1. See Draft Code of Offences Against the Peace and Security of Mankind, as adopted by the International Law Commission, Y.B. Int'L. Comm'n vol. II, 1954. Art. 1 characterizes such offences as “crimes under international law, for which the responsible individuals shall be punished.“ Art 2 lists 13 acts as offences against the peace and security of mankind. Cf. the Fifth Report by Minister Ooudou Thiam on the Draft Code of Offences against the Peace and Security of Mankind (Mar. 17, 1987).

2. The expression ‘dignity of man’ is used in connection with violation of human rights as well as offences against mankind. Art. 2(11) of the Draft Code lists “inhuman acts such as murder, extermination, enslavement, deportation or persecution“ as offences against the peace and security of mankind.

3. A common trait seems to run through the Axis, each believing in the purity of its population, the Fascists thought nothing when slaughtering Abyssinians with bullets prohibited by the Hague Laws of War, or the Nazis when putting children into gas chambers or incinerators, or the Japanese militarists when torturing helpless victims to death.

4. The Nazis' belief in the purity of the German race, the fascists’ lack of consideration for Africans as their equals in the definition of mankind, and the Japanese co-prosperity sphere as a guise for domination in the Asian region were all without scientific or factual foundation in statistics.

5. All races are bom practically equal, although scholastic aptitude may prove the preeminence of one ethnic group over another, not necessarily based on the colour of their skins or the shade of their political coloration, but rather because of their determination and enduring devotion to hard work, and the competitive environment in which they were bom and bred.

6. Every war is terminated and followed by a period of relative peace. Even the hundred years' war did not last beyond one century. It is more accurate to conceive of peace with intermittent interruption by war or for want of better terminology, ‘armed conflict’.

7. War has been technically banned as an institution. Indeed, the use of force or threat of force is no longer tolerated under current international law. See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v, U.S.), 1984 I.CJ. Rep.

8. The practice of apartheid as an extreme manifestation of racism can still be found today in the southern tip of the African continent, although isolated and condemned by the United Nations.

9. Writings in these languages testify to the authenticity of the finding.

10. ‘Gang of Four’ is an expression used by the Chinese to refer to the four members of the CCP-Jiang Qing (Mao Zedong's wife), Zhang Chungiao, Yao Wenyuan and Wang Hongwen, all holding key posts in the Chinese government Representing the extreme leftist line, they were arrested in October 1976, following a coup d'état by a group of moderates, thus bringing an end to ten years of the ‘Great Proletarian Cultural Revolution’ (1966–1976). The moderate line was carried out by premier Zhou Enlai and the current leader Deng Xiaoping, both having been scholars in France. See infra § IV(3).

11. ‘The Big Leap Forward’ was a campaign designed to promote small-scale home industry, such as local steel mills, manufacturing of pots and pans as well as heavy equipment It was in vogue in 1957 and 1958 but did not yield any tangible process in industrial development

12. This was probably a lure to explore possible revisionist tendencies, an effort to weed out reactionaries and dissidents. See infra § IV(2).

13. ‘Contradictions’, according to the Party line at the time, 1957–1958, were to be encouraged if confined within limits. On the other hand, ‘contradictions’ which were out of line would be suppressed, and rectified or eradicated.

14. Thus, Snyder describes the situation sadly, “China for all practical purposes has lost an entire generation of trained legal workers, theorists and educators“. Shanghai, A Case on Appeal, 66 A.B.AJ. 1536, 1539 (1980).

15. See, e.g., Gelatt & Snyder, Legal Education in China: Training for a New Era, 7 China L. Rep. 41, 58 (1980). “Draft laws were filed away, law journals shut down their presses, and restriction of legal education, already sapped of their former vitality, had begun to breathe their last dying gasps“.

16. See, e.g., Dean Roscoe Pound, Comparative Law and History as Bases for Chinese law, 61 Harv. L. Rev. 749 (1948).

17. It is almost proverbial in Chinese, as in other Asian parlance, that litigation is far more damaging and costly than robbery and arson. Statistics tend to show stronger trends in favour of out-of-court settlements or court-induced compromise than contentious litigation.

