The scope of this paper is limited to the study of Communist China’s attitude toward some important legal problems of the United Nations, such as its legal status, the binding force of its resolutions and the Chinese representation question. In regard to sources, this paper is based upon Communist China’s official statements, treaties, the record of its international practice and the views expressed by certain Communist Chinese writers.

Few problems raised by the Spanish civil war are more interesting than those growing out of the fact that a state of war, in the legal sense, does not exist; belligerent rights have been accorded to neither of the contestants by third Powers. Consequently, on January 8 of this year, Germany turned over to the rebel authorities two Spanish loyalist vessels captured in retaliation to an “act of piracy”—an indictment earned by the loyalist government for its seizure of the German freighter, Palos. One may feel justifiably surprised that a government almost universally recognized as legitimate can be charged with piratical activities. Further reflection reveals that the Spanish situation presents many more questions concerning the rights and duties of the contestants as against third parties. In the absence of the recognition of belligerency, what are the rights of loyalist and rebel ships on the high seas? In the territorial waters of Spain? May the fascist or socialistic factions establish blockades? What are the powers and validity of their prize courts? Who is answerable for the illegal acts of the rebels should they lose—or be victorious? What claims will the Spanish Government have as against third Powers should one or the other prove successful? May the loyalist authorities by simple decree close to neutral trade the ports held by the insurgents? Moreover, how would all of these matters be affected if the maritime Powers of the world were to recognize the existence of a state of war, i.e., belligerency, in Spain? And, finally, in view of the magnitude and duration of the struggle, is there any justification for withholding such recognition?

At the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither, useless nor unwelcome.

The term “International Law” has, in the usage of our day, quite superseded the earlier expression “law of nations,” long since adopted as a translation of the Latin phrase jus gentium. The expression “International Law,” however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D’Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his “Principles of Morals and Legislation” (XVII, 326, n. 1), and has since his time come into general use. D’Aguesseau’s expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, — at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis.

The Alien Registration Division of the Immigration and Naturalization Service has announced that there are 695,363 alien Italians in the United States and 314,715 alien Germans. The census of 1940 indicated over eleven million white inhabitants born in a foreign country residing in the United States, and a recent release shows that about 65% of these became naturalized citizens.1 It can be calculated, therefore, that we have in this country, excluding orientals, a neutral alien population of about two millions. Are these persons protected by virtue of alien status from liability to military service? The issue has been confused by claims that rights under international law are violated by forcing neutral aliens to serve. In what follows, attempt is made to show that no controversial issue of international law need be raised, and that no such issue need interfere with the legal and domestic right of the United States to request alien service.

International law — to use Bentham's innovation of 1789, which has found favor with the public, instead of the older, more expressive term, law of nations—has been variously denounced and praised as international morality or ethics; international courtesy or convention in the social sense of the word; comity as distinguished from rule of law; or merely and finally as the foreign policy, such as the Monroe Doctrine, which at a particular time happens to catch the fancy of nations. If admitted as law in general or as possessing some of the elements of ordinary municipal law, the principle that pinches is declared not to be law and to have no binding force whatever, because there is no supreme court of nations in which the dispute may be litigated and no sheriff to execute the decree, supposing that one had actually been delivered. But the judgment of a municipal court is not self-executing, as, for instance, when President Jackson stamped his foot, saying: “John Marshall has made the decision; now let him execute it!” The executive officer of the court, the sheriff or marshal, did not enforce it, and that, forsooth, changed the nature of the transaction! Suppose the sheriff meets resistance in performing the mandate of the court, the armed force of the nation may be called upon and in final result the nation is in the field.

We are all of us today, even we international lawyers, disciples of Heraclitus. The international world shows itself so clearly in a “state of flux,” that a doubt on the central doctrine of that philosopher is no longer permissible. We theorists have therefore to take heed to build our doctrines on tendencies rather than on “facts” ; otherwise when we have finished constructing our systems, it may happen that the facts are no longer what they were when we began building, and the system is out of date before it is established.

