?f_id=5700&LNG=en
(2.) http://www.bartleby.com/65/in/intllaw.html
(3.) http://www.ejil.org/journal/Vol4/No4/art4.pdf
(4.) http://www.encyclopedia.com/html/section/intllaw_EvolutionofInternationalLaw.asp
(5.) http://www.icj-cij.org/icjwww/igeneralinformation/ibbook/Bbookchapter7.HTM
(6.) http://www.jus.uio.no/lm/un.sg.report.itl.development.1966/doc.html
(7.) http://www.scienceblog.com/community/older/archives/L/1997/B/un971523.html
(8.) http://www.un.org/law/1990-1999/
(9.) http://www.un.org/law/ilc/index.htm
(10.) http://www.un.org/law/lindex.htm
(11.) http://www.wagingpeace.org/menu/issues/international-law/start/fact-sheet_international-law-
security.htm
(12.) http://www.weblaw.edu.au/weblaw/display_page.phtml?WebLaw_Page=International+Law

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