Chen Tiqiang [陈体强] (1917–83) was an influential scholar of international law whose career in many ways reflects the vicissitudes of his profession in twentieth-century China. [1] After graduating from Tsinghua University in 1939, Chen pursued doctoral studies at Oxford between 1945 and 1948, earning a DPhil in international law under J. L. Brierly. He returned to China in 1948 to take up a teaching position at his alma mater, while his dissertation became the basis for an English-language monograph entitled The International Law of Recognition and published in 1951 [2], which continues to be widely cited in international legal scholarship.
After the People’s Republic of China was founded in 1949, Chen participated in multiple academic associations focusing on diplomacy and international law, and was involved in legal writing and research in projects affiliated with the Chinese Academy of Social Sciences, the Ministry of Foreign Affairs, and the Chinese People’s Institute of Foreign Affairs. During this period he also provided commentary on a range of international and domestic legal issues concerning the newly-founded government’s pursuit of Soviet-style legal development.
From 1957, however, he was–like other leading international law specialists–labelled a “rightist” and targeted in the Anti-Rightist Campaign, rendering him unable to participate officially in academic or diplomatic endeavours. Nonetheless, even during this period of political pressure, he worked alongside fellow international lawyers Wang Tieya (1913–2003), Wang Shaofang, and Tian Baosheng to produce China’s first textbook on the law of the sea, translated from Pearce Higgins and John Colombos’ The International Law of the Sea. [3] As the four could not engage in public legal scholarship, they had this important work published under the pseudonym “Wang Qiangsheng” (combining one character from each of their names). [4]
Chen and his colleagues experienced similar difficulties during the Cultural Revolution, although again he was able to continue contributing to international legal scholarship by working together with Wang Tieya to produce a translation of the eighth edition of Lassa Oppenheim’s International Law into Chinese. This newly translated version was published in four volumes between 1971 and 1973 and several subsequent editions, and was intended to aid in “strengthening our understanding of, research into, and critique of Western international law”. [5] He then spent the last years of his life contributing considerably to the revival of Chinese international law studies in the early Reform Era, publishing commentaries on legal issues in his capacity as a vice-president of the Chinese Society of International Law that was founded in 1980, co-founding the Chinese Yearbook of International Law in 1982, once again alongside Wang Tieya, and publishing other works in Chinese and English intended to bring China’s views on international legal issues into conversation with those of other states. [6]
In this article from 1950, translated for the first time into English, Chen analyzes the process by which the Truman administration led the United Nations to intervene in the Korean peninsula. As the first use of force to claim authorization by the UN Security Council pursuant to its powers under Chapter VII of the UN Charter, the Korean episode marked the breakdown of the idea that, in the post-Second World War order, decisions on military intervention would be undertaken on a multilateral basis. Under Article 2(4) of the Charter, only the Security Council is able to authorize the use of force to deal with a situation threatening international peace and security. (As Chen argues below, it is thus highly doubtful that civil war is a valid basis for intervention.)
However, because the Soviet Union was boycotting the Security Council over other members’ refusals to recognize the People’s Republic of China as the lawful representative of the Chinese state, the United States was able to procure two resolutions, on 25 June and 27 June respectively, that it interpreted as authorizing war on North Korea. As noted by some other lawyers of the time, including Hans Kelsen, this view relied on a strained interpretation of the Charter, and, with regard to US actions between the two resolutions, ex post justification of military decisions made on a unilateral basis.
The Truman administration’s decision to go to war was also part of a pattern of US intervention that had long been established in its own hemisphere, to then be spread globally. In drawing connections between this history and the collapse of the Charter restrictions in 1950, Chen offers several interesting insights. He writes that “[f]rom the mid-19th century, the US has used the protective amulet of the Monroe Doctrine to achieve a monopoly on intervention in the Americas”, and later observes that “this system of interference was promulgated to cover other parts of the world”. Chen’s essay provides a glimpse into views on international law from a People’s Republic of China that was still establishing its identity as a socialist state while fighting for diplomatic recognition, and that had not yet descended into its own chaotic internal struggles. It represents, in other words, one view of the contingent future of the international legal system as it appeared at a certain moment in time, just as the geopolitics of hegemony was foreclosing practical consensus on the legal restrictions of war.
