1 Declaration Concerning Certain Foreign Loans and Agreements Negotiated by the iRuomintang Government. (Feb. 1, 1947), cited in Steiner, , Mainsprings of Chinese Communist Foreign Policy , 44 AJIL 69, at 93 (1950)Google Scholar.

2 See Cohen, , Chinese Law and Sino-American Trade , in China Trade Pbospects and U.S. Policy 128–30, 141–43 (Eckstein, A. ed. 1971)Google Scholar. See generally, Lee, & McCobb, , United States Trade Embargo On China, 1949–1970: Legal Status and Future Prospects , 4 N.Y.U.J. Int’l. L. & Pol. 1 (1971)Google Scholar.

3 See note 13 infra.

4 Cohen, supra note 2, at 142.

5 Hearing on S. 3675 Before the Subcomm. on the Far East and the Pacific of the House Comm. on Foreign Affairs, 89th Cong., 2d Sess, 4 (1966) [hereinafter cited as China Hearing].

6 The Foreign Claims Settlement Commission [hereinafter cited either as the Commission or the FCSS] is the latest semipermanent national claims commission utilized by the U.S. Government to adjudicate claims of its nationals against foreign countries. The Commission was created by the President’s Reorganization Plan No. 1 of 1954, 68 Stat. 1279 (1954), 5 U.S.C. $1332 (1970), which abolished both the War Claims Commission and the International Claims Commission and assigned their functions to the Commission.

7 China Claims Act of 1966, 80 Stat. 1365 (1966), 22 U.S.C. §1643 (1970), amending, 78 Stat. 1110 (1964), 22 U.S.C. §1643 (1970).

8 Docket of the China Claims Program, on file at the Foreign Claims Settlement Commission of the United States, 1111 20th Street, N.W. Washington, D.C. 20579.

9 Prior to 1962, Congress had not authorized a claims program until some provision had been made for payment to the claimants. A new departure in claims practice, the preadjudication of claims before provision had been made for payment, is found in the Gut Dam Claims Act, Pub. L. No. 87–587, 76 Stat. 387 (1962). This Act provided for the determination of claims against Canada for certain property losses along Lake Ontario due to the construction of the St. Lawrence Seaway. After numerous claims had been decided but before the decisions had been released, the United States and Canada agreed on March 25, 1965 to suspend the program and to transfer it to an International Arbitral Tribunal to be later settled by a lump sum agreement. See Fcsc Seventeen Semiann. Rep. 7–10, 63–70 (1962); Lillich, , Gut Dam Claims Agreement With Canada , 59 AJIL 892 (1965)Google Scholar; Kerley, & Goodman, , The Gut Dam Claims—A Lump Sum Settlement Disposes of an Arbitrated Dispute , 10 Va. J. Int. L. 300 (1970)Google Scholar.

The Gut Dam Program served as a “dry run” for the Cuban Claims Program, the first completed preadjudication claims program, authorized by the Cuban Claims Act of 1964, 78 Stat. 1110 (1964), as amended, 80 Stat. 1365 (1966), 22 U.S.C. §1643 (1970). Thus the China Claims Program is only the third authorized and second completed preadjudication program in the history of U.S. claims practice. See Hearings Before the Subcomm. on Inter-American Affairs of the House Comm. on Foreign Affairs, 88th Cong., 2d Sess. 137–39 (1964) [hereinafter cited as Cuba Hearings]; Friedberg, , A New Technique in the Adjudication of International Claims , 10 Va. J. Int. L. 282 (1970)Google Scholar.

10 Cuban Claims Act of 1964, 78 Stat. 1110 (1964), as amended, 80 Stat. 1365 (1966), 22 U.S.C. §1643 (1970). When Congress amended Title V to authorize the China Claims Program, it made no substantive changes other than allowing for the determination of claims against the PRC arising since October 1, 1949. Thus the statutory standards were the same in both the Cuban and China Claims Programs.

11 6 4 Stat. 12 (1950) as amended, 22 U.S.C. §$1621–1643 (1970).

12 80 Stat 1365 (1966), 22 U.S.C. §1643b(a) (1970).

13 See note 9 supra. In both the Cuban and China Claims Programs certain funds were under control of the U.S. Government which might have been utilized to pay the claimants at least in part. The bill, H.R. 10327, 88th Cong., 2d Sess. (1964), which first proposed the Cuban Claims Program (Title V) to Congress contained provisions vesting the Cuban assets which were blocked in accordance with the Cuban Assets Control Regulations promulgated July 8, 1963, 31 C.F.R. Part 515 (1970). However, the Department of State opposed these provisions and they were dropped, resulting in a preadjudication program.

