Judged by its inability to agree upon a convention on territorial waters, as the substance of things hoped for, the Conference for the Codification of International Law was a failure. Good may come of the Conference. It may have been a necessary preliminary stage in a very long and difficult process. Nevertheless, the fact remains that its purpose was to agree upon a convention upon territorial waters and it failed of its purpose. Usually the cause of the ill-success of a conference is lack of preparation. This failure cannot be ascribed to lack of preparation. It is unnecessary to rehearse the antecedent steps. Several years had been devoted to preparation. Governments had agreed that the subject of territorial waters was suitable and ripe for codification. In addition to the work done by the Committee of Experts and by the Preparatory Committee, the governments had answered voluminous questionnaires and had made observations upon detailed schedules of points from which had been prepared the bases of discussion. All of this work had been completed and in print months before the Conference met. Apparently nothing was left undone by the agencies of the League of Nations in order that the various governments might have ample opportunity for examination and study of the questions involved. And, it may be added, the observations of the governments were for the most part responsive and illuminating.

From time to time since the middle of the nineteenth century various efforts have been made to codify international law. Most of these have dealt with administrative and international private law (the conflict of laws) and more particularly with the laws of war and neutrality. Some of these efforts, particularly those of jurists of the Western Hemisphere, have, included in their scope the whole field of public and private international law. It was, however, left for the League of Nations to launch upon a world-wide effort to place in code form those rules which are regarded as the body of law on three important subjects of public international law. These efforts culminated in the Codification Conference held at The Hague from March 13 to April 12, inclusive, 1930. The three subjects before that Conference were Nationality, Territorial Waters, and Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners.

There is no topic of present interest, involving as it does the status of men, women and children of various countries, and even of birth in the same country, as that of nationality. It bristles with difficulties! To begin with, various terms are used, apparently meant to mean one and the same thing, although unless they are carefully defined, they may refer to different aspects of the subject. For example, “ national” is used as a synonym for “ subject” or “ citizen,” yet one may be a national of a country, and subject to its jurisdiction, without, however, being a citizen—as in the case of the Filipinos, who are, indeed, subject to the Government of the United States and entitled to its protection abroad, although they are not citizens either in the sense of international, or of national law. Then there is a difference of opinion as to the branch of law to which the matter belongs—the Englishspeaking peoples regarding it as forming part of the public law of nations, whereas others consider it as more properly falling within the domain of private international law, to which, in turn, the English world gives the not inappropriate designation of conflict of laws.

Although the Constitution of the United States declares in the Fourteenth Amendment that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, Congress has enacted legislation affecting the diplomatic protection of citizens abroad which makes a material distinction between persons born in the United States and those who have been naturalized in this country. This distinction has caused considerable discussion as to the political status of naturalized American citizens against whom the presumption of cessation of citizenship has arisen by virtue of the provisions of Section 2, Act of March 2, 1907, and recently has been interestingly illustrated before international claims commissions.

The transarctic flights of 1926 and 1928 demonstrate the possibility of establishing communication by air across the Arctic regions between Europe, on the one side, and North America and the Far East on the other. Quite aside from the saving of time owing to shorter distance, the establishment of such communication presents considerably less diiSculty than air communication over the Atlantic: a conclusion derived from the transatlantic flights of the last three years. The experience of the airship Italia in May, 1928, does not at all nullify this conclusion. It serves merely to show that the organization of transarctic communication requires special prearrangements, such aa wireless stations, meteorological stations, landing-places, air-bases, the construction of which on the shores, islands, and even on the ice of the Arctic Ocean, appears to be quite feasible. The necessity for such stations has aroused in the governments of the North countries an increased interest in the Arctic regions which heretofore has been restricted to scientific circles.