18. Even nowadays, it would still be difficult to distinguish between the effects of a ‘law’ and a ‘policy or directive’. See, in this connection, a paper Law-making in The People's Republic of China: Terms, Hierarchy, and Interpretation, by Tao-tai Hsia and Constance Axinn Johnson, Library of Congress, Washington D.C., 1986, especially Appendix, at 33–35, listing 40 variations of what may be regarded as legal norms.

19. The only purpose of the adventure was to discover the silk trail to China with an end to expand the wealth rather than the dominion of the Italian republics in distant lands.

20. The Opium War would have been considered in a very different light today when the so-called civilized West finally accepted the validity of the Chinese argument against the traffic of narcotics and the universal enforcement of drug control.

21. The Treaty of Nanking (1842) was the direct consequence of the use of gunboat diplomacy against China, See, e.g., G.W. Gong, The Standard of ‘Civilization’ in International Society 136–138 (1986). The treaty cost China $21 million in indemnity, abolition of the monopolistic Cohong trading system, opening of five ports for trade, cession of Hong Kong, and fixed tariff.

22. E Vattel, The Law of Nations (le droit des gens), (Carnegie Endownment, 1758); See also Gong, id., at 152–157. In 1862, W.A.P. Martin, another American missionary began translating Wheaton's Elements of International Law (published in 1836) in the hope the translation “might bring this atheistic government to the recognition of God and His Eternal Justice; and perhaps impan to them something of the spirit of Christianity“. Cohen & Chiu, People's China and International Law 127 (vol. 1); See also Wright, The Last Standard of Chinese Conservation 237–238. Three hundred copies of the translation of Martin were distributed in 1864 to the provinces for the use by local Chinese officials.

23. Id., Possibly Vattel was considering the possibility and prospect of State Responsibility.

24. See Gong, supra note 21, at 153.

25. It was not until Oct. 10 (double ten) in 1942 after the attack on Pearl Harbour that the British decision to abolish extraterritorial regime in China was published.

26. In the 19th. century, the prevailing rule of international law had not restrained states in the enforcement of diplomatic protection of their subjects in Asia.

27. The Opium War of 1839 provides a classic example of European collective actions against China's objection to the import of opium from British India.

28. Commissioner Iin's detention of the foreign community at Canton and the destruction of 20,000 chests of opium provided a pretext for the use of force by the UK. The Nanking Treaty (1842) was followed by the Treaty of Bogue (1843), Treaty of Whanghia (1844) and the Treaty of Whampao (1844), which formed the basis for unified Western relations with China.

29. The cease fire followed by the Treaty of Nanking 1842 confirmed the proposition that might was right or that the party with superior fire power prevailed.

30. See the ‘Briand-Kellog Pact’ or General Treaty for the Renunciation of War (Pact of Paris, Aug. 27, 1928) which was binding on 13 nations, including Germany, Italy and Japan at the outbreak of war in 1939. See also Woetzel, The Nuremberg Trials in International Law, (1960); See Charter of the UN.

31. See the Judgment of the I.CJ. in Nicaragua v. U.S. (1984).

32. See Sun Yat-Sen, The Three Principles of the People (San Min Chu I), trans, by Frank W. Price; See also Chin, Chinese Views of Unequal Treaties 224. Unlike Siam and Japan, China did not sign the Treaty of Versailles in 1919, being disenchanted by Japan's secret negotiations resulting in Germany's cession of former holdings to Japan. China appealed to the Permanent Court of Justice for revision of unequal treaties with Belgium. However, the court did not have the chance to rule on the case as the two countries concluded a new treaty. Nozari, Unequal Treaties in International Law 112.

33. See, e.g., the GA. Res. 1514 calling for decolonization of all dependent territories and peoples and Res. 2625 initiating principles of friendly relations and cooperation among states.

34. Thus, Waldock in 106 Hague Recueil 54 (1962–11) stated: “… we are quite safe in construing the general principles of law recognized by civilized nations“ as meaning today simply the general principles recognized in the legal systems of independent states. See Bin Cheng, General Principles of Law Applied by International Courts and Tribunals (1953).

