Abstract
Shortly after the Hague Codification Conference of 1930, the late Professor Brierly observed that the ideal of codification is that law should be embodied in a systematic written form. He observed further:
It is an ideal never completely realizable, because law that is living contains an element of growth and cannot be finally or exhaustively imprisoned in a series of propositions however detailed and numerous.1
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References
J. L. Brierly, “The Future of Codification,” 12 British Yearbook of International Law (1931), pp. 1–12. With respect to the law of territorial waters, the late Professor John Basset Moore had some not very encouraging remarks concerning the prospect of codification: “Concerning territorial waters, the best that could be done was to incorporate various points of view in a report. On the strength of an early and long familiarity with this subject, as a student, as an administrator and as a participant in the interpretation and making of treaties, I do not hesitate to say that the subject of territorial waters is mong those that are least susceptible of codification. The physical conditions affecting the questions are of almost infinite variety.” 50 Harvard Law Review (1937), pp. 395, 403, cited by Marjorie M. White-man, “The Territorial Sea,” 49 Proceedings of the American Society of International Law (1956), pp. 116–124.
Digest of International Law (1940), vol. I, p. 44; Sir Hersch Lauterpacht expands upon this short statement in the following fashion:
Codification has at least two distinct meanings: (1) The process of translating into statutes or conventions customary law and the rules arising from the decisions of tribunals with little or no alteration of the law, and (2) the process of securing, by means of general conventions, agreement among the states upon certain topics of International Law, those conventions based upon existing law, both customary and conventional, but modified so as to reconcile conflicting views and render agreement possible. Oppenheim’s International Law, vol. I, 8th Ed., p. 57n.
Alberic Rolin, Les Origines de VInstitut de Droit International (1923).
Extent of the Marginal Sea, p. 107.
XIII Annuaire de l’Institut de droit international (1894–95), p. 329.
The International Law Association is an organization of much wider membership than the Institute, and it is open to individuals who are not specialists. Founded in 1873, its former name was: The Association for the Reform and Codification of the Law of Nations.
The International Law Association, Report of the Seventeenth Conference held at Brussels (1895), p. 102. In subsequent years, the Association has concerned itself with bays or with territorial waters in general: A. H. Charteris, “Territorial Jurisdiction in Wide Bays,” Report of the Twenty-Third Conference held at Berlin (1906), p. 103; Dr. Deszo Dorday, “Notes upon the Question of the Delimitation of Territorial Waters,” Report of the Twenty-Fifth Conference held at Budapest (1908), p. 547; Draft Rules submitted by Professor Alejandro Alvarez, Report of the Thirty-Third Conference held at Stockholm (1924), p. 267. (In this draft, Professor Alvarez recommended a 12-mile closing line for bays). Amended Draft Rules, Report of the Thirty-Fourth Conference of the International Law Association held at Vienna (1926), p. 387. (In this draft a 10-mile closing line is recommended.
At one time, the Naval War College, located at Newport, Rhode Island undertook rather extensive studies in those aspects of International Law that impinge upon the practice of the Naval Officers’ profession. The fruits of these studies were embodied in a series of publications, called ‘blue books’ which, starting in 1901, were issued annually. The primary reason for these publications was to keep responsible operating naval officers informed of solutions to problems which might very possibly confront them. As naval warfare has become increasingly complex, the War College has had to reduce the time and scope of its International Law studies in deference to other urgent requirements. The ‘Blue Book’ series has been continued. RADM Thomas H. Robbins, Jr., USN, “The Study of International Law at the Naval War College,” 50 American Journal of International Law (1956), pp. 659–663. The reference for the instant study is Naval War College International Law Topics and Discussions, 1913, pp. n-53. The 1960 Naval War College Blue Book, being written by Professor Carl W. Franklin of the University of Southern California, is concerned with the 1958 Geneva Conference on the Law of the Sea.
The “codification” undertaken by the War College has been referred to with some frequency by publicists. For that reason it is included in this book. It is to be emphasized, however, that although the work was done in a U.S. Government institution, this codification was definitely in the “unofficial” category.