***
Who Is Undermining International Law? [7]
Chen Tiqiang, World Knowledge [Shijie Zhishi 世界知识], vol. 8, p. 7 (1950)
Over the past few months, it seems the imperialists of the United States and United Kingdom have been provided an opportunity to see the light: they’ve received quite a few lessons on international law. Soviet Vice-Minister of Foreign Affairs Andrei Gromyko in his July 4th statement has given the US-UK coalition guidance as to what constitutes “interference in internal affairs”, as well as pointing out the inevitable outcome for those who do interfere. [8] The Soviet delegate to the UN Security Council meeting on August 3rd, Yakov Malik, then gave a thorough exposition regarding the definition of the term “aggressor”. [9] Finally, on August 6th, the Soviet Izvestia newspaper published a commentary under the title “Ignorance in Questions of International Law” [10], explaining to the “ignorant” US-UK group some basic introductory-level principles of international law.
Since the end of the Second World War, imperialism has found itself more and more on a dead-end path, and the foreign policy activities of the imperialists have developed from fraud to outright armed robbery. The only legal principle they follow is the law of the African jungle: eat or be eaten, might is right. Against this background, Soviet diplomats and newspapers rationally, uprightly, and powerfully making their criticisms has completely torn away the imperialists’ “gentleman’s mask” of false benevolence, revealing the vicious outlaw visage that lies beneath. This allows the people of the world, especially the people of the imperialists’ own countries, to clearly tell right from wrong; this explicit distinguishing of black from white obviously has major significance.
Firstly, this reveals to the people of the imperialist US and UK just what kind of unprincipled acts of collusion are being committed on the orders of the monopoly capitalists. As we know, modern international law took shape during the process of the rise of the centralized state, while a part of it goes back further with origins in feudal society. Nonetheless, some of its principles not only had progressive value during those eras, but even today in modern international relations, if they were to be supplemented at the essential level with elements of New Democracy [11], they would not lose their character as useful legal principles for international relations. These kinds of progressive legal principles still inspire faith in the hearts of most of the world’s peoples. If one uses these kinds of legal principles as the criterion for exposing the illegal behavior of imperialist governments, the upright and honest opinion within their countries can lift its head, and the people can better distinguish the fraudulent character of their governments, moving closer to renouncing them. Thus for the Soviet Union to earnestly and tirelessly explain international legal issues is not intended as an attempt to influence those die-hard imperialists, making them repent the error of their ways, as that is impossible. Rather, it’s an attempt to speak directly to their popular masses, causing them to no longer be deceived by reactionaries.
Further, the imperialists have sought to slander the Soviet Union ever since it was established, stubbornly insisting that the Soviet Union has violated and disregarded all principles of international law, or has refused to carry out its international obligations. They use these forms of propaganda to frighten weaker countries and their own people. In August 1920 the Italian government inquired of the United States as to its view on the Soviet Union, and the US Secretary of State Bainbridge Colby responded that “the existing regime in Russia is based upon the negation of every principle of honour and good faith, and every usage and convention, underlying the whole structure of international law”. [12] The basic principles of international law referred to by the imperialists are really the guarantees for the rights of monopoly capitalists of Wall Street to be able to continue exploiting the people of other countries. Because the Soviet Union didn’t allow this kind of exploitation to continue, it has thus been considered in the eyes of the imperialists as completely “negating” international law. Imperialists maintain these kinds of “international legal principles”, and so they can shamelessly act on the basis of being “defenders of the law” while asserting a monopoly on the term “international law”. Based on their point of view, they are the inheritors of international legal orthodoxy. The Soviet Union negates international law, and so even if the Soviet Union does discuss international law as well, this can only be “a side-door and leftward path” [pangmen zuodao 旁门左道] [13], and something that “cannot enter the great noble hall” [bu deng da ya zhi tang 不登大雅之堂]. [14]
However, the facts demonstrate that these wild and reckless statements are wholly without basis. The basic principles of international law preserve international peace and order. In reality, all international legal norms that can be maintained over time are incapable of being separated from the progress of history. Norms that are developed simply for the pursuit of profit at a given time and place will all be eliminated with the passage of time, only norms with a progressive character have binding force across various periods of time. Moreover these norms with a progressive character must be integrated with the most progressive forces in international society. Only these sorts of progressive states are the true preservers and implementers of progressive legal principles. From this we can say that today, only the peace camp countries with the Soviet Union at their head deserve to bring up international law, and only these countries are the real inheritors of international legal orthodoxy. For the Soviet Union to choose this sort of matter in which right and wrong are “separated as clearly as the Jing and Wei Rivers” [pan ruo Jing Wei 判若泾渭] [15] to gravely raise issues of international law is something with great educational significance. It not only disintegrates several decades of the imperialists’ slander of the Soviet Union, but also more clearly indicates who is really undermining international law.