The U.S. Foreign Sovereign Immunities Act of 1976 (the Act), which became effective on January 19, 1977, sought to codify the substantive law of sovereign immunity in the United States, while also modifying it in certain respects. An even more important goal was to make the application of such law more uniform, fair, and hence predictable, by relieving the Department of State of the responsibility to determine claims of such immunity, and remitting them exclusively to judicial determination, preferably in federal courts. Now, 2 years after it first took effect, it is appropriate to review the roughly two dozen cases that have applied and interpreted the Act, as well as certain questions that have otherwise arisen in practice, in order to ascertain whether (and, if so, where) significant uncertainties remain and amendment of the Act may be in order. Further, the taking effect of the new State Immunity Act 1978 in the United Kingdom on November 22, 1978, has provided an opportunity to see what others have learned from our experience. It also demonstrates the extent to which they have diverged from our design, suggesting the ultimate utility of a broad international convention on the subject.

Without belittling other functions of the United Nations one must acknowledge that it is hardly capable of taking coercive action in the event of a breach of the peace or of an act of aggression. The United Nations cannot guarantee collective security against aggression, because any permanent member of the Security Council may prevent, by its single veto, the application of sanctions against itself or any other state guilty of aggression. This important gap in the Charter has been filled in by agreements negotiated outside the Organization. The process of negotiating such agreements is not completed, certain areas of the world not being as yet covered by the existing treaties of mutual assistance, but the main lines have already been traced with sufficient clarity.

For a long time writers on international law took it for granted that the subject of their studies was a relatively recent product of modern civilization, and that the ancient world did not know any system of international law. If we go back to the literature of the nineteenth century, we can find a certain feeling of pride among internationalists that international law was one of the best fruits of our civilization and that it was a system which distinguished us from the ancient barbarians. Some of these writers paid special attention to this question of origins and endeavored to explain why the ancient world never could have had any international law.

Professor Briggs’ summary of the decision of the International Court of Justice in the Case Concerning the Barcelona Traction, Light and Power Company Limited fairly recapitulates the principal reasons which led the Court to deny “the existence of any general rule of international law or of any special circumstances or considerations of equity which confer a right of diplomatic protection of national shareholders in a foreign company where the acts complained of were directed by authorities of a third state against the company rather than against any legal rights of the shareholders as such.”

On September 22, 1976, the United States and the Government of Peru signed an agreement resolving the nationalization of the Marcona Mining Company’s Peruvian branch. The settlement, the intergovernmental negotiations leading up to it, and the expropriation itself are of more than passing interest. The settlement has been characterized by the U.S. Government as providing, when fully implemented, prompt, adequate, and effective compensation through a package—a combination of cash and long term sales relationship—which represents a relatively beneficial arrangement economically and politically for the Government of Peru. These arrangements were the more remarkable for having been concluded with a leading Third World country that has a long history of nationalization of foreign investment. In light of the frequency of expropriations of American-owned property abroad, and of the fact that in one or more ways such expropriations involve issues of the public interest as well as those of private U.S. companies, the Marcona settlement has implications for the handling of other investment disputes.

The impact of the nationalization by the Egyptian Government on July 26, 1956, of the Suez Canal Company (Compagnie Universelle du Canal Maritime de Suez) upon international affairs is still reverberating. The questions of international law and other problems to which it gives rise are manifold, but this article will be restricted to an examination of four of them: first, the international and legal status of the Suez Canal Company; second, the nature and legal status of concession agreements which are referred to in the text of the Convention of October 29, 1888; third, the international status and control of the Suez Canal, particularly under the 1888 Convention; and fourth, the matter of compensation.

Law, by whatever definition, is the authoritative voice of the community. Whether it be edicted by monarch or dictator, by representative assembly or the whole people, it speaks in the name of and binds the members of the community. It cannot rest upon the judgment of any member of the community; the essence of law is that it performs a group function. Law cannot speak upon the authority of an individual member; it must represent the authority of the group.

At the Third Conference of the Inter-American Bar Association held in Mexico City during July–August, 1944, a sub-committee of the Committee on Post-War Problems proposed a draft resolution relative to the diplomatic protection of citizens abroad which, if ever officially accepted by the American Republics, would erase as between those countries all of the existing international law on the subject. The resolution urged, first of all, that “diplomatic protection of citizens abroad” be abolished in favor of an international protection of the rights of man.