The preface to NWC 1913 indicated that the notes, of which this general conclusion is a part, were drawn up by Professor George Grafton Wilson of Harvard University, long-time Associate in International Law at the Naval War College.
American Journal of International Law (April 1929), Special Supplement, p. 368.
Ibid., p. 370.
Ibid., p. 373; Report of Thirty-Fourth Conference of International Law Association (1926), p. 101.
American Journal of International Law (April 1929), Special Supplement, p. 376; 25 Revue de Droit International et Diplomatie (Tokyo), July 1926.
American Journal of International Law (April 1929), Special Supplement.
Professor Jesse M. Reeves wrote that this Resolution resulted from the position taken by M. Politis, rapporteur of the first assembly committee on codification. Sub-paragraph (d) of the Resolution reads:
Rule of the Spirit of the Codification. Codification of international law can be imagined in several forms. It might be a mere registration of the law in force. It might be something more if, instead of merely recording the rules already in existence, an attempt were made to adapt them to practical needs. Lastly, it might be an entirely original work designed to make good the present deficiencies in the law or to repalce the old rules by new. Although it is very difficult to lay down strictly beforehand in what spirit the work of the First Codification Conference should be conducted, it can be stated that while, in order to lead to useful results, the conference must refrain from making too many innovations, it cannot limit itself to the mere registration of the existing law. It must, as far as possible, adapt the rules to contemporary conditions of international life. It is in order to avoid any misunderstanding on this matter that the states which are to take part in the conference should be apprised of the spirit in which the work of codification is to be undertaken. Jesse S. Reeves. “The Hague Conference on the Codification of International Law,” 24 American Journal of International Law (1930), p. 55; see also, L. of N. V. Legal. 1927. V. 28 (C. 548, M. 196, 1927, V), p. 48.
Page 197, above.
Page 200, above.
That there were some articulate persons not altogether smitten by the then seemingly great confidence in the purely legalistic approach is evident in the article by Richard W. Hale, “Territorial Waters as a Test of Codification,” 24 American Journal of International Law (1930), pp. 65–8, in which he complains against the attempt at codification expressed in spatial rather than in causal terms.
Fed. 426, 428; see p. 4, above.
Besides the League of Nations documents relating to the Conference, discussions of the procedures before and during the Conference are to be found, among others, in: Antonio Sanchez de Bustamente y Sirven, The Territorial Sea (1930), at pp. 63–77; Gilbert Gidel, Le Droit International public de la Mer (1934), Tome III, at various pages; J. S. Reeves, “Hague Conference on Codification of International Law,” 24 American Journal of International Law (1930) pp. 52–57; Manley O. Hudson, “First Conference for Codification of International Law,” Ibid., pp. 447–466; Jesse S. Reeves, “Codification of the Law of Territorial Waters,” Ibid., pp. 486–499; S. Whittemore Boggs, “Delimitation of the Territorial Sea,” Ibid., pp. 541–555; Hunter Miller, “The Hague Codification Conference,” Ibid., pp. 674–693.
American Journal of International Law (1929), Special Supplmeent, p. 1.
There was appointed a sub-committee on territorial waters: Dr. Walther Schücking (Germany), Dr. Barbosa de Magalbaes, (Portugal) and Mr. George Wickersham (U.S.A.). Bustamente, Territorial Sea, p. 63.
The original draft, called a Project of Agreement, provided for a rather interesting innovation called an International Waters Office and Register which was to be an administrative registry for all the then present and future claims to sovereignty over sea areas. The original draft article on bays provided for a 12-mile closing line, and further provided that the article on the Waters Office shall apply to all present historic bay claims, and, further, that no such rights could be acquired in the future. After debates in the Subcommittee, the Waters Office project was abandoned, and the article on bays was changed to read as it is quoted here. Bustamente, Territorial Sea, pp. 64–6.
American Journal of International Law (1929), Special Supplement, p. 2. The Counci appointed to this committee: M. Jules Basdevant (France), Sen. Carlos Castro Ruiz (Colombia), Mr. J. P. A. Francois (Netherlands), Mr. Cecil Hurst (Great Britain), Sig. Massimo Pilatti (Italy). Bustamente, Territorial Sea, p. 70.
