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ABSTRACT
Dr. Liang Yuen-Li (1903–1979) was a diplomat and lawyer from China, who was one of the founders of the UN International Law Commission (ILC) in 1947, serving as its first Secretary from 1949 to 1964. Having participated in the Hague Codification Conference of 1930, he had great authority in the ILC, and by his leadership led to the success in producing a number of important codification conventions in 1950s and 60s. After he had left the ILC, however, its productivity substantially declined. It is hoped today that his legacy be revived in the efforts for progressive development and codification of international law and the ultimate revitalization of the ILC.
Acknowledgement
The writer is grateful to Ms. Zhang Maoli for collecting valuable information on Dr. Liang Yuen-li. This article is based on the writer's presentation at the PKU Global Law Faculty Lecture on 17 October 2018, on ‘International Lawmaking Today: The Role of the UN International Law Commission’. The session was moderated by the then Professor Yi Ping of PKU. The author also appreciates Ms. Chen Haiwen for editing the footnotes.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 I employ the term ‘international lawmaking' in a broad sense in this presentation. It includes, but is not limited to, ‘codification and progressive development of international law', which is the mandate of the ILC. On the historical development of international lawmaking, see Shinya Murase, Kokusai Rippo (International Lawmaking: Sources of International Law) (Toshindo 2002) (in Japanese); Chinese Translation, 秦一禾（译），《国际立法：国际法的法源论》（中国人民公安大学出版社2012年版）.
2 Liang Sicheng (1901–1972) was professor of architecture at Tsinghua University in Beijing. He also taught at Peking University at least for one year. He was born in Tokyo as the son of Liang Qichao (1873–1929) who had defected from Qing Dinasty's persecution seeking asylum in Japan in 1898 along with Sun Yat Sen and others. Liang Sicheng may be better known in China as the husband of Lin Hui-yin (1901–1955), a beautiful poet, for their inspiring love story, which was made into a series of TV drama. They are known to have restored many ancient architectures in China. See, Wilma Fairbank, Liang and Lin: Partners in Exploring China's Architectural Past (University of Pennsylvania Press 1994). Liang Sicheng is also said to have saved the ancient Japanese cities of Kyoto and Nara form US aerial bombings during World War II by having advised the US Army liaison office in Chongqing, for which Japan owes him immensely. In 1947, he was doing research at Yale University when he was appointed to a member of the UN Board of Design. The writer is grateful to Ms. Wang Shan, former graduate student at China Youth University of Political Studies, for collecting information about Liang Sicheng.
3 Liang Yuen-li (1903–1979) was born in 1903 in Zhejiang Province of China. He graduated from Soo Chow University in Shanghai with a bachelor of law degree in 1926 and started working for China's Foreign Ministry in 1927. He obtained a doctorate in law from George Washington University in 1930. He participated in The Hague Codification Conference of the League of Nations in 1930. See, Appendix . See also 赵国材[Zhao Guocai]，“梁鋆立博士对国际法之贡献” [Dr. Liang Yuen-li’s Contribution to International Law]，《国际关系学报》1980 年第 3 期，第17-31页 [(1980) 3 The Journal of International Relations 17], available at <https://drive.google.com/file/d/1tEhliRN7fo6JeFYCd7akLFG1cTiRu21u/view> (last accessed 29 October 2023).
4 Bentham is known as having created the words ‘international law' and also the word ‘codification'. With his practical mind, he embarked on the comprehensive codification of international law in order to realize ‘the greatest and common utility of all nations taken together' (Jeremy Bentham, ‘Principles of International Law’ in John Bowring (ed), The Works of Jeremy Bentham, vol II (Nabu Press 2010) 538). See also, Mark W Janis, ‘Jeremy Bentham and the Fashioning of International Law’ (1984) 78 American Journal of International Law 405–418.
5 The present writer had been an ‘ILC watcher' for a long time since the early 1970s. In writing his JSD dissertation on the Most-Favored-Nation Clause, submitted to the University of Tokyo in 1972, he had exchanged letters with Professor Andre Ustor (Hungary), then ILC Special Rapporteur on the topic. The writer participated in the International Law Seminar organized by the ILC in 1975, on which occasion he became acquainted with a number of ILC members and the members of the Secretariat. He worked for the UN Codification Division as a legal officer between 1980 and 82. He was elected to the ILC in 2009 and re-elected in 2011 and 2016. He has served as Special Rapporteur for the topic on the Protection of the Atmosphere between 2013 and 2021. His term of office as an ILC member expired in 2022.
