For almost a decade and one-half the Chinese participation question has challenged the United Nations. In its coming session the General Assembly will doubtlessly once again grapple with the question, but past debates do not promise rational solution. In brief summary, two claimants seek, or are proffered by others, to participate as the “State of China” in the General Assembly, the Security Council, and the Specialized Agencies. The Government of the Republic of China (Nationalist China) has held the seat since the founding of the United Nations. The People’s Republic of China (Communist China), however, commands resources of considerable magnitude, and events of recent years have enhanced its claim to participation.

The Hague Conference of 1907 is over and the delegates return to their respective countries. Aspirations for the pacific settlement of international disputes have been voiced and a list of possible arbitrators has been drawn up described by the formal name of the Permanent Court of Arbitration. Well and good! No obligation was accepted to have recourse to the Court, but at least the Conference went so far as to declare its acceptance of “the principle of compulsory arbitration” and its applicability to international agreements. At the same time the Conference declared that the divergencies of opinion in respect to compulsory arbitration “have not exceeded the bounds of judicial controversy,” and that the delegates, in the course of their long collaboration, had succeeded “in evolving a very lofty conception of the common welfare of humanity.”

Despite the growing interest in Chinese studies in this country, little, if any, attention has been paid to the study of Communist China’s view of international law. Some persons may feel that Communist China, as a Socialist country, cannot do other than to adhere to the Soviet concept of international law or that of Socialist countries in general. There may be some truth in this view, but it does not disclose the whole picture. Communist China does accept many principles of international law proclaimed or applied by the Soviet Union or by Soviet jurists, but in view of the growing differences of views between the two countries in handling many international problems and in conducting the international Communist movement, it is reasonable to infer that Communist China may have developed different views toward international law in some aspects. In this connection, it may be noted tha Wu Tê-feng, a prominent jurist in Communist China and President of the China Political Science and Law Association, not long ago severely criticized the Soviet concept of international law in a report delivered on October 8, 1964, to the general meeting of the Association.

A good deal of the creative energy of international lawyers in recent years has been absorbed in the continuing Soviet-Western debate revolving around the special Soviet juridical concept of peaceful coexistence or, in its Western-style and United Nations-endorsed euphemism, the concept of friendly relations and co-operation among states with differing political and social systems. Whether in the United Nations Sixth (Legal) Committee, in the authoritative, if private, International Law Association, even in the World Federation of United Nations Associations' scientific seminars, or at times in the International Law Commission itself, the discussion over coexistence (friendly relations) has tended to be a straight Soviet-Western dialectical contest that has been concerned sometimes with hammering out minimum principles of Soviet-Western accommodation in the Cold War era, and sometimes seemingly with the making of propaganda points that would be helpful in carrying on future Soviet-Western dialogues or even more perhaps in carrying the ideological war to the neutralist, uncommitted countries. The apparent achievement of a reasonably firm or stable Soviet-Western detente, with a consequent increasing focus on extension and development of minimum principles of world public order on a basis of reciprocity and mutuality of interest as between the two main competing legal value systems has been amply commented on already. In a sense, the international law of the detente, constructed on a pragmatic basis of inter-systems agreement or consensus, and demonstrated empirically in the actual record of such de facto accommodations and give-and-take, represents a species of “new” international law.* At least, it represents a new gloss on the old customary international law, albeit a gloss that is specially concerned, in the special societal conditions of the contemporary world community, with considerations of security, of stability of settled expectations, and of certainty and the avoidance of surprise in inter-group (more accurately inter-systems) relations—the old “Watchman’s State” legal virtues.