Leaugue of Nations Document C. 44.M.21.1928.V.
For critical views of the preparation of the Conference, see: Mamley O. Hudson, “The First Conference for the Codification of International Law,” 24 American Journal of International Law (1930), pp. 447–466; Hunter Miller, “The Hague Codification Conference,” Ibid., pp. 674–693; and James L. Brierly, “The Future of Codification,” 12 British Year Book of International Law (1931), pp. 1–12. Professor Hudson wrote that preparation should have been carried one step farther by submitting to the Governments for comment the bases of discussion, notwithstanding the previous responses to the questionnaire. While such a step might have done no harm and might hace crystalized positions further, it is doubtful whether the additional step would really have altered materially the discussion at the Conference or its outcome.
League of Nations, Conference for the Codification of International Law, Bases of Discussion, vol. II, Territorial Waters, 1929.
CAPT Christopher B. V. Meyer RNorN, The Extent of Jurisdiction in Territorial Waters (1927).
League of Nations Document C. 351(b) M.145(b) 1930.V. of August 1930. territorial waters. If the opening of the bay exceeds ten miles, this imaginary
League of Nations Document C.351(b).M.145(b) 1930.V., pp. 197, 219. These proposale are described in: S. Whittemore Boggs, “Delimitation of the Territorial Sea,” 24 American Journal of International Law (1930), pp. 546–7; Gilbert Gidel, Le Droit international public de la Mer (1934), Tome III, pp. 583–593, as well asin other articles. The American proposal was presented at the 1930 Conference by Mr. Boggs, Geographer of the U.S. State Department and member of the United States Delegation. According to a letter of 8 December 1958 from RADM Karo, Director U.S. Coast and Geodetic Survey, to this author, the proposed American system had its origin with a former Director of the U.S. Coast and Geodetic Survey, RADM R. S. Patton, USC&GS.
League of Nations Document C.351(b).M.145(b) 1930.V., p. 186.
Boggs, op. cit., p. 550.
Gidel, op. cit., p. 584.
League Document C.351(b).M.145(b) 1930.V., p. 188; we should perhaps as a matter of foot-noted record, note other methods. One is a publicists’ proposal and the other is a provision of a bilateral agreement.
Munch in his book, Die technischen Fragen des Küstenmeers (1934), at pages 97–100, suggests a method whereby the relationship between the perimeter of the concavity behind the closing line and the length of the closing line is examined. There would exist a bay when the length of the perimeter is equal to or greater than twice the length of the closing line. In the fisheries treaty between Russia and Japan dated 28 July 1907, the provisions of the treaty were agreed as not having application in bays whose depth was three times greater (or more) than their breadth. I Martens Recueil, 3rd Series, p. 861; II American Journal of International Law (1908), p. 274.
Boggs, “Delimitation,” p. 543.
League of Nations Document C.35i(b).M.i45(b), p. no.
Boggs, “Delimitation,” p. 553.
A. L. Shalowitz, U.S. Coast and Geodetic Survey, “The Concept of a bay as Inland Waters,” XIII Surveying and Mapping (October-December 1953), pp. 432–440.
Ibid., p. 433. Lest one conclude that the semi-circular rule was entirely an American invention, Mr. Shalowitz quotes from a letter sent to RADM Patton by the U.S. Delegation advising this principle had been independently arrived at by the British Delegation.
S. Whittemore Boggs, “Delimitation of the Territorial Sea,” 24 American Journal of International Law (1930), p. 547.
League of Nations Publication V. Legal. V. 14., p. 132.
Ibid.
For a brief discussion of the genesis of this article, see Yuan-li Liang, “The General Assembly and the Progressive Development and Codification of International Law,” 42 American Journal of International Law (1948), at pages 66–68.
UN Document A/64/Add. 1, P- 187.
UN Document A/504.
UN Document A/519, p. 105.
