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1, , CONCEPT OF CODIFICATION OF INTERNATIONAL LAW, Anomitra Debnath 1, The laws of any time do not solely belong to contemporaries who witness its making; nor do, its makers hold the proprietary right to shape and restrict its evolution. Laws, a little like, culture, are preserved and propagated in a repository reflective of man’s ethical and moral, history. In fact, there was a time when law, ethics, and morality were considered synonymous, to each other in multiple cultures and religions. However, with the expansion of history,, modern laws hardly remain as simple and self-evident as they once were. They are no more, rooted purely in moral codes or the principles of natural justice although essentially, such, principles continue to find a place for themselves even in the modern legal system., Regardless, the complication and loss of brevity of law calls for the concept of ‘codification’, of law to satisfy the different needs and uses of a codified law. It is here that the 21st century, legal system finds itself—where codification is an integral and inseparable part of ensuring, an enduring record of laws that the world knows to abide by., What does ‘codification’mean?, Codification refers to the process of reducing the body of laws governing society to enacted, law. This would essentially imply that whatever law we follow—customary, or legislated—, essentially takes on the form of codified law once it is written down as enacted law with, binding effect and, so to speak, set in stone., The History of Codification, The history of codification is almost as long as that of law itself. Attempts to codify rules of, governance have expectedly been both ancient andnumerous. The primary aim was, of, course, preservation and propagation of a uniform code of conduct. However, in context of, international law, codification attempts have been relatively less ancient having germinated, only in 1792 with a product of the French Revolution—The Declaration of the Rights of Man, and Citizen (Déclaration des droits de l'homme et du citoyen de 1789)—presented at the, French Convention. 2 The document sought to declare the fundamental rights for all men and, could pass as an attempt to codify international law by its universality. Although, the, , 1, , B.A.LLB. (Hons.), 1st Year, Hidayatullah National Law University, Atal Nagar, Raipur., J. Llewellyn and S. Thompson, The Declaration of the Rights of Man and Citizen, ALPHA HISTORY (July5, 2019,, 8:45 PM), https://alphahistory.com/frenchrevolution/declaration-rights-of-man-and-citizen/., 2

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2, , Declaration failed to achieve its objective, it did set precedent for future attempts to condense, and codify law., The failed French attempt was followed shortly by Jeremy Bentham famously renewing the, idea of codifying international law in his vision for law reforms. 3 The Benthamite utilitarian, approach reflecting even in his views regarding the concept of codification, he is known for, encouraging the process of codification in order to ensure uniformity, better access,, longevity, and preservation of laws. In fact, what he preached was a positive code of law that, could be accessible and easily understood at large so as to effectively come up with a code of, law that could successfully govern people “internationally”—a term he coined. The idea of a, law between nations, to him, was insufficient as it suffered from a variety of inadequacies;, most notably its lack of tangibility. A positive code would solidify the conception of a global, and international legal system. Thus, in many ways, Jeremy Bentham’s ends were not so, different from what the modern legal system seeks to derive from a codification of, international law., Ever since the foundations of the concept were laid down by Jeremy Bentham, the idea that, international law should be codified has further been evolved and attempted to be put into, practice through numerous conferences, conventions, and declarations such as The, Declaration of Paris in 1865 and its ramifications in the Crimean War (whereby it set, guidelines on the abolition of privateering),expression of support in favour of codification by, numerous philosophers and writers, followed by two conventions at The Hague in 1899 and, 1907 respectively. However, the true breakthrough in activity came under the League of, Nations when in 1924 it passed a resolution establishing a 17-member committee to, formulate a code for international laws. Subsequently, The Hague Conference (the first, conference for the codification of international law was held in 1930. The main matters under, consideration were nationality laws of various states, territorial waters, responsibility of states, for damage done in their territory to the person or property of foreigners. The true, significance of the conference lies not in its position as the first conference that sought to deal, with the codification of international law but instead in its eye-opening nature. There had, been, so far, an assumption of relative ease in codifying international law but this was soon, dispelled when the Conference reached an agreement on only one of the three matters before, it. It soon became apparent that the process of codification of international law was going to, 3, , GUNNAR M. EKELØVE-SLYDAL, PHILOSOPHICAL FOUNDATIONS OF INTERNATIONAL CRIMINAL LAW:, CORRELATING THINKERS 429-431(Morten Bergsmo and Emiliano J. Buis eds.,Publication Series No. 34 2018).