35. Western Bills of Rights often refer to rights of man but in practice the rights are reserved for nationals only.

36. See, e.g., M.T. Moser, Foreign Trade, Investment and the Law in the People's Republic of China 1- 5 (1984).

37. Japan was able to remove the extraterritorial rights of westerners as early as 1911, following the Russo-Japanese War of 1904.

38. See, e.g., Ssu-yu Teng, Chang Hsi and the Treaty of Nanking 1842, Chicago, (1914).

39. Judge Koo was the legendary Chinaman who used the expression “Like-y Speechy ?“ to the lady dining next to him at a banquet in reply to her earlier remark “like-y soup-y ?“.

40. See, e.g., Judge Koo's dissenting opinion in regard to the need for Siam to react against France's aggression on paper by publication of a map with inaccurate boundary line showing the Temple of Phra Viham to be outside Siam. In the Temple of Phreah Vihear Case, Judgment of 15 June 1962, 1962 LCJ. Rep. 6 at 75–99.

41. Dr. Yuen-Li Liang has made substantial contribution to the writings on international law, expecially in the form of legal notes in the American Journal of International Law, e.g., vol. 44 (1950), at 100, 117, 333, 342, 694.

42. U.N. Doc. A/CN.4/1 (1948) (Sales No. 48 V.I) reissued in 1949 as Doc. A/CN.4/1 (1949) (Sales No. V.1 (1)).

43. These topics were considered ripe for codification. One of them, “Succession of States and Governments“ has been divided into three parts.

44. See the Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf. 39127 (1969); repr. in 8 I.L.M. 679 (1969) (entered into force Jan. 27, 1980).

45. Id. Art. 53, Treaties conflicting with a peremptory norm of general international law (jus cogens); Art 62, Fundamental Change of Circumstances.

46. Dr. Chen Ti-Chiang, bom 1917, was a graduate of Qing Hua (Tsihg Hua University, 1939) and a D. Phil. (Oxford, 1948). His thesis: International Law of Recognition was published by Stevens & Sons, London in 1951.

47. Lauterpacht, Recognition in International Law (Cambridge, 1947). See, however, the Stimson Doctrine of Non-Recognition in I Hackworth's Digest of International Law at 334 el seq..

48. Dr. Chen became Associate Professor, later Professor, Qing Hua University 1948–1952; Beijing University 1979, College of Foreign Affairs 1981, and Legal Adviser, 1982 before he passed away in 1983. He was also Vice-President of the Chinese Society of International Law 1979, and Chinese Representative to the Sixth Committee (1979); co-editor-in-chief of Chinese Yearbook of International Law.

49. Judge Ni Zhengyu and Dr. Li Haopei also had to learn and to teach Russian.

50. See, e.g., HenJan etc., International Law, Cases and Materials 243 (2d ed. 1980).

51. Pancha Sila from Sanskrit and Pali means ‘five stones or pillars’. This does not reflect the Buddhist Pancha Seela meaning ‘five precepts’ in Buddha's teachings to be observed by upasaka or lay-Buddhist

52. ‘Peaceful coexistence’ has been given several contrasting meanings by other socialist countries, e.g., the USSR under Krushev.

53. G.A. Res. 1514(XV), 15 U.N. GAOR Supp. (No. 16) at 66, U.N. Doc. A/4684 (1961).

54. G.A. Res. 2625(XXV), 25 U.N. GAOR Supp. (No. 28), U.N. Doc. A/8028 (1971), repr. in 9 LL.M. 1292 (1970).

55. For legal education in China, see generally a comprehensive survey by Han Depei and Steven Kanter in: 32 AJ. Comp. L. at 543–582 (1983–1984).