Similarly, in the China Claims Program Congress made no provision for the vesting of the assets blocked and frozen by the Foreign Assets Control Regulations, 31 C.F.R. §§500.101–500.809 (1970). These regulations were issued under authority of the Trading With the Enemy Act of 1917, 40 Stat. 411 (1917), as amended, 50 U.S.C. $§1–44 (1970). The basis for their issuance was the Korean Emergency declared by the President on December 16, 1950. Pres. Proc. No. 2914, 3 C.F.R. §99 (Comp. 1949–53). This emergency has not been lifted despite the recent entry of the PRC into the United Nations and President Nixon’s visit to the PRC. In excess of $70 million in assets were blocked and frozen, but the precise nature of the assets has not been publicly released. See N.Y. Times, Feb. 26, 1973, at 1, col. 8. Conversation with knowledgeable Department of State officers has revealed that there are private liens of approximately $16 million on the assets.

14 80 Stat. 1365 (1966), 22 U.S.C. $1643 (1970).

On October 1, 1950, the People’s Republic of China announced the unilateral repeal of all existing laws and all regulations effective under the Kuomintang Government “All laws, decrees and judicial systems of the Kuomintang reactionary government which oppress the people shall be abolished. Laws and decrees protecting the people shall be enacted and the people’s judicial system shall be established.” Article 17, the Common Programme of the Chinese People’s Political Consultative Conference, adopted September 29, 1949 in Peking. As a result of this article, “all the former texts were abrogated in mass.” Bonnichon, A., Law in Communist China, International Commission of Jurists, 4 (1955)Google Scholar. However, few laws have been formally replaced. Thus it is often difficult to determine the precise legal basis of acts of the Chinese Government. See Blaustein, , Fundamental Legal Documents of Communist China at x-xi (1962)Google Scholar.

15 80 Stat. 1365 (1966), 22 U.S.C. §164a(3) (1970).

16 See Lillich, , The Cuban Claims Act of 1964 , 51 A.B.A.J. 445, at 446 n. 20 (1965)Google Scholar. The statute also authorized a second class of claims directing the Commission to adjudicate: “Claims for disability or death of United States nationals arising out of violations of international law by the [PRC].” 80 Stat. 1365 (1966), 22 U.S.C. §1643 (1970). However, no claimants filed death or disability claims in the China Claims Program.

17 While the People’s Republic of China was first proclaimed in Peking on September 21, 1949, it was not until October 1 that it was formally inaugurated. General Chou En-lai was named Premier and Foreign Minister. china and U.S. Far East Policy 1945–1966, at 47 (Congressional Quarterly Service 1967).

18 China Hearing, supra note 5, at 7. As late as August 1949 many foreign businessmen in Tientsin were optimistic about their ability to carry on business almost “as usual.” Bodde, D., Peking Diary 1948–1949, at 253–54 (1950)Google Scholar. Their optimism, of course, proved unfounded.

19 See Claim of Edwin W. Kilbourne, Claim No. CN-0103 (October 14, 1969). The Commission therein recited that the claimants had to evacuate “Peiping” and ‘leave behind at their home all property except what could be taken in small suitcases aboard the plane that evacuated them.” Throughout the China Claims Program the Commission used the Kuomintang term “Peiping” rather than the Communist term “Peking.”

20 Claim No. CN-0114 (April 24, 1970).

21 See notes 35 and 61 infra.

22 In almost every decision where an award was certified, the Commission discussed this problem of proof and concluded that “when claimants have established a sufficient basis for the inavailability of primary evidence, the Commission may accept and consider secondary evidence.” Claim of Clarence Burton Day, et al., Claim No. CN-0030 (Oct. 15, 1968). 1968 Fcsc ANN. REP. 86. This claim involved the first award for personal property in the China Claims Program (Decision No. CN-1).

23 Claim of Clarence Burton Day, et al, note 22 supra.

24 Claim of Esso Standard Eastern, Inc., Claim No. CN-0288 (Feb. 11, 1971) (book value accepted).

25 See, e.g., Claim of John H. Lewis, et al, Claim No. CN-0092–93 (Sept. 24, 1969). (Record of Previous War Claims Proceeding).