6 The Japanese research group elaborated nine separate draft conventions with assistance of Dr. Thomas Baty, then legal advisor to the Japanese Foreign Ministry. They were sent to the League, and at its Assembly meeting in 1928, Professor Henri Rolin, as rapporteur of the codification project, expressed his particular appreciation for the contribution made by the Japanese group, and also for those of the Harvard research group. Société des Nations, Résolutions et voeux adoptés par l’Assemblée au cours de sa neuvième session ordinaire, du 3 au 26 semptembre 1928, 9.
7 Jan HW Verzijl, ‘The First Codification Conference of the League of Nations (1930)’ (1968) 1 International Law in Historical Perspective 20; Manley O Hudson, ‘The First Conference for Codification in International Law’ (1930) 24 American Journal of International Law 449.
8 Ramaa P Dhokalia, The Codification of Public International Law (Manchester University Press 1970) 42.
9 The present writer attended the seminar of Professor Louis B. Sohn (1914–2006) on the ‘Law of the United Nations' at Harvard Law School in the mid-1970s. Professor Sohn often said in class: ‘This is the provision of the Charter that I drafted!'. We all smiled, though some of the students looked a bit skeptical. Apart from his, sometimes rather boasting, remarks, we were able to sense clearly the ethos, the pioneering spirit, and most notably the sense of urgency, of the Charter's drafters.
10 Wellington Koo （顾维钧）, born in Shanghai in 1888, studied at St. John's University in Shanghai from 1901 to 1904. He went on to study at Columbia University obtaining B.A. in 1908 and M.A. in 1909. He received PhD in international law and diplomacy in 1912. After returning to China in 1912, he held important diplomatic and political posts, including representative to the League of Nations, Ambassador to France and to the United States, Foreign Minister and Prime Minister. He served as a judge of the ICJ between 1956 and 1967. He retired and moved to New York City, where he died in 1985 at the age of 97.
11 See 叶惠芬（编）[Hui-Fen Yeh(ed)]，《中华民国与联合国史料汇编：筹设篇》[Documentary Collection on ROC and the United Nations: Origin]（国史馆2001年版）[Academia Historica 2001] 230–231.
12 There were four groups, the plenary meeting, the steering committee, the formulation group, and the military group. See, Nishimura Shigeo, ‘Dumbarton Oak Conference: the Self-portrait of China as from the Report of Chinese Delegation’ in Jin Guangyao (ed), Wellington Koo and China's Diplomacy (Shanghai Classic Publishing House 2001).
13 Wellington Koo said in his opening remark at the second phase: ‘ … In order to facilitate the necessary pacific settlement, full provision should be made in the proposed new institution. This is also true of international law. As the intercourse between peoples grows in complexity and the common interests of nations multiply and become more varied, principles and rules of conduct for their guidance need elucidation, revision and supplementation. For such work I can think of no more authoritative or better qualified body than the proposed new institution’.
14 U.N. Conference on International Organization, ‘Dumbarton Oaks Proposals Comments and Proposed Amendments’ in Documents of the United Nations Conference on International Organization, vol III (1945) 25.
15 Arnold Pronto, ‘Codification and Progressive Development of International Law: A Legislative History of Article 13(1)(a) of the Charter of the United Nations’ (2019) 13 Florida International University Law Review 1101.
16 Also present at San Francisco as a member of the Chinese delegation was Dr. Wang Chung-Hui (1881–1958). Born in Hong Kong in 1881, he was the first graduate of Peiyang University (later merged with Tianjin University) Law School, the first modern law school in China, in 1900. He obtained a doctorate from Yale Law School in 1905. He served as Deputy Judge (1920–30) and Judge (1930–36) of the Permanent Court of International Justice (PCIJ).
17 U.N. Conference on International Organization, ‘Proposed Amendments to the Dumbarton Oaks Proposals Submitted by the Philippine Delegation’, U.N. Doc. 2 G/14(k) (May 5, 1945), supra note 14, 536–37.
18 Liang Yuen-li, ‘The Progressive Development of International Law and its Codification under the United Nations’ (1947) 41 Proceedings of the American Society of International Law at its Annual Meeting 24, 38–39.
19 United Nations, ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory Work within the Purview of Article 18, Paragraph 1, of the International Law Commission – Memorandum Submitted by the Secretary-General’ (A/CN.4/1/Rev.1, 1949).