Thirdly, preserving international law is part of the basic principles of the Soviet Union’s foreign policy. The Soviet Union’s fundamental foreign policy, in a word, is to maintain world peace, and international law is precisely the main tool for implementing this policy. It is optimal if peace can be procured and maintained by means of international law; at the same time, it is only on the condition that international law can sustain its dignity and effectiveness that peace can be ensured. From this we can ascertain that the Soviet Union’s peace policy is inseparable from its preservation of international law. In stark contrast, imperialists do not seek peace. A true lasting peace is precisely what they fear. They must continue to seize colonies, and continue to treat socialist and New Democratic countries as enemies, in order to sustain their last gasps of vitality. Their survival is incompatible with peace, and thus it can be seen, their contempt of international law is only natural. Despite the fact that they use “international law” and “international order” as verbal ammunition, one only needs to analyze their attitude towards peace in order for their hypocrisy to be apparent without the need for argument.
Now the peace camp with the Soviet Union at their head is promoting the policy of peace to oppose the warmongers who seek to provoke a Third World War. At present, it is a heavy blow against the warmongers for the collaborative peace movement that is spreading like wildfire throughout the world to discuss things in terms of international law. This is profoundly significant. Even though they are armed bandits who kill and steal, we insist on sticking to our principles of law and reason in struggling against them.
In the Korean incident, everything done by the US-UK imperialist coalition is in violation of international law, for example their initiatives at the UN, or the savage, indiscriminate bombing of Korean civilians by US forces. All of these issues won’t be discussed in this essay, for now we’ll merely explain a bit regarding some principles of international law that have to do with interference in internal affairs. In the Korean incident, the US-UK coalition has used this kind of bizarre language to cover up facts of their commission of aggression: they say that North Korea “invaded” South Korea, and because of this the incident falls within the scope of UN Security Council jurisdiction. The UN Security Council has made a few resolutions on the basis of this situation, and so for the American imperialists to send their armed forces into Korea is just implementing the Security Council’s “resolution”; that is to say it is carrying out an international legal obligation. This whole string of rhetoric from the American imperialists is founded on an extremely weak hypothesis, which is that the conflict between the northern and southern parts of Korea is an international incident. [16] Because of this, the Security Council (that is, the American imperialists [co-opting it]) has arrogated to itself the right of intervention. If one can make it clear that the war between North and South Korea is not an international incident, then the entire edifice of the American imperialists’ excuse for invasion will, like a house of cards, collapse on its own without even having to be pushed.
The conflict between North and South Korea is a matter that is purely internal to Korea, and this should be a point of reason that is obvious on its face. Korea was a unified country before it was swallowed up by the Japanese imperialists. The Cairo Conference of 1943 decided that after the war Korea should regain its status as a single independent and free state. Following the Japanese surrender, Korea being divided into northern and southern occupied territories did not overturn the decision that Korea should be established as a single state. The 38th parallel is just a temporary military demarcation line, and does not constitute a political border. Even the US delegate [Warren R.] Austin could not help but acknowledge this point at the Security Council. Since the US and Soviet forces withdrew from Korea, the 38th parallel has just signified an internal boundary between the effective administrative authority of two internal political factions. It has no legal significance at all. The Democratic People’s Republic of Korea was established on the basis of a vote by the whole people of Korea, and it is the only legitimate government of all of Korea. [17] In order to carry out its government duties, this government seeks to promulgate its policies throughout the whole country, and this is, quite obviously, a purely internal, domestic matter.