26 Claim of Franklin Russell Fette, Claim No. CN-0336 (May 27, 1970).

27 Note 23 supra (household furnishings).

28 Claim of Arthur B. Coole, et al, Claim No. CN-0040 (Oct 14, 1969). This claim for the loss of a beach house at Peitaiho Beach, Hopei Province was the first award for real property in the China Claims Program (Decision No. CN-2).

29 Claim of Shanghai Power Company, Claim No. CN-0280 (Aug. 20, 1970).

30 Claim of Esso Standard Eastern, Inc., note 24 supra.

31 Claim of United Board for Christian Higher Education in Asia, Claim No. CN-0401 (Aug. 20, 1970).

32 Claim of China Medical Board of New York, Inc., Claim No. CN-0415 (June 30, 1970).

33 Claim of First National City Bank, Claim No. CN-0440 (June 30, 1970).

34 See, e.g., Claim of International Telephone and Telegraph Corp., Claim No. 0285 (June 17, 1970) (Telephone network and accounts receivable).

35 Claim of Alfred Stephen Rossi, Claim No. CN-0114 (Apr. 24, 1970) (emphasis in the original).

36 Id. This claim is one of the few Cuban decisions which the Commission cites in support of the standards applied in the China program. Because the Cuban and China standards are the same, the procedures utilized in the prior Cuban program actually had much greater sub rosa influence than is revealed in the China Claims Program decisions. See note 10 supra.

37 See Restatement (Second) Fobeign Relations Law of the United States §5158, 161 (1965).

38 78 Stat. 1111 (1964), as amended, 22, U.S.C. U643C (1970). Claims for disability or death also are required to have resulted from injuries to persons who were U.S. nationals. 78 Stat. 1111 (1964), as amended, 22 U.S.C. §1643(b) (1970). See note 16 supra.

39 78 Stat. 1111 (1964), as amended, 22 U.S.C. §1643A(1) (1970).

40 Id.

41 Id.

42 Claim No. CN-0497–0501, 0503 (June 30, 1970).

43 78 Stat 1111 (1964), as amended, 22 U.S.C. §1643D(a) (1970).

44 78 Stat. 1111 (1964), as amended, 22 U.S.C. §1643D(b) (1970).

45 78 Stat. 1111 (1964), as amended, 22 U.S.C. §1643D(c).

46 80 Stat. 1365 (1966), 22 U.S.C. §1643B(a) (1970).

47 See Lillich, , The Valuation of Nationalized Property by the Foreign Claims Settlement Commission , in The Valuation of Nationalized Property in International Law 95, 97 (Lillich, R. ed. & contrib. 1972)Google Scholar. See also Friedberg and Lockwood, Jr., The Measure of Damages in Claims Against Cuba, in id., at 117.

48 H.R. 10327, 88th Cong., 2d Sess. (1964). These changes and others, including the deletion of die vesting provisions, were incorporated in the final bill reported out of Committee H.R. 12259, 88th Cong., 2d Sess. (1964). See note 13 supra.

49 Cuba Hearings, supra note 9, at 53 [Statement of Cecil J. Olmstead].

50 See Lillich, supra note 47, at 97–99.

51 Cuba Hearings, supra note 9, at 138–39 (emphasis added) [Statement of Robert E. Lee].

52 78 Stat. 1112 (1964), as amended, 22 U.S.C. §1643f(a) (1970).

53 Despite the statutory standard, in general, the decisions are documents which reveal little more than the claimant’s name, nationality, the property taken and its location, and a recitation of its “considered” value. It is estimated that 80% of the Commission’s decisions, falling into perhaps four variations, were reported in so similar a fashion that it is possible to read the first and last paragraphs without missing any new substantive conclusions. In fact, of the five pages of an average certification or denial at least half is identical with any other decision. There is no doubt that this nation of lawyers could have more fully and individually reported each decision. The use of this standard form only minimally complies with the statutory directive.

54 An analysis of the Commission’s decisions certified as valid to the Secretary of State reveals that of the $196,861,834 of finally certified awards, over 90 per centum of the total value came from awards of over $100,000. Of the 18 awards of one million dollars or more, which in total amounted to $165,566,730.66, ten awards were to corporations, while the remaining eight were to nonprofit missionary, educational, and medical organizations. Only the certifications of less than $100,000.00 show a majority of individual claimants.

55 See Claim of The Christian and Missionary Alliance, Claim No. CN-0352 (Aug. 20, 1970).

56 See note 22 supra.

57 The Commission “has considered the purchase price of the properties and the values of comparable mission properties in other claims of non-profit organizations in the China program,” Claim of the Christian and Missionary Alliance, Claim No. CN-0352 (Aug. 20, 1970); “In over some fifty claims which the Commission has considered in this city [Tsingtao], it has found the properties to have been in good condition, modernly improved and of substantial values.” Claim of George Yousieff, et al, Claim No. CN-0413, 0417–0418 (April 21, 1970).