20 See Elihu Lauterpacht (ed), Collected Papers of Hercsh Lauterpacht, vol 1 (Cambridge University Press 1970), 445–530. It is however likely that Dr. Liang Yuen-li had his hands in drafting the Survey together with Hersch Lauterpacht. One of the Secretariat members of the Codification Division recalls that he actually saw Lauterpacht's paper on which Liang wrote down his comments. Unfortunately, the paper was lost some years ago when the Codification Division moved from the Secretariat Building to the DC Building across the First Avenue.
21 A similar ‘Survey of International Law' was elaborated by the Secretariat at the Commission's request in 1971. See International Law Commission, Yearbook of International Law Commission, vol II (Part Two) (1971) A/CN.4/425.
22 International Law Commission, Yearbook of the International Law Commission, vol II (1950), 367–374.
23 Dr. Liang Yuen-li was fluent in English and French. Dr. Eduardo Valencia-Ospina, current member of the ILC, applied for a post in the Codification Division in 1964 and was interviewed by Dr. Liang, Director of the Division. Dr. Valencia-Ospina recalls that Dr. Liang spoke in Spanish during the interview, and through the ensuing lunch.
24 Special Rapporteurs (SRs) play the central role at ILC. The debates at the plenary and drafting committee meetings are conducted on the basis of the SRs’ reports. Other members simply comment on the SRs’ reports. SRs are included as part of the enlarged bureau of the Commission, and are in the position to know what is going on there. At the same time, SRs need to spend, say, six months each year for drafting reports (and commentaries) with support from research assistants who provide necessary material and also from experts who give advice and suggestions in the course of writing up the reports. It is therefore necessary for SRs to have broad international networks of researchers and experts, which is easier for academics but may be more difficult for practitioners.
25 See Shinya Murase, ‘Obituary: Ambassador Sompong Sucharitkul (1931–2023)’, (2024) Yearbook of the Institut de Droit International (IDI) (forthcoming).
26 For example, at its 3378th plenary meeting on 20 July 2017, the Commission provisionally adopted draft article 7 (on exceptions to immunity) of Immunity of State Officials from Foreign Criminal Jurisdiction by recorded vote, with 21 votes in favour, 8 votes against and 1 abstention. Mr. Huikang Huang made a long statement after the voting, in which he implied that the ILC members should follow the views of their respective Governments, and specifically referred to: ‘Three of the four members representing the Group of 7 major advanced economies were against it, and the fourth's views were not in line with his Government's’. (What he meant was that three ILC members form G-7 countries (those from Germany, UK and US) voted in line with their respective Governments, but the fourth member, the present writer (from Japan, one of the G-7) voted in favor, which was not in line with the position of the Japanese Government). Surprised by his remark, several members strongly criticized Mr. Huang, reminding him of the ILC members’ work to be performed ‘in their individual capacity'. Mr. Huang then spoke on a point of order, saying that ‘his comments appeared to have been misunderstood. He recognized that members served on the Commission in their personal capacity and that the majority of members were in favour of draft article 7' (A/CN.4/SR 3378). Of course, there was no misunderstanding on the part of the other Commission members, and it was good that Mr. Huang corrected his own misunderstanding. The present writer stated: ‘He recalled that the members of the Commission served in their individual capacity as experts. They should work with complete independence from any Government, especially their own. For example, he was a member of the Japanese Prime Minister's panel on security issues, yet he still retained the capacity to be critical of his own Government when necessary; that should be the practice among all Commission members. He appreciated the fact that his Government respected his independence as a member of the Commission, and he hoped that the other Commission members enjoyed similar independence in relation to their Governments' (A/CN.4/SR 3379).
27 The change in the quality of the ILC membership may be discernible. When the present writer became a member in 2009, a former ILC member mentioned as follows: ‘Among the 34 members, many of whom are used up diplomats or absent minded professors, approximately, 20% of the members do not show up; 20% attend the meetings, but they do not understand what is going on in the Commission; 20% understand what is going on, but they never speak; another 20% of the members speak and sometimes speak a lot, but they are somewhat ‘out of tune'; the rest 20% of the members are those who actually contribute to the work of the Commission’. This reminded the present writer of his high school classmates, among whom he belonged to the last but one, out of tune, group. Not having changed much since his high school days, the present writer, it appears, belonged to the same group in the Commission.
28 The form of ‘conclusions' is employed for the following ILC topics: Fragmentation of International Law (Study Group), Most-Favoured-Nation Treatment (Study Group), Subsequent Agreement and Subsequent Practice in relation to Treaty Interpretation (Normal Procedure), Identification of Customary International Law (Normal Procedure), Peremptory Norms of General International Law (jus cogens) (Normal Procedure), General Principles of Law (Normal Procedure) and Sea-Level-Rise in relation to International Law (Study Group).