Even if one views things from the American imperialists’ perspective, there is still no rational basis for considering the Korean conflict to be international in character. Doesn’t Syngman Rhee’s puppet regime also claim to be the government of all of Korea? Didn’t the American imperialists recognize it as such? Not only that, but the American imperialists previously proposed that it join the UN. If the American imperialists really consider the Rhee regime to be the government of Korea in its entirety, then logically they could not assert that there is another government in Korea that could go to war with the Syngman Rhee government that “represents” the entire Korean state. If the American imperialists do assert that the Korean conflict is an international incident, then they are denying the Syngman Rhee regime’s claim to be the sole national government of Korea. They’re slapping themselves in the face. If they persist in stating that the Rhee regime does “represent” all of Korea, then they cannot assert that the Korean conflict is an international incident, and so the UN Security Council intervention would be illegal (for now we won’t go into its procedural illegality), and so any “authorization” conferred by the Security Council, and any acts taken on the basis of this “authorization”, would also be illegal.
As the Korean conflict between North and South is purely and utterly an internal issue, for any foreign state or international organization to get involved with it constitutes interference in internal affairs. Interference in internal affairs is a crime that cannot be forgiven under international law, for the act of intervention destroys the principles of sovereignty, autonomy, and national self-determination which serve as the foundation stones of international law. The UN Charter explicitly prohibits “interven[ing] in matters which are essentially within the domestic jurisdiction of any state”. [18] The UN’s capacity for action is restricted by the Charter, and the UN organization cannot take any action that is prohibited by the Charter. For this reason, the Security Council’s “decision” to intervene in Korea’s internal conflict, no matter how great the “majority” that supports it, cannot acquire legality. [19] The US coalition’s attempt to seize the mantle of the UN is wholly futile, for the Security Council has not taken any legal action, and so the actions taken under the auspices of the UN by the US and its servile states can only be considered as various acts of aggressive intervention.
Given that for an international organization to interfere in domestic affairs is not permitted, for particular states acting on their own or in concert to undertake such interference all the more clearly constitutes a crime of aggression. The principle of non-interference in internal affairs is originally a common norm of international law developed based on the fundamental principles of state sovereignty, autonomy, and national self-determination. However, the US is also subject to further restrictions based on specific international treaties. Because the US has ridden astride Latin America as a hegemon, specializing in interference with the internal affairs of other states, other countries of the Americas have specifically sought via several treaties to explicitly prohibit this activity. These include, for example, the Montevideo Convention on the Rights and Duties of States concluded at the Seventh International Conference of American States in 1933; the Additional Protocol on Non-Intervention of 1936; and the March 3rd, 1945 Act of Chapultepec, all of which solemnly declare the illegality of acts of interference.
How could the US not be aware that the Korean civil war is an internal matter? How could it not be aware that to intervene in this civil war was illegal? But from the time it first became an imperialist country, the US has long been a serial violator of this norm. Ever since then, it has had this crime as an element in its bloodstream. If we look at the annals of diplomatic history, it’s not hard to discover that cases of the crime of interference are supplied in shockingly large quantities by the US. From the mid-19th century, the US has used the protective amulet of the Monroe Doctrine to achieve a monopoly on intervention in the Americas. After the First World War, this system of interference was promulgated to cover other parts of the world. [20]
Interference by the US takes on two forms: political interference and military intervention. The method of political interference by the US is to bribe and coopt pro-American elements and other traitors who are willing to sell out their own nations, while helping them usurp state authority in their countries. Their repayment to the US is then to give up their national resources and special privileges to the monopoly capitalists of Wall Street. Any regime that does not obey the orders of the US, and doesn’t work on behalf of the bosses of Wall Street, cannot obtain the “recognition” of the US. In the Americas, a refusal of recognition by the US can topple any government. Huerta was elected as the provisional president in Mexico’s 1913 Revolution, but because he didn’t accept the vast economic benefits requested by the US, the US refused him recognition, and instigated a “revolution” against him by the soldier Carranza. [21] After Carranza assumed office, he accepted the conditions imposed by the US, and only then did he obtain a stable throne over the rivers and mountains [zuo wen le jiangshan 坐稳了江山]. [22] In 1945 the President of Venezuela merely offended slightly the interests of America’s oil monopoly capitalists, and as a result he was chased from power. [23] In Latin America, these cases are too many to be counted. During China’s great revolution, the US recognized Chiang Kai-shek’s reactionary regime, and this was also because Chiang accepted the role of comprador for America. Since after the Second World War, the US has actively interfered in China’s civil war, and has taken the Chinese people’s movement for liberation as its enemy. In Vietnam, in the Philippines, and in Korea, it is the same, with the US expending the utmost effort to support the puppet regimes that are rejected by the local people, and resisting the people’s struggle for freedom and autonomy.
