The League of Nations

Territorial Waters

THE First Conference for the Codification of International Law is due to meet this year at the Hague, and the Preparatory Committee began its meetings at Geneva on Monday, January 28th. The title of this Committee is something of a mis- nomer, because the work of preparatiOn, extending now over four years, is almost at an end, and all that remains to do is to make the final arrangements. It is certainly time that public opinion were alive to the importance of what is going forward. From some points of view, doubtless, it is a mis- fortune that the activities of the League of Nations are so multifarious. The pressing political matters with which it deals, of course, receive adequate attention, but anything not purely political, anything not of the most immediate urgency, is apt to be lost sight of among a host of minor activities. This applies with peculiar force to the coming convention on International Law. The fact that inch. codification is so soon to begin has escaped the attention of not a few close observers of League affairs, though this is an event of quite outstanding significance.

The Conference is in a sense the successor of the two earlier Hague Peace Conferences, where representatives of the more important Powers met to settle by agreement disputed points of international law, but the contrast between then and now is much more striking than any comparison. For one thing when international law spoke of the Family of Nations it was of an aspiration rather than a reality ; the term itself was vague and nebulous. To-day the League can for many pur- poses command the adhesion of every State in the world. Again, because of the anarchic state of international relations, no distinctions were made at the earlier conferences between the most trivial if practicable business on the one hand and the more ambitious and spectacular projects on the other. The experience of the League has drawn a well-worn' line between the feasible and the impossible. But, above all, it is the atmosphere that has changed. The exalted tone Of amateur idealism, so pathetic as it now seems in retrospect, will have given place to the cool even temper of practised legislators. And enduring results may be looked fbt accordingly. '

THE MEANING OF CODIFICATION.

Of the need of the Conference there can, hardly be serious question. Anyway, one of the main topics of the Conference, Territorial Waters, will readily put doubters in mind of one of the most telling illustrations of recent years. When the United' States imposed Prdhibitlon arid wished to take the necessary steps to prevent infringement on the part of ships hovering off her coast, she was paralysed because it was felt to be unsafe to rely on the existing rule Of international laW. On thistopic the text writers may be less at variance than usual, but-beyond a certain point there is too Much uncertainty to make it safe to act. - As a result, it will be remembered, negotiations had to be entered into and the Liquor Trustees came into being. The friction caused at the time has by now, of course, wholly disappeared, but it requires little imagination to realize what unfortunate consequences such -friction might have had. After all, Anglo-American relations have not always been, either before or since, as friendly as they were then, and presumably there must always be ups and downs in international relations. Had there been a well defined, generally accepted statement of the law America could have acted on it as her interests demanded without -any -fear of complications or any need to bargain. This is but one instance, but it will serve as an illustration of many. The absence then of elearly-defined rules creates occasions of inter- national conflict, the existence on the other hand of well understood, readily applicable principles makes for security and peace. It is the realization of this and the desire to im- prove international relations. accordingly, that is at the back of the movement for what is called the codification of inter-

national law. .

CODIFICATION. AND. THE LEAGUE.

The movement soon. made itself• felt- at Geneva, •and the task, of the progressive codification of international law was

before long taken well in hand. It was in 1924, the year of what many regard as the second birth of the League. On September 22nd the Assembly requested the Council to con= vene a committee of experts to prepare a provisional list of subjects which seemed ripe for codification, to take the opinions of the various Governments thereon, and report to the Council. The Council accordingly appointed a Committee of sixteen under the chairmanship of M. Hammerskjiild, the President of the International Lavi Association for that year. It is due to the great skill of this committee that the ground has been so well explored and the preparatory work so efll• ciently performed. After selecting a provisional list of subjects, the half-dozen topics upon which the greatest measure of agreement might be expected, a number of questionnaires were sent out to the various Governments. On the replies received the committee was able to report that certain topics, among them Nationality, Territorial Waters, Damage to the Person or Property of Foreigners, appeared ripe for codifica- tion. Accordingly, these three topics figure in the Assembly's Resolution of September 27th, 1927, which requests the Council to submit them to a first conference. From the Governments' replies it appears that twenty-one States— other topics gained. far fewer votes—regard the codification of the law of Territorial Waters as both desirable and prac- ticable. Three, however, including two such important maritime States as France and Italy, think the matter pre- mature, because of the diversities of geographical, economic and political circumstances of the different countries.

A DRAFT CONVENTION.,

On Territorial Waters the , Committee prepared a draft convention, which was attached to the questionnaires. Its starting-point is the law as at present, understood. The better opinion among jurists is that the practice of nations has created a rule of customary law that a three-mile limit marks the boundary of the zone of marginal waters within which the State posiesses unquestioned jurisdiction. Wider limits, it must be confessed, have been contended for, and it may be that the Scandinavian countries have a prescriptive right to a four-mile area. Beyond that limit, though on this point there is more controversy ; the State may be entitled to a reasonable measure of control for the protection of its interests. The Draft Convention follows these lines fairly closely. The earlier articles provide that the State possesses sovereign rights over the zone which washes its coast to the

extent of three marine Beyond the zone of sovereignty,

• may *ekercise administrative rights on the ground

either of custom or of vital necessity. Included are the rights of jurisdiction necessary for their protection. •A. later article makes provision for the pursuit of offending shipS beyond theliniits of territorial waters. The use of the expres- sions " sovereignty " and " sovereign rights " is to be regretted It seems to suggest rights above the law, such as have been claimed by abiolutist monarchs in the past and by backward Stites more recently, pretensions which international kw can never concede. Mr. Wickersham has criticized the tern " administrative rights " as heing too wide. This sari much for the cOnspiduous intellectual honesty of the Anierican repre7 sentative, seeing that it is to his country's benefit to haVe the rule as wide as possible. Dr. &kicking proposed the estab-: lishment of an International Waters Office for registration Of special rights, and with authority to deal, subject only to the Permanent Court of international Justice, with controversies arising out of the convention. Unfortunately this was rejected, but more it is to be hoped will be beard of it in the future.

The task of the newly appointed Preparatory 'Committee of five is to prepare a statement .showing which artieles command the greatest common measure of agreement *and where the more important divergencies lie for the informatiOn of the' Conference. The Conference can then frank a con= vention of its own, though donbtless it will follow the draft . as closely -as possible. Important- political interests are of course at stake ; the overriding interest, hoWever, is' the

common -concern. for a Certain universal ' • •