On March 13,1930, a conference will meet at The Hague to make progress in the codification of international law about territorial waters. Implicit in the plans for this meeting are two assumptions. The first, that it is better to codify the law rather than to follow the road traveled by the American Law Institute and “ restate” it. The second, that codification may more wisely be expressed in spatial than in causal terms. As to the first assumption, is it right? As to the second, it is submitted that, irrespective of whether one is drafting a custom or a code, the particular subject of territorial waters should be examined and set forth in causal rather than in spatial terms. It is submitted that the law of territorial waters has been, is, and in its nature must remain a thing of custom, not statute or treaty, and that any attempt to treat it differently will have the effect which thirtyfour years ago the late F. W. Maitlan prophesied was to be expected from the excesses of restricting by putting enactments into constitutions in the United States. “ First,” he said, “ you will get the effect of a dam,—and then you will get the effect of a flood.” Both have been seen.

The progress made in international organization during the course of the last decade is nowhere better illustrated than in the elections of members of the Permanent Court of International Justice. A generation ago, when the Permanent Court of Arbitration was created, following the meeting of the first Peace Conference at The Hague in 1899, no attempt was made to depart from the equal representation of all participating States; and the Convention for the Pacific Settlement of International Disputes of that year provides (Article 23) that each State may name four members of the Permanent Court of Arbitration. Nor did it prove possible to depart from that system at the second Peace Conference at The Hague in 1907; in the projet for a permanent court of arbitral justice which was drawn up at that time, no provision could be made for the election of judges of such a tribunal, because agreement could not be reached. The International Prize Court, provided for in the Convention of October 18, 1907, which was never ratified, was to be composed of judges and deputy-judges appointed by each of the contracting Powers. It was to have fifteen judges sitting at any session; those of the eight “Great Powers” were to sit in all cases, and the judges and deputy-judges appointed by other Powers were to sit “by rota” ; but this provision was not accepted by at least ten of the signatories to the convention. Here was a recognition of the special position of the great Powers, and an attempted compromise with the principle of equal representation which failed. In the years following 1907, an effort to have the same system applied in the selection of judges of a permanent court of arbitral justice proved abortive. In the Central American Court of Justice, existing from 1908 to 1918, one judge was selected by each of the States maintaining the court. So that in our entire experience before 1914, there was no indication of any successful method by which the members of a permanent international tribunal might be selected, apart from the equal representation of all States concerned.

The year 1792 marks the beginning of the long European struggle which started as the French Revolution and culminated in the Napoleonic Wars. The first notice that a state of war existed reached the Government of the United States August 2, 1792, when the French Minister at Philadelphia, M. Jean Temant, informed Thomas Jefferson, the American Secretary of State, that the French Government had declared war against Hungary and Bohemia. The Secretary of State, in reply to this notice, assured the French Minister that the United States would remain friendly to France “and render all those good offices which shall be consistent with the duties of a neutral nation.” This expression of Mr. Jefferson seems to be the only direct acknowledgement by President Washington or his Cabinet that the United States had been placed in the position of a neutral state.

Among the three subjects which the Committee of Experts for the Progressive Codification of International Law considered ripe for codification was the subject of “Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners.” Acting on that assumption, the Committee sent out to the Governments at least three separate documents between 1925 and 1929: first, a Report of its Sub-committee, consisting of Messrs. Guerrero of Salvador, and Wang Chung Hui of China second, a Schedule of Points drawn up by the so-called Preparatory Committee of Experts, a smaller body, and designed to elicit replies from the different governments, presenting their views on different aspects of the general subject; and finally, the Bases of Discussion, consisting of the replies to the Schedule of Points made by some thirty governments, the substance of these replies being then crystallized into propositions called Bases of Discussion, on which The Hague Conference of the governments, called for March 13, 1930, was to conduct its deliberations. Perhaps that Conference was handicapped from the start by the fact that the Guerrero report, which had been circulated, departed materially, in some of its fundamental postulates and premises (representing minority views) from the subsequent Bases of Discussion, which reflected the views of the majority of the replying governments. Of the Latin-American nations, Chile was practically the only country to respond to the Schedule of Points on the Responsibility of States, and then only within the narrowest limits.