If political interference fails, per the logic of imperialism one must then turn to military intervention. Political interference is already an unpardonable offence, but military intervention is outright and unmistakable outlaw behaviour. However, for the sake of carrying out imperialist aggression, the US doesn’t shrink in fear from committing colossal crimes. In Latin America, military intervention has come to seem as ordinary as a home-cooked meal, but outside of the Americas, aside from intervening in the Russian revolution, the US has largely not yet conducted military intervention on a large scale. Truman’s June 27th declaration simultaneously initiated military intervention in Korea and China, and in the history of US invasions it is the first case of such a fierce and reckless maneuver. However, the US has already stumbled enough in Korea to find itself bruised and bloody; if it tries to come further into China to try its luck, that will be the same as digging its own grave.
Interfering in internal political affairs is one of the common tools of imperialist intervention. Today, however, the times have changed, and oppressed people have already raised their heads. If the US today still seeks to continue using the methods of the golden age of imperialism, then it is utterly ignorant of current affairs. We can predict that the methods of interfering in internal affairs will after this incident certainly become funeral offerings to be buried with the imperialists.
Marshal Stalin has pointed out that international law comprises the principles that normal international relations should follow and abide by. For imperialists to hypocritically use international law to cover up their acts of aggression, while in practice seeking to undermine international law, is the typical attitude towards law of violent bandits. Because undermining the law is useful to violent bandits, in seeking to prevent and punish their banditry one must use methods that emphasize the law, respect the law, and confer dignity and force to the law. In this way, when the bandits want to commit illegal acts, they will have an additional set of worries. The Soviet Union’s criticism of the US and UK coalition based on international law is without doubt a matter of great annoyance to the reactionary groups. This disaster for the imperialists is good fortune for us; the less willing they are to acknowledge international law, the more we should stand resolutely by international law in our struggle against them.
Translator’s Postscript
In studying the history of non-Western, “Third World”, socialist, or otherwise marginalized approaches to international law, statements like this, in which excluded actors endorse foundational norms, are especially significant. The problems of fragmentation and indeterminacy in modern international law are compounded when one takes into account the many ways in which international legal rules can lack subjective legitimacy for formerly colonized peoples. On the other hand, attempts to reimagine international law on the basis of genuine equality and inclusivity risk relativizing the entire system of legal rules and thus abandoning the goal of describing a positive legal order that can actually facilitate cooperative relations among the world’s peoples.
The prohibition of aggression in the UN Charter, which is the chief subject of Chen’s article, is perhaps the prime example of an international law norm that provides a meaningfully “objective” basis for international obligations. Like many legal norms, it is indeterminate to the extent that its exceptions (for instance, the definition in any particular situation of “self-defense” under Article 51) can potentially be manipulated (whether in good faith or bad) to the point of excusing prima facie violations. Socialist and Third World states, including Mao-era China, were by no means immune to the notion that their own wars, or their own justifications for uses of force, could be considered “just” exceptions to prohibitions arising from norms of either jus ad bellum or jus in bello. [24]
Chen’s own firmer views regarding the binding nature of fundamental rules agreed upon between bourgeois and socialist states were a significant factor in his denunciation during the Mao period. During the Anti-Rightist Campaign in 1957, this took the form of arguments that he sought to “proclaim himself King in the field of international law” by seeking to ensure the profession’s institutional independence [25], and that he and other international law experts had failed to adequately “reform themselves” [ziwo gaizao 自我改造] in the socialist era. [26] Nonetheless, something closer to the views he had already expressed in 1950 would eventually be the default official position by the time of his death during the Reform period. As a 1988 PRC textbook on international law states, “[t]he UN Charter was not something monopolized single-handedly by capitalist states, but rather was based in a universal demand by the peoples of all the world’s countries. It was created by capitalist and socialist states together.” [27]
As B. S. Chimni writes in International Law and World Order, the prohibition on the use of force is perhaps the quintessential embodiment of “political and historical consensus in the international community in 1945”. [28] Nor is it the case that formal legal validity per se suffices to imbue such norms with their normative weight. Rather, the causal relationship is the reverse: the “consensus on political and historical judgment embodied in the rule” is itself “the reason that legal texts [such as this one] constrain”. [29] Turning back to the early critical invocations of the norm against aggression in the context of socialist and Third World legal critiques like Chen’s can help to develop approaches to its interpretation today that more genuinely reflect the “political and historical consensus” capable of providing the norm both epistemic determinacy and a meaningfully counter-hegemonic character.
