Letter from Francis T. Cremins (for Joseph P. Walshe) to Count Gerald O'Kelly de Gallagh (Paris) enclosing copy of a memorandum on the codification of international law
(34/35)

M E M O R A N D U M

1. With reference to the Secretary General's circular letter No. 21. 1931. V. of the 27th February last, with enclosures, on the subject of the codification of international law, the Irish Government have the honour to submit the following observations for communication to the Assembly at its forthcoming session. In formulating these observations, the Irish Government have had before them the observations of the Cuban, British, Indian, Lithuanian and Polish Governments contained in Document A. 12. 1931. V., Series I.

2. The Irish Government would emphasise the fundamental importance of developing the rule of law in the relations between states. They believe that it is essential to the progress of justice and the maintenance of peace to define, improve and develop international law, and that justice and peace can best be promoted and maintained by a system of law which is in form precise and clear and which is general and equal in its application. The development and the maintenance of a comprehensive and effective body of international law is, therefore, one of the most important tasks confronting the states of the world.

3. The existing position of international law is, in the opinion of the Irish Government, susceptible to improvement in two directions.

4. In the first place, the creation of new rules of international law to meet new situations and circumstances in international life, and the alteration of existing rules of international law to meet the changed situation of affairs, are tasks which all the states of the world should undertake in concert and pursue consciously and deliberately as an essential part of the work of the progressive organization of world peace. The extent of the work of this nature which has been completed, or undertaken, by the League of Nations and other agencies is well known. But this work covers only a relatively small portion of the field of international relationships. The rules of international law developed before the War of Nations were the result of a spontaneous and instinctive growth from sources such as custom, the practice of states, the decisions of international tribunals and treatises of high authority - a growth more or less independent of the control of the general body of states and their Governments - and not the result of the purposive pursuit of an international order based upon just and general legal rules. Serious doubt may be entertained as to the extent to which rules of law derived from the sources just enumerated and developed at a time when no organization existed which had as its object the conscious promotion and maintenance of universal peace can continue to command authority in an age in which the co-operation of states for common ends - by treaties and otherwise - has become the accepted instrument of the progress of the world. Undue delay, moreover, in bringing the rules of international law into conformity with the new facts and relationships of international life may impair the organization of peace and imperil its objects.

5. In the second place, the existing system of international law is open to serious criticism on the ground of its form. The form of law, and particularly of international law, is of paramount importance. If the rules of law are not clear or if they are not readily accessible to those who seek them the law itself cannot influence conduct. If the prescriptions of the law are ambiguous or uncertain, conflicts as to legal rights are more likely to arise and greater difficulty is likely to be encountered in bringing them to a satisfactory settlement. It is of considerable importance therefore that the rules of international law, both those already in existence and those being created and to be created hereafter by international legislation should, so far as possible, be framed in a simple, accessible and unequivocal form.

6. In the opinion of the Irish Government, the progressive improvement of the existing body of international law in the two directions indicated is preeminently a task for the League of Nations. The League would, of course, invite the States non-Members of the League to participate in its work in this connection.

7. The Irish Government consider that the question of the methods, organization, etc. to be adopted by the League in the pursuit of this task were best entrusted to the consideration of a Technical Committee, in conformity with the proposal made by the Irish Delegation at the First Committee of the Eleventh Assembly. They feel, however, that it may be useful if they indicate at this stage their views as to the lines upon which the future activity of the League in this field should be organised.

8. Before doing so, however, it may be well to refer to the difficulties which have arisen in connection with the employment of the term 'codification' to describe the activity hitherto pursued by the League in connection with the development of international law. The Irish Government realize the confusion which has been occasioned by the undifferentiated use of the term 'codification' to describe both the process of reducing the existing law to a clear and definite form and the process of stating in a clear and definite form those new rules by which the States may agree to be bound. The confusion which has arisen in the past in connection with the use of the term 'codification' has made it necessary to draw a distinction between the two processes just described, but the Irish Government nevertheless feel that it is possible to exaggerate the practical importance of maintaining this distinction in the organization of the future work of the League in connection with the development of international law. The aim and object of that work should, in the opinion of the Irish Government, be to produce simple and unequivocal statements of the law to which States find it possible to give their express agreement. It may be anticipated that in many cases these statements would simply amount to statements of the law as it already exists: in other cases, they will contain new principles or amendments of existing rules. But in either case an important and valuable work will have been achieved if there are produced clear and unequivocal statements of rules by which states expressly agree to be mutually bound and which they recognize as clearly defining their mutual rights and obligations with regard to the subject matter concerned.

9. The Irish Government suggest that the future organization to be adopted by the League in pursuit of the objects defined in the preceding paragraphs, might be as follows:

If the Assembly approves the instruments, they should at once be thrown open for acceptance by States. Acceptance of the general acts or conventions approved by the Assembly would be by means of accession, as in the case of the General Act of 1928 for the Pacific Settlement of International Disputes. Their provisions would be expressed to apply only as between the parties to them. They would contain saving clauses relating to the existing principles and rules of international law, similar to those inserted in the instruments concluded at the First Codification Conference held at The Hague in March-April, 1930, and they would also contain provision for their periodical revision.