56. Id. at 545–567.

57. Id. at 545–559.

58. See McDonald, Legal Education in China Today, 6 Dalhousie LJ.H. 313, 322 (1980); Gelatt, The People's Republic of China and the Presumptions of Innocence, 72 J. Crim. L. 259, 308 (1982).Google Scholar

59. See Kato, Civil and Economic Law in the People's Republic of China, 30 Am. J. Comp. L. 429, at 434–35 (1982). Two basic statutory collections were published, the fiist included enactments from Sept 1949 through Sept. 1954 when the first constitution was promulgated; the second covered Sept 1954 through Dec. 1963. After 1963, publication of legal compilations was interrrupted, a political casualty in China.Google Scholar

60. See Depei, & Kanter, supra note 55, at 549–552.Google Scholar

61. Id. at 551–552.

62. Socialist theory of law did not make much headway in the classrooms. It was estimated that with the introduction of the field work model, 70% of all China's lawyers disappeared. Id. at 552, note 13.

63. Id. at 552–54.

64. Samsara Wat is the Pali Buddhist term meaning the unending cycle or circle of life and death, starting with birth, age, sickness and death, and back again to birth.

65. See General Assembly Official Records of the 26th session, 1971, the Nationalist Chinese Delegation walked out of the General Assembly before the final vote was taken.

66. See Grenville, J.A.S. & Wasserstein, B. The Major International Treaties since 1945, at 303 (1987), see also the joint Communiqué of 15 Dec. 1978 and infra note 70.Google Scholar

67. Id. at 303–305.

68. Id. at 306, Art 2.

69. Id. at 307–316. See Grenville, J.A.S. & Wasserstein, B., The Major International Treaties since 1945, at 303 (1987), see also the joint Communique’ of Dec. 15, 1978 and infra note 70.Google Scholar

70. See also Joint US-China Communique of Feb. 22, 1973 and an agreement concluded on Dec. 15, 1978 to reestablish diplomatic relations.

71. It would not be practical to give an extensive list of all the bilateral treaties and agreements concluded by China since the adoption of a new policy opening wider doors to foreign trade and relations. Among these should be mentioned: China-US: Agreement on the Avoidance of Double Taxation and the Prevention of Tax Evasion on Income, repr. in 23 I.L.M. 10–11 (1983). China-US: Agreement for Cooperation Concerning Peaceful Uses of Nuclear Energy, repr. in 24 LL.M. 1393–1407 (1985). China-Japan: Agreement for the Avoidance of Double Taxation, etc., repr. in 23 I.L.M. 120–143 (1984). China-US: Accord on Industrial and Technical Cooperation, repr. in 23 I.L.M. 144–147 (1984) China-US: Agreements (transcript) 80 Dept of State Bull. 1–24 (Nov. 1980). China-USSR: Agreement on Economic and Technical Cooperation in Construction and Conversion of Industrial Installations in China, repr. in 25 I.L.M. 379 (1986). Argentina-China: Agreement on Economic Cooperation, repr. in 25 I.L.M. 358–362 (1986). Argentina-China: Agreement on line of Credit, repr. in 25 I.L.M. 363 (1986).

72. Constitution of the People's Republic of China, Dec. 4, 1982, 9 Review of Socialist Law 183–208 (1983), 25; 52 Beijing Review 10–29 (1982). For comments on the 1975 and 1978 constitutions, see Cohen, China's Changing Constitution, 7 Nw. J. Int'l. L. & Bus. 57, 64–67, 75–86 (1979).

73. Promulgated on Dec. 13, 1981, repr. in 22 I.L.M. 330 (1983).

74. Adopted at the 10th session of the Standing Committee of the Sixth National People's Congress on March 21, 1985, effective July 1, 1985, East-Asian Exec. Reports, May 1985; Repr. in 24 IJLM. 797 (1985). See also Regulation on Controlling Technology Import Contracts, repr. in 24 I.L.M. 801 (1985).

75. See The Law on Joint Ventures Using Chinese and Foreign Investment, adopted at the Second Session of the Fifth National People's Congress on July 1 1979; for English translation, see Chu (eds), Commercial, Business and Trade Laws: People's Republic of China, pt.9, at 3 (Dobbs Ferry, Oceana Publication Inc. 1982). The Implementing Act was promulgated by the State Council on 20 Sept. 1983, repr. in 22 I.L.M. 1049 (1983).