On the specific issue of aggression in the Korean peninsula, the above reflections suggest welcoming current US-North Korean negotiations and calling for their intensification into a genuine peace process. Continuing US non-recognition of North Korea’s statehood is emblematic of how Cold War dynamics still define today’s geopolitics and international law. Moreover, weaponized doctrines of recognition do not just affect international relations; they also shape the internal dynamics of polities whose very ontology is decided upon by duelling superpowers. North Korea certainly did not become the humane socialist state that its founders claimed to be working towards; rather, it has much the sort of political and social system one would expect for a regime on a constant war footing for seven decades with a mighty, hostile army stationed on its borders. Progress towards lasting peace, as well as a chance of eventual internal reform of the North Korean regime, are more likely if all parties now pursue the “consensus”, and mutual recognition, that eluded the Cold War camps in the 1950s.
[1] In early English-language references, Chen’s given name is transliterated as “Ti-chiang”.
[2] Ti-chiang Chen, The International Law of Recognition (New York: Frederick A. Praeger, 1951).
[3] Pearce Higgins and John Colombos, The International Law of the Sea, second revised edition (London: Longmans, Green, 1951).
[4] Haiwen Zhang, “Professor Wang Tieya and the Law of the Sea”, 4 (2002) Journal of the History of International Law 204, at 208.
[5] Lassa Oppenheim, Aobenhai Guojifa [奥本海国际法] [Oppenheim’s International Law], eighth revised edition, ed. Hersch Lauterpacht, trans. Wang Tieya and Chen Tiqiang (as Shi Di and Chen Jian) (Beijing: Shangwu Yinshu Guan, 1975).
[6] See, e.g., Chen Tiqiang, “The People’s Republic of China and Public International Law”, 8 (1984) Dalhousie Law Journal 3.
[7] Shei shi guojifa de pohuaizhe [谁是国际法的破坏者?].
[8] Soviet News, No. 2393 (5 July 1950).
[9] 5 UN SCOR No. 24 at 3–14; Malik’s full statement before the Security Council is reprinted in Louis B. Sohn, United Nations Law, second revised edition (Brooklyn: Foundation Press, 1967), 482–85.
[10] “Comment and Reports on the Korean War: On Civil War and Aggression, Editorial: Ignorance in Questions of International Law”, Izvestia, 6 August 1950 (also published in Pravda five days earlier).
[11] New Democracy [xin minzhu 新民主] is a reference to the official political platform of the Chinese Communist Party in the early years of the People’s Republic of China, in which it pursued a policy of “coalition” between workers, peasants, the petty bourgeoisie, and the national bourgeoisie. This was in turn traced to Lenin’s early Soviet policies and “New Democracy” was also used as a general term for socialist states. Here Chen suggests that international law allows for a similar process of coalition-building at the international level–an interesting idea that is somewhat in advance of the Party’s official line at the time. See, e.g., Mao Zedong, “On New Democracy” [1940], available at https://www.marxists.org/reference/archive/mao/selected-works/volume-2/mswv2_26.htm.
[12] This is a reference to the so-called “Colby Note”. Colby to Avezzana, 10 August 1920, reproduced in Papers Relating to the Foreign Relations of the United States, 1920, ed. Joseph V. Fuller (Washington: U.S. Government Printing Office, 1920), 463–68; available at https://nsarchive2.gwu.edu//coldwar/documents/episode-1/colby.htm.
[13] A traditional four-character phrase originally referring to unorthodox Daoist religious practices believed to obstruct the achievement of true enlightenment. Later used to generally refer to misguided or backwards beliefs and methods that cannot hope for official validation.
[14] A phrase conveying that something is unrefined or unfit for high society. Again, used here to suggest the West’s marginalization of socialist views on international law and those espousing them.
[15] A traditional phrase used to describe matters in which two sides (e.g. right and wrong) can be clearly distinguished at first glance. The Jing and Wei are two intersecting rivers in Shanxi Province, one of which is clear and the other of which is muddy.
[16] In other words, that the incident meets the definition of a “threat to … international peace and security” under Art. 39 of the UN Charter.