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3, , be gradual, tedious, and long-drawn. Regardless, it is to the credit of the society of lawmakers, and legal theorists as a whole, that codification of international law continues to be made, relevant despite its difficulties., A Place in the Modern Legal System, According to Article 13, paragraph (1)(a), of the Charter of the United Nations, the General, Assembly is mandated to encourage the progressive development of international law and its, codification. The progressive development of international law encompasses the drafting of, legal rules in fields that have not yet been regulated by international law or sufficiently, addressed in State practice. In contrast, the codification of international law refers to the more, precise formulation and systematization of rules of international law on subjects that have, already been extensively covered by State practice, precedent and doctrine. 4, Analysing the Merits and Demerits of Codification, On the face of it, the concept of codification seems to be a fairly one-sided one and not one, that would bring with it a number of demerits and although that is not entirely true, to say that, codification has no downsides at all is both myopic as well as ignorant., The merits of codification are fairly obvious. Every legal system relies on uniformity,, universality and stability. International law is largely evolved on a consensual basis and is, hence, especially lacking in all three areas. Treaties and conventions as legislations that, govern the law between nations is neither universal nor uniform owing to the fact that nations, join these by choice and not as a matter of compulsion. Furthermore, the option to restrict, applicability of these laws on themselves is always available. Therefore, the efficacy of such, modes of international law making is restricted. In the absence of adequate uniformity and, ubiquity, the requirement of stability thus also remains unfulfilled. In such a situation,, customary international law by virtue of its universal applicability fills in the gaps. However,, customs are not particularly written down and hence absolutely certain. Hence, they too need, to be codified in order to lend stability to the international law framework and herein, the, primary advantage of codifying international law is illustrated., Despite the obvious desirability of such codification, the process is hardly so easy. For one,, nations tend to disagree according to their own political interests. Unlike the codification of, , 4, , Codification Division, Office of Legal Affairs, Codification and Progressive Development of International, Law, UNITED NATIONS (July 5, 2019, 10:24 PM), http://legal.un.org/cod/.

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4, , national laws, this process involves a multiplicity of parties whose assent is equally valued, and required. Moreover, even if we were to disregard (or overcome) these difficulties to, actually codifying the law, codification itself has some demerits. Setting the law down in, stone automatically means that it may not be easily changed in accordance with the needs of, the era. Also, due to the legal language typically used in codification, a tone of conservatism, is inevitable. However, this rigidity may be easily remedied by a trend of progressive, interpretation of such codified laws and ultimately, the merits of codifying law far outweigh, the flaws inherent in it. These flaws have virtually no real cost that must be borne and it is, even more pertinent to note that these do not have the potential to be irremediable and hence,, to result in a stalemate. Thus, there lies no real cause to not aggressively pursue the, codification of law, especially international law as an area that truly needs it., Conclusion, The importance of codification in international law is often understated. It would be remiss to, not give the concept of codification its due. Indeed, it is hard to imagine a legal framework, that is reliant on oral laws, uncertain and ambiguous customs, and unclear legislation. The, system of laws is perceived by many to be convoluted, cloudy, and contradictory. This view, cannot be completely refuted as it is true that the formal and technical nature of laws, the, sheer number of them and the inconstancy of their variance geographically and temporally,, complicates its very nature. Consequently, there is often a denial of access to laws which,, ironically, is meant for every man to be familiar with. In this context, codification is no less, than a machine that greatly simplifies the international legal framework. Its role is not to be, mistaken with seeking to replace or eliminate the need for lawyers, policymakers and others, who work in the legal field, but instead to allow for a reduced disparity between such persons, and the common man. Internationally speaking, it allows for a more level playing field and a, fairer system that is accessible to all and rarely exploitable due to its lack of ambiguity. Thus,, the concept of codification of international law stands, today, as an indispensable tool in, serving the interests of justice.