58 In the Claim of United Board for Christian Higher Education in Asia, Claim No. CN-0401 (Aug. 20, 1970), the Commission explained the certification of $1,420,000 more than the amount asserted with the following language:

However, in determining the amount of loss sustained, the Commission is not bound by any lesser or greater amounts which may be asserted by claimants as the extent thereof.

59 See Claim of Solomon Tukachinsky, Claim No. CN-0370 (June 10, 1970).

60 Cuba Hearings, supra note 9, at 18.

61 See Claim of Sandovitch Bros., Inc., Claim No. CN-0515 (July 14, 1970), where the Commission notes the exchange rate in November 1951, at 32,400 yuan for one U.S. dollar. On June 30, 1951, the exchange rate was 23,000 per one U.S. dollar. Claim of Ann Ellis, et al, Claim No. CN-0554 (July 10, 1970).

62 Claim No. CN-494–0501, 0502 (June 30, 1970).

63 Claim of American Express International Banking Corporation, Claim No. CN-0340 (Aug. 20, 1970).

64 For precedent purposes, the earlier Cuban decision is the Claim of American Cast Iron Pipe Company, Claim No. CU-0249, Decision No. CU-13, where the applicability of interest to awards certified under Title V is fully considered. Cited at FCSC, Twenty-Fifth Semiann. Rep. 49 (July-Dec. 1966).

65 This language is the standard phraseology used in all claims where losses were certified to the Secretary of State.

66 See Claim of John H. Lewis, et al., Claim No. CN-0092–0093 (Sept. 24, 1969).

67 See N.Y. Times, Feb. 26, 1973, at 1, col. 8.

68 See Restatement (Second) Foreign Relations Law of the United States §§185–190 (1965).

69 See Chiu, , The Nature of International Law and the Problem of a Universal System , in Law in Chinese Foreign Policy: Communist China & Selected Problems of International Law 1–19 (Leng, S. & Chiu, H. eds. & contribs. 1972)Google Scholar.

70 See Lee, L., China and International Agreements 119 (1969)Google Scholar.

71 See note 1 supra.

72 See, e.g., Cohen, , Chinese Attitudes Toward International Law—And Our Own , in Contemporary Chinese Law: Research Problems and Perspectives 282 (Cohen, J. ed. & contrib. 1970)Google Scholar; China’s, Practice of International Law: Some Case Studies (Cohen, J. ed. & contrib. 1972)Google Scholar.

73 See, e.g., Claim of American Express International Banking Corporation, Claim No. CN-0340 (June 30, 1970) wherein a claim for $66,624.00 as payment for the release of the Assistant Manager in charge of the claimant’s Shanghai office was allowed. The Assistant Manager remained in China for five years before refunds were paid and his exist visa was granted.

74 Agreemet with Poland, July 16, 1960, TIAS No. 4545; Rode, , The American-Polish Claims Agreement of 1960 , 55 AJIL 452 (1961)Google Scholar.

75 See N.Y. Times, March 7, 1973, at 14, col. 1.

76 See, e.g., Agreement with the Federal People’s Republic of Yugoslavia Regarding Pecuniary Claims of United States and Its Nationals, July 19, 1948, 62 Stat. 2658 (1948), TIAS No. 1803. See Clay, , Aspects of Settling Claims Under the Yugoslav Claims Agreement of 1948 , 43 Geo. L.J. 582 (1955)Google Scholar. A lump sum of $5,000,000 was made available for the settlement of certain Italian claims under the so-called Lombardo Agreement with Italy, Aug. 14, 1947, 61 Stat. 3692 (1947), TIAS No. 1757. Moreover, funds were made available for certain claims against the Soviet Union by the Litvinov Assignment of Nov. 16, 1933; See Fcsc, , Decisions and Annotations 755 (1968)Google Scholar.

77 See also Convention with Panama, Jan. 26, 1950, 1 UST & OIA 685, TIAS No. 2129 (67). See generally Appendices to Fcsc, , Decisions and Annotations (1968)Google Scholar.

78 See note 76 supra. See also Bishop, D., The Roosevelt-Litvinov Agreements, The American View (1965)Google Scholar.

79 See note 54 supra.

80 Weston, B., International Claims: Postwar French Practice (1971)Google Scholar.