[17] The legitimacy of the DPRK as the sole representative of the state of Korea was, of course, the official view espoused by China at the time. Both the North and South Korean governments claimed to have been established on the basis of nation-wide elections, but there were serious procedural problems in both cases.
[18] Art. 2(7), UN Charter.
[19] Similar views as to the illegality of the UN intervention have been expressed by international lawyers outside of the socialist world, including at the time by Hans Kelsen. See Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems: With Supplement (Union, NJ: The Lawbook Exchange, 2000 [1951]). Kelsen differs from Soviet and Chinese lawyers making such arguments, however. Unlike them, he posits in the introduction to his 1951 supplement discussing the Korean War that while the prosecution of the war violates existing UN law, it could also mark an instance in which that law is derogated in favour of new customary norms. Kelsen, Law of the United Nations, 911–12.
[20] For an analysis drawing similar connections between the Monroe Doctrine and subsequent US interventions further abroad, see also Carl Schmitt, “Forms of Modern Imperialism in International Law” [1933], in Timothy Nunan (ed.), Writings on War (Cambridge: Polity Press, 2011), 30–74.
[21] For discussions of the US role in denying recognition to the Huerta government and the subsequent military intervention, see Peter V. N. Henderson, “Woodrow Wilson, Victoriano Huerta, and the Recognition Issue in Mexico”, 41 (1984) The Americas 158; Lars Schoultz, Beneath the United States: A History of U.S. Policy Toward Latin America (Cambridge: Harvard University Press, 2009), 239–52.
[22] A traditional phrase signifying the consolidation of a monarch’s rule.
[23] In 1945 the President of Venezuela, Isaías Medina Angarita, was overthrown by a coalition of the liberal left Acción Democrática party and the armed forces under Marcos Pérez Jiménez. This coup followed Medina Angarita’s establishment of diplomatic relations with the Soviet Union, domestic electoral cooperation with the communist-affiliated Unión Popular party, and attempts to negotiate better terms for Venezuelans vis-à-vis American oil companies. The coup was followed by a three-year period of democratic government led by Acción Democrática, whose policies in several respects continued those of Medina, until worsening relations with their former allies in the military led to another coup, and the installation in 1948 of a military regime under Jiménez that swiftly received US support. For different interpretations of the coup–also commonly regarded as the “founding moment for Venezuelan democracy”–see, e.g., Judith Ewell, Venezuela: A Century of Change (Palo Alto: Stanford University Press, 1984), 94–96; Phil Gunson, Andrew Thompson, and Greg Chamberlain, The Dictionary of Contemporary Politics of South America (London: Routledge, 2015), 177–78; Steve Ellner, “Venezuela”, in Leslie Bethell and Ian Roxborough (eds.), Latin America Between the Second World War and the Cold War: Crisis and Containment, 1944–1948, vol. 1 (New York: Cambridge University Press, 1997), 147–67 (“[M]embers of the Truman administration … particularly in the Defense Department … applauded the coup of 24 November 1948.”).
[24] Discussed by Jessica Whyte in “The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols to the Geneva Convention”, 9 (2018) Humanity: An International Journal of Human Rights, Humanitarianism, and Development 313.
[25] “陈体强妄图在国际法领域中称王 首都政法界揭穿他的野心批判他的谬论 [Chen Tiqiang Vainly Tries to Proclaim Himself King in the Field of International Law; The Political and Legal Profession in the Capital Exposes His Ambition and Criticizes His Fallacies]”, People’s Daily, 18 September 1957.
[26] Zhu Liru, “驳陈体强关于国际法的谬论 [Refuting Chen Tiqiang’s International Law Fallacies]”, People’s Daily, 18 September 1957 (“International law is one tool for solving international problems. If this tool is useful for our country, the cause of socialism, and the cause of peace in the world, we will use it … if it not useful … we will create new tools to replace it.”).
[27] Han Chengdong and Pan Baocun (eds.), Guojifa Jiaocheng 国际法教程 [Course in International Law] (Nanjing: Nanjing University Press, 1988).
[28] B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches, second edition (Cambridge: Cambridge University Press, 2017), 533.
[29] Chimni, International Law and World Order, 533.
Ryan Mitchell is an Assistant Professor of Law at the Chinese University of Hong Kong. He received his JD from Harvard Law School and his PhD in law from Yale University. He is currently adapting his doctoral dissertation as a book on China, sovereignty, and international law, which is forthcoming with Cambridge University Press.
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