29 See footnote 26 above. That was a rare occasion in recent years when votes were taken.
30 Shinya Murase, ‘Working Methods of the International Law Commission: Concluding Remarks’ in United Nations, Seventy Years of the International Law Commission: Drawing the Balance for the Future (Brill 2020) 215.
31 International Law Commission, Yearbook of the International Law Commission, vol II (Part Two) (1997), para. 238.
32 A view was expressed by one of the members that a new topic should be proposed and adopted by ‘regular procedures' of the Commission, to which most members seemed to have agreed. If we followed the regular procedures, obviously it would take 2 or 3 years before the topic be adopted as an active agenda, and at least 6 or 7 years to complete the work, 10 years in total. Facing the current situation of disastrous epidemic, it was thought that we must seize on a similar sense of urgency as that was held by the founding fathers of the UN (see footnote 9). However, there was no such pressing sense of urgency witnessed among the current ILC members (with only a few exceptions), contrary to the drafters of the UN Charter in 1944–45. The topic on epidemics has long been neglected by mainstream international law, despite the fact that the world has seen a number of very serious events of epidemics during which a huge number of people have died with its death tolls much higher than great wars. There were voices appealing for the need to take up the topic from the perspective of international law in each time when an epidemic broke out, but they were quickly forgotten once the epidemic receded. It was therefore most appropriate that the Bureau of the IDI, in a most expeditious manner, established the 12th Commission with appointing the present writer as Rapporteur. It designated the topic with high priority, and set the deadline of the submission of the report by 31 December 2020, which was complied with by strong cooperative spirit of its members. See, Shinya Murase, Rapporteur, ‘Epidemics and International Law’ (2020) 81 Yearbook of the Institut de Droit International (IDI) 37.
33 See, Shinya Murase, Rapporteur, ‘Epidemics and International Law' (2022) 82 Yearbook of the Institut de Droit International (IDI) 33. The word ‘Pandemic' was inserted into the title of the IDI Resolution as finally adopted. See ibid 152ff. Regrettably, the IDI has no practice to print the Commentaries to the draft articles adopted. I strongly objected to this practice, but the IDI Bureau did not accept this proposal. To me, the draft articles are merely the bones and skeletons. and it is the Commentaries that supply the flesh, blood and nerves. I worked on writing the Commentaries with the members of the 12th Commission, and published it as a private publication: Shinya Murase, ‘Commentaries to the Resolution on ‘Epidemics, Pandemics and International Law' adopted by the Institut de Droit Internatioalnal in 2021’ (2021) 18 Soochow Law Journal 3.
34 He was a legal positivist, strictly distinguishing lex lata (law as it exists) and lex ferenda (law as it ought to be). His views about the distinction between the discipline of political science and that of law was frequently quoted in the literature on legal education. His writings on the law of the sea include the following: ‘The Codification of the Law of the Sea under the Auspices of the United Nations’ (1964) 1 Annals of the Chinese Society of International Law 3; ‘A Review of the Existing Law of the Sea’ (1977) 14 Annals of the Chinese Society of International Law 32.
35 On 11 December 2020, Soochow University Law School in Taiwan held the ‘Taipei Conference in memory of Dr. Liang Yuen-li', organized by Professor Cheng Chia Jui, to which the present writer sent his video speech on Dr. Liang's contribution on international lawmaking.
36 Liang Yuen-li, ‘The Progressive Development of International Law and its Codification under the United Nations’ (1947) 41 Proceedings of the American Society of International Law at its Annual Meeting 24, 24.
37 施蛰存[Shi Zhecun], “震旦二年 [Two Years in Aurora University]” in 陈子善、徐如麒（编）[Chen Zishan & Xu Ruqi (eds)], 《施蛰存七十年文选》[Selected Essays of Shi Zhecun for Seventy Years]（上海文艺出版社 1993 年版）[Shanghai Literature & Art Publishing House 1993], 283. In Shi's article, he recalled his Friend (Dai Wangshu)'s old days studying French and together with Liang in Aurora University. He said that Liang was super hardworking and had profound understanding of both Western and Eastern cultures, originally as “一位是梁鋆立，他白天在震旦大學讀法文，晚上在東吳大學法科讀法律，還兼了中華書局的英文編輯。此人讀書勤奮，學貫中西，後來在外交界工作，很有名望。”
38 《小日报》1929年3月19日[Xiaoribao, 19 March 1929]; 《晶报》1929年4月18日[Jingbao, 18 April 1929].