Sir Hersch Lauterpacht, Oppenheim’s International Law, vol. I, 8th Ed. (1955), p. 69. Former Judge De Visscher writes that codification is never a mere declaration or restatement of rules said to be already in existence: it always aims to replace divergent views and practices with some unity in the interpretation and application of the Law; Theory and Reality in Public International Law (1957), p. 144.
In its report to the General Assembly upon the completion of its work at the Eighth (1956) Session, the International Law Commission made this comment: “In preparing its rules on the law of the sea, the Commission has become convinced that, in this domain at any rate, the distinction established in the statute between two activities can hardly be maintained. Not only may there be wide differences of opinion as to whether a subject is already “sufficiently developed in practice,” but also several of the provisions adopted by the Commission, based on a “recognized principle of international law,” have been framed in such a way as to place them in the “progressive development” category. Although it tried at first to specify which articles fell into one and which into the other category, the Commission has had to abandon the attempt, as several do not wholly belong to either.
Manley O. Hudson “First Conference for Codification of International Law,” 24 American Journal of International Law (1930), at pp. 448–9. Former Judge Hudson writes: “The Preparatory Committee ... drafted rules of procedure ... which distinguished between declarations establishing agreed principles of existing law and conventions dealing with matters not clearly covered by previously existing law ... The Conference was reluctant to commit itself to these distinctions .... Sentiment grew quite rapidly against any attempt to state what was the existing law as distinguished from new legislation, and after two weeks it became clear that even the use of the term declaration was stoutly opposed.”
P. E. Corbett, Law and Society in the Relations of States (1951), p. 278.
Julius Stone, Legal Controls of International Conflict (1954), p. 22. Liang notes the view of Professor Brierly which holds that codification is a necessary “scientific” task. “General Assembly and Codification,” p. 71. This writer has the greatest respect for the works of the late Professor Brierly and has no wish to appear frivolous, but he is compelled to ask whether Brierly and a host of others, really think that there can be such a thing as a scientific codification of international law.
Lauterpacht makes the following well-taken points: “... the experience of codification under the United Nations fully confirms the past attempts to the effect that there is very-little to codify if by that term is meant no more giving, in the language of Article 15 of the Statute of the International Law Commission, precision and systematic order to rules of international law in fields where there already has been extensive State practice, precedent and doctrine ... the task of codification ... calls for a combination of legislative activity with measured adherence to a legal rule sactioned by tradition and by considerations of unimpaired validity.” “Codification and Development of International Law,” 49 American Journal of International Law (1955), pp. 16–43.
Clyde Eagleton, “First Session of the International Law Commission,” 43 American Journal of International Law (1949), pp. 758–762.
U.N. Document A/CN.4/53.
Yearbook of the United Nations International Law Commission 1952, vol. I, p. 143.
It is to be observed that his position does not reflect the usual Soviet attitude toward courts and the development of law, but it does reflect the Soviet policy with respect to sovereignty over coastal waters. In other words, here is an example where the participation of a jurist, schooled in a particular legal system, ignored the precepts of his system in a situation where they might clash with policy. Marek St. Korowicz, An Introduction to International Law (1959), p. 145f.
Yearbook of the United Nations International Law Commission, 1952, vol. II, p. 35; English translation taken from UN Document A/C.6/L.378.
UN Document A/CN.4/61/Add. 1.
If the height of the observer’s eye is 5 meters or 16.3 above the surface of the sea, he will hav a horizon distance of visibility of 4.63 miles. This is called the visible horizon. Twice this distance is 9.26 miles. Bowditch, American Practical Navigator, 1959 Edition, Table 8.
See sketch of Buzzard’s Bay, figure 19, page 77.
S. Whittemore Boggs was a geographer by profession and author of the still standard work, International Boundaries: A Study of Boundary Functions and Problems (1940). He once wrote: “Problems on delimiting territorial waters should be studied objectively from every practical aspect and especially that of the navigator, with a view to simplicity, impartiality of results, and economy in publication.” His own prescription for the solution of our problem is contained in “Delimitation of Seaward Areas under National Jurisdiction,” 45 American Journal of International Law (1951), pp. 240–266.
The specific wording of this draft contained in Document A/6N.4/61/Add 1, is quoted in Annex A to this section.
