The increasing frequency of arbitration and the pressure for a regular court of international justice composed of permanent judges, have given new emphasis to the demand for what is called the codification of international law.

The process and the result intended to be described when the term codification is applied to international law involves something very different from the codification of municipal law. The codifier of any part of the law of a nation finds the law with which he is to deal already in existence and authenticated. It may be confused in form and apparently unrelated in its parts: it may be scattered through the statutory enactments of many years and the declarations of a multitude of judicial decisions; the codifier may have to struggle with difficult questions of apparent inconsistency, of doubtful repeal, of obscurities in expression calling for interpretation and construction, and with conflicts of judicial opinion; but the expressions which he considers all come from the same law-making power. Somewhere in the mass of material is to be found the final expression of legislative will, the controlling decision of the courts, and when these are found everything inconsistent with them may be rejected as repealed or overruled. The codifier's task is to find what the rules really are; to put them in due relations to each other under appropriate heads in accordance with some systematic scheme of arrangement; to bring order out of confusion; to furnish a methodical statement of the results of his researches which may make the law plain to the people who live under it and may relieve countless lawyers from the necessity of going through the same wearisome process of inquiry in each separate case. When the work is complete, if it is acceptable, the legislative power of the state puts its stamp of approval upon it and resolves any doubts or uncertainties by its acceptance of the codifier’s conclusions. It may indeed be that the research of the codifier and the clearer view presented by a systematic arrangement will have revealed inadequacies of expression, incongruities, and omissions in the existing law, but, as to these, the suggestions of the codifier for remedying the defects discovered will be accepted or rejected by the single fiat of the legislative body which enacts the code.

The Arbitral Tribunal of the Permanent Court at The Hague, by its award of the 7th of last September, in the case of the North Atlantic Coast Fisheries, brought to a close a controversy which in its various phases has been an almost constant source of vexatious dispute between the United States and Great Britain for the past seventy years.

A treaty, granting exceptional rights, such as that which this Tribunal was called upon to consider, is peculiarly susceptible to different interpretations as the course of time brings new conditions not contemplated by its negotiators. The relations of the parties are changed. A liberty which at the date of the treaty was considered indispensable may become worthless, while one which was deemed insignificant may in years assume a place of vital importance to the beneficiaries under the grant. This change of conditions and of the value of rights has been especially true of the liberties acquired by the United States for its inhabitants under the first article of the Treaty of October 20, 1818.

Law is the whole of the rules which regulate the relations of men. At the commencement of civilization and, even at the present day, primitive peoples and nations not in a complete state of civilization have clothed these rules with supernatural attributes; they have been represented as having been imposed upon mankind by a supernatural power; they have been given the effect of magic formulas, which, it is to be supposed, result in the chastisement and punishment of those who violate their dictates. Following the development of humanity step by step, three separate domains of law have been marked out: private law, or the law of men in the character of individuals; public or political law, or law as applied to men in their capacity as members of the state; and finally, the law of nations or international law, in other words, the law of states.

When one state takes the place of another and undertakes a permanent exercise of its sovereign territorial rights or powers, there is said to be a succession of states. This succession may be called universal in case of total absorption, whether through voluntary agreement, forcible annexation or subjugation, the division of a state into several international persons, or the union of several states into a single international person. Universal succession may also be said to exist where a state is broken up and divided among several previously existing states, as in the case of the division of Poland between Kussia, Prussia, and Austria.

The history of international law is essentially a history of the law governing the members of the international community of states in their relations with one another. Inasmuch as the observance of well-established customs of the law of nations implies the existence of an international community of states based upon a general recognition of the fundamental principles of territorial sovereignty and legal equality of independent states, such a law (in the strict and full sense of this term) could not possibly have been developed prior to the rise of the modern European state system, at the close of the Middle Ages or during the fifteenth and sixteenth centuries of our era. Nevertheless, we are by no means without evidence of the observance in intercommunity intercourse of certain rules and customs, even during antiquity and the Middle Ages, mainly with a religious sanction. This was especially the case in Greece, where there were developed rules and customs of intermunicipal law which, in many respects, bear a truly remarkable resemblance to our modern system of international jurisprudence.

Military espionage has been regarded from time immemorial, in all countries and among all nations, as a military offense of great criminality. Its penalty is death by hanging. This is the common law of war. Some nations have by orders, decrees or municipal laws, defined what constitutes this offense and provided for the trial and punishment of the offender. It should be observed, however, that espionage, being an offense at the common law of war, punishable by death in a particular mode, a spy may be executed without any municipal law on the subject, and that municipal laws, in regard to espionage, are binding only upon the state which makes them; they form no part of the international code.

In the Clayton-Bulwer treaty of 1850 the United States and Great Britain agreed that neither would ever erect or maintain any fortifications commanding the canal or the vicinity thereof. The Hay-Paunceforte treaty of 5 February, 1900, by clause 7, stipulated as follows:

The movement for the creation of a definite and permanent organ for the authoritative declaration of international law in controversies between states involves in it a transition from the concept of moral to that of legal obligation. The cardinal element in the concept of legality, that which distinguishes moral duty from legal obligation, is that in the latter case the duty is not enforced only through a general sentiment of right, but through a definite organization. An obligation may be said to be legal when in its determination and enforcement, definitely constituted organs are active. The obligation of a moral, ethical, or social duty, which is backed only by the general sentiment of the community, may be felt just as strongly by individuals as the legal obligation which is determined by a definitely appointed body of men. Yet this very definiteness of organization serves to impart greater strength, or at least rigidity, to the legal principles.