For 167 years the shadow of the Logan Act has fallen upon those Americans who trespass on the Federal monopoly of international negotiations which it creates. In theory, up to three years’ imprisonment and a $5,000 fine await those Americans who, without authority, communicate with a foreign government intending either (a) to influence that government with respect to a controversy with the United States or (b) to defeat the measures of the United States. Though only one indictment and no trial have taken place under the Act, who can tell when a new Administration, thinner skinned or harder pressed than its predecessors, may in its irritation call into play this sleeping giant? Now, at a time when domestic opposition to certain aspects of our foreign policy has reached a pitch unknown for many years, it would be well to reflect upon this curious product of the confluence of criminal law and foreign relations law before we are in fact confronted by a test of its strength. All could be the losers from an unpremeditated encounter—the defendant by finding himself, perhaps to his very great surprise, the first person subjected to the Act’s severe criminal penalties, the Government by finding itself stripped of its long accustomed protection by a ruling that the statute as it now reads is unconstitutionally vague or restrictive of free speech. Despite its long desuetude as a criminal statute, the Act represents a principle which I cannot help but think is, at its core, a salutary one; that America in sensitive dealings with other governments “speaks with one voice.” It embodies the concept of bipartisanship, that quarrels about foreign relations are fought out domestically and not with the adversary. It deters sometimes very ill-advised attempts to take the conduct of foreign affairs into foolish and unauthorized hands. On the other hand, it cuts into freedoms which we regard as having the highest value, and many of the situations in which its use has been suggested clearly involve no danger that would justify such a restraint.

To state the province and function of law in the control of war requires an understanding, in the broadest possible terms, of the nature of interstate conflict in the twentieth century. When such an understanding is reached, it will be seen that the traditional methodology of international law is inadequate for handling war-peace issues. While international lawyers should be faithful to the legal tradition of fact inquiry and judgment on the basis of legal norms, they should enlarge their perspective of international conflict and restructure their approach to the problem of war. The elaboration of this thesis is the subject of this note.

Since 1945 the number of nations possessing nuclear weapons has increased five times and stockpiles of nuclear weapons have increased thousands of times. The enormity of the build-up of capabilities for nuclear destruction has largely overshadowed the remarkable progress that has been made since 1945 in developing the peaceful applications of nuclear science. The take-off point for the economic use of nuclear fuels for generating electricity appears to have now been reached.

Where a state and an alien agree in a contract to arbitrate disputes relating to the contract, in terms which indicate that arbitration is to be the exclusive remedy, need the alien exhaust any other remedy before an international claim may be presented relating to a dispute which falls within the scope of the arbitration clause ?

The conclusion on July 7, 1965, of an Agreement between the independent sovereign states of Kuwait and Saudi Arabia in relation to the so-called Neutral Zone, of which exchange of instruments of ratification was effected on July 25 of this year, is a striking illustration of the ability of the Arab States to settle by free decision, unclouded by external influence, a unique and puzzling problem involving interests of great importance. It is an encouraging expression of the policy of common sense and good neighborliness, and raises interesting questions of international and domestic law.

Two international programs have developed recently permitting inspections, one by national teams and the other by international teams. Although the two programs concern arms control, they are, however, both limited in scope and applicability. The Antarctic Treaty of 1959 authorizes national teams to inspect any area in Antarctica to verify compliance with prohibitions in the treaty against military uses. Under the, Statute of the International Atomic Energy Agency (IAEA), arrangements have been adopted which authorize Agency teams to inspect the peaceful uses of nuclear materials and facilities to ensure that they are not being used to further any military purpose.

Modern science and technology have produced and will continue to produce new phenomena calling for new rules of law. Among these phenomena are the so-called “pirate” broadcasting stations, moored or installed outside territorial waters so as to escape the control of states. This new phenomenon has made its appearance in particular in Northwest Europe. It is natural, then, that states whose interests are actually or potentially adversely affected by such stations should contemplate what measures of protection are possible in fact and permissible in law.

Nearly three decades ago I published in this JOURNAL an article in which I tried to prove that even in international law there exist rules having the character of jus cogens; i.e., norms with which treaties must not conflict. Since my eminent colleague in the International Law Commission, Ambassador Tabibi, mentioned in a meeting of this Commission that the view expressed in my article “foreshadowed the solution” embodied in Article 37 of the Commission’s draft Convention on the Law of Treaties concerning the problem of jus cogens in international law, I feel obliged to defend this draft against the criticism directed against it by the eminent English lawyer, Professor Georg Schwarzenberger.

The Viet-Nam hostilities arose and have escalated because of the radically different perceptions of the situation by the principal parties. A settlement might be possible if each side understood the image perceived by the other. An analysis of the interpretation of the situation which would result from an impartial application of international law, presumably reflecting the consensus of world opinion, might also be helpful.