UN Documents A/CN.4/71 and Add. 1 and Add 2. Actually these documents recorded obeservations and information regarding the question of the delimitation of the territorial sea of two adjacent States, but some strong claims and counter-claims were made by Netherlands and Belgium in connection with the mouth of the River Schelt. The United Kingdom stressed adherence to “first principles,” one of which is freedom of the seas, and pointed out that if disputes arise, they should be settled according to international law and not ex aequo et bono.
UN Document A/CN.4/77, p. 10.
UN Document A/CN.4/88, pp. 35–58.
UN Document A/CN.4/90, p. 25.
UN Document A/CN,4/9o, Add 2, pp. 6–7.
UN Document A/2984, p. 18.
Ibid.
UN Document A/CN.4/99. The States were Brazil, Turkey, Israel, United Kingdom and United States.
United Nations, Yearbook of the International Law Commission, 1956, vol. I, p. 197.
UN Document A/3159, p. 3.
U.N. Document A/CN.4/61/Add. 1.
Resolution no5(XI), reproduced in A/Conf.13/30 at p. xi.
Document A/3159.
Since the end of World War II, however, there had been a number of Inter-American Conferences dealing with the same subject matter on a regional basis. A review of that activity is contained in McChesney, U.S. Naval War College International Law Situation and Documents, 1956, at pages 237–294. The article on bays drafted by the Inter-American Council of Jurists is reproduced in Annex A to this Section.
American Journal of International Law (Oct. 1958), p. 731.
UN Document A/Conf.13/7.
One commentator on the Geneva Conference made the comment: “Frankly, I think it should be recognized that knowledge of fisheries biology, and equally importantly, of the economic aspects of fisheries, is not particularly far advanced and certainly that available information is very unevenly distributed.” William T. Burke, “Some Comments on the 1958 Conventions,” Proceedings of the American Society of International Law, 1959, p. 204. This, of course, is a value judgment, but it is one that is difficult to reconcile with the rather voluminous literature available on marine biology, fisheries and fishery economics. Much of the more important literature was expertly digested in preparatory documents for the Conference. It is somewhat surprising that Mr. Burke did not distinguish more clearly between ignorance of facts and ignoring of facts when State decision makers take or maintain policy decisions in the “world arena.” It is observed that Mr. Burke, in his learned comment, omitted any mention of the excellently done paper, “The Economic Importance of the Sea Fisheries in Different Countries,” A/Conf. 13/16, a preparatory document for the 1958 Geneva Conference submitted by the UN Food and Agriculture Organization.
A/Conf. 13/39, p. 146.
Chapter ONE, Section D.
Both of these gentlemen touched on the matter in a somewhat oblique fashion: Mr. Dean (U.S.) is reported to have: “... cited a recent case in the Far East, in which a State, by drawing an arbitrary line 115 miles long across a bay, had enclosed thousands of square miles of open sea and had claimed a territorial sea of twelve miles in addition to that.” (italics mine). The State was the Soviet Union. The bay was the Bay of Peter the Great off Vladivostock. The Rapporteur of the First Committee was Mr. Koretzky of the Ukrainian Soviet Socialist Republic. A/Conf.13/39, p. 26. Mr. Pheiffer is reported to have said that “there was [is] a close link between articles 5 and 7; any undue extension of straight baselines or the closing lines of bays, as envisaged in article 7, paragraph 2, would bring parts of the territorial sea under the regime of internal waters.” A/Conf. 13/39, p. 45.
The convention is “Convention on Fishing and Conservation of the Living Resources of the High Seas.” It is this author’s belief that if States ratify and abide by this Convention, there will be little ground for assertion that exclusive sovereignty over extended coastal waters is necessary for economic reasons. The convention does not remove the economic incentive for making such claims, but it appears to rob the economic argument of any validity it may previously have had.
A/Conf.13/39, p. 145.
Chapter TWO, Section A.
MacChesney, op. cit., p. 246; Pan American Union Document CIJ-29 (English), p. 38.
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Strohl, M.P. (1963). Efforts at Codification. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_5
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