76. Regulations of the People's Republic of China on Special Economic Zones (SEZ) in Guangdong Province, effective August 26, 1980. As of August 1980, four SEZs have been officially established nationwide, in Chenzhen, Zhuhai, and Shantou. See Investor's Handbook: Xiamen Special Economic Zone of Fujian Province (1983). For the Guangdong SEZ, see Michael, J. Moser, Foreign Trade, Investment and the Law of the People's Republic of China, ch. 5, at 143–178 (1984).Google Scholar

77. G.A. Res. 3281 (xxix), 29 U.N. GAOR, Supp. (No. 31) at 50, U.N. Doc. A/9631 (1975), repr. in 14 I.L.M. 751 (1975). See also Declaration on the Establisment of a New International Econimic Order, 1975, G.A. Res. 3201 (S.vi), 6 (Special) U.N. GAOR, Supp. (No. 1) at 3, U.N. Doc. A/9559 (1944), repr. in 13 I.L.M. 715 (1974)

78. For an official curriculum vitae of Judge Ni Zhengyu, see U.N. Doc. A/39/358, S/16681 (Oct. 3 1984) at 27–29. He was bom on July 28, 1906 in Ziangsu Province, China; a graduate of Chitz University in Shanghai, 1927, and Suzhou (or Soochow) Law School, 1928, Judge Ni also received Juris Doctor from Stanford University, 1929 and was designated Honorary Scholar by the Institute for the Study of Law, John Hopkins University 1930–1931. Judge Ni has taught law in various Chinese universities, published extensively and held high legal professional offices in China.

79. Commissioner Ni was helpful to the drafting committee and the planning committee of the Commission (1982–1984). Earlier Judge Ni was a member of the Prosecution Section, International Military Tribunal for the Far East, Tokyo (1946–1948). He was legal counsel to the Chinese delegation to the UN General Assembly (1972), and the Sea Bed Committee (1972–1973), and LOS Conference Dl in Caracas 1974, Geneve 1978, New York and Geneva 1977 and 1981, and New York (1982).

80. Ambassador Huang Jiahua was then Deputy Permanent Representative to the UN. On the I.L.C. he was succeeded by Mr. Shi Jiuyong.

81. Contemporary Chinese scholars in international law include Li Hao-Pei (1906) and Wang Tieya (1913). Dr. Li Hao-Pei, bom in Shanghai on 6 July 1906, was LL.B. graduate of Souchow University Law School (1928), LL.M. (1930), and a doctorate from the London School of Economics in 1939. Actually a classmate of Judge Ni, Dr. Hao-Pei was also a law teacher and a legal adviser to the Ministry of Foreign Affairs. He has published textbooks in Chinese both in private and public international law, as well as comparative law. As a Polyglot, he translated Verdross: Volkerrecht from German to Chinese; Wolf from English to Chinese; Code Civil Francais from French to Chinese; Material Truth in Soviet Law of Evidence from French to Chinese; Material Truth in Soviet Law of Evidence from Russian to Chinese; and Strafgesetzbuch der Deutschen Demokratischen Republik from German to Chinese. Professor Wang Tieya, bom in Zhareh, 1913, is Professor of International Law at Beijing University, Institute of International Law, and author of the standard textbook in Chinese on International Law. Guojifa (eds. Wang Tieya and Wei Min, Beijing, Law Press, 1981), also Zhonggero Dabeike Quanshu Faxue (the Great Encyclopedia of China, Law) 189, China Press, (1984).

82. The outstanding increase in quality and quantity of China's active participation reflects the undying spirit of Chinese legal scholarship. Within a few years of China's retum to the United Nations, China has been able to fulfill all her functions in the international community, not only in the context of the United Nations and its specialized agencies but also in regional organizations, as well as commodities Wments in every imaginable domain, be it IhW. FAO. UNESCO, ILO, UNCTAD, GATT. National Rubber Agreement or Textile and Multi-Wber Agreement, Holsely, “Re Regulation of China's Foreign Trade”, in Moser cited in note 34, Rubber Agreement, Geneva, March 20. 1987, Senare Treaty Doc. 10G9, signed by China Dec. 1, 1987, ratified Jan. 6, 1988.