THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITYPDF电子书下载

PART Ⅰ INTRODUCTORY 3

CHAPTER Ⅰ.THE SCIENCE OF INTERNATIONAL LAW AND THE LIMITATION OF THE PLACE OF LAW IN THE SETTLE- MENT OF INTERNATIONAL DISPUTES 3

Ⅰ.The Doctrine of the Limitations of the Judicial Process in International Law 3

1.The Limitation of the Place of Law as an Expression of the Theory of Sovereignty 3

2.The Doctrine of the Limitation of the Judicial Process as an Argument in Favour of Obligatory Arbitration 5

Ⅱ.The History of the Doctrine 7

3.The Original Scope of the Doctrine.Vattel 7

4.The Modern Origins of the Doctrine 9

5.Views of Writers Prior to the Hague Conferences 10

6.Kaltenborn 12

7.Lorimer 13

8.Westlake 14

9.The Method of Enumeration 16

10.Other Tests of Applicability of the Judicial Process： Justice and Adequacy of the Existing Law.The Attitude of the Parties 17

11.Determination by International Tribunals 17

12.The Conception of Justiciable Disputes 19

13.The Scheme of the Work 22

CHAPnER Ⅱ.CONVENTIONS OF PACIFIC SETTLEMENT AND THE LIMITATION OF THE JUDICIAL FUNCTION 26

14.In General 26

15.The Hague Conventions for Pacific Settlement 27

16.The Hague Arbitration Conventions 29

17.The Covenant of the League of Nations and the Charter of the United Nations 32

18.The Optional Clause of Article 36 of the Statute of the Per- manent Court of International Justice and the International Court of Justice 34

19.Treaties with the American Formulation of Justiciability of Disputes 38

20.Arbitration Conventions of the Locarno Type 40

21.The ‘General Act’ Conventions of Pacific Settlement 42

21（a）.Treaties without the Traditional Classification of Disputes 47

22.The Effect of the Doctrine of ‘Inherent Limitations’ Incorporated in Treaties 48

23.The Authority of the Doctrine of the Limitations of the Inter-national Judicial Function as adopted in Treaties 51

24.Limitations of the Judicial Function through Reservation 52

PART Ⅱ THE INTERNATIONAL JUDICIAL FUNCTION AND THE COMPLETENESS OF INTERNATIONAL LAW 59

CHAPTER Ⅲ.LIMITATION OF THE JUDICIAL FUNCTION ON ACCOUNT OF THE ABSENCE OF RULES OF INTERNATIONAL LAW 59

Ⅰ.The Meaning of the Doctrine 59

1.In General 59

2.The History of the Doctrine 60

3.Opinions of Statesmen.The Practice of States 62

4.Analysis of the Phrase ‘Rules of International Law Applicable to the Settlement of the Dispute’ 64

Ⅱ.The Completeness of the Legal System as a General Principle of Law 68

5.The Completeness of the Legal System as a Problem of Municipal Law 68

6.The Prohibition of ‘non liquet’ as an ‘a priori’ Legal Principle 71

7.The Positivist Doctrine and ‘Lacunae’ in International Law 73

CHAPrER Ⅳ.‘LACUNAE’ IN INTERNATIONAL LAW 78

8.The Peculiarities of the Problem of Gaps in International Law 78

9.Genuine Interpretation in International Law 79

（a） Imperfections of Conventional International Law 80

（b） Static Character of Customary International Law 81

（c） Absence of Co-ordinating Agencies 82

10.Gaps due to Revealed Discrepancies in the Practice of States 84

11.Judicial Activity and Gaps due to Discrepancies of Practice 85

12.Spurious Interpretation in International Law 87

13.Judicial Activity and Spurious Interpretation 89

CHAPTER Ⅴ.THE PROBLEM OF THE JUDICIAL FUNCTION IN INTERNATIONAL LAW 93

14.The Formal and Material Completeness of International Law 93

15.Absence of an Express Rule.The ‘Savarkar’ Case 96

16.The Same.Questions of State Succession 98

17.Restrictive Interpretation of Available Sources.Extinctive Prescription 101

18.Freedom of Action as a Regulative Principle.The ‘Lotus’ Case 102

19.The Principle ‘neminem laedit qui jure suo utitur’.Closure of Buenos Ayres 104

20.Limits of Permissive Rules.The Behring Sea Arbitration 105

21.Cases ‘primae impressionis’ and the Judicial Function in International Law 108

CHAPTER Ⅵ.NOVELTY OF ACTION AND NATURE OF JUDICIAL ACTIVITY IN INTERNATIONAL LAW 113

22.Novelty of Action in International Judicial Settlement 113

23.Interpretation of Treaties and Novelty of Action 115

24.International Tribunals and the Function of Filling Gaps 118

25.Filling of Gaps by Recourse to Analogy with Rules of Inter-national Law 119

26.Filling of Gaps by the Application of General Principles of Law and of Principles of Private Law 123

27.Finding of Rules by Judicial Reconciliation of Conflicting Legal Claims 127

28.Filling of Gaps by reference to the Needs of the International Community and the Effectiveness of Treaty Obligations 131

29.The Problem of ‘non liquet’ in the History of International Arbitration 135

30.The Question of ‘non liquet’ in Boundary and Territorial Disputes.The Island of Palmas Arbitration 139

31.Conclusions 142

PART Ⅲ POLITICAL DISPUTES AND THE JUDICIAL FUNCTION IN INTERNATIONAL LAW 147

CHAPTER Ⅶ.IMPORTANCE OF DISPUTES AS A TEST OF JUSTICIABILITY 147

Ⅰ.Political Disputes in General 147

1.Political Disputes as involving Important Issues 147

2.The Legal Construction of Political Disputes 152

Ⅱ.The History of International Arbitration and the Justiciability of Important Issues 153

3.The British-American Arbitrations.Arbitrations under the Jay Treaty and other Mixed Commissions 153

4.The Alabama Arbitration 155

5.The British Guiana and Alaska Arbitrations 156

6.The North Atlantic Fisheries Arbitration 157

7.Relevance of the Historical Instances of Judicial Settlement of Important Issues 159

Ⅲ.Relation between Legal and Political Disputes 161

8.Political Character of All International Disputes， including Legal Controversies 161

9.Legal Character of All International Disputes， including Political Controversies 165

10.Historical Instances 168

11.The Will of States as Determining the Justiciability of Political Disputes 171

CHAPTER Ⅷ.INTERNATIONAL LAW AND JUDICIAL DETERMINATION OF IMPORTANT ISSUES 174

12.The Function of the Doctrine ‘de maximis non curat praetor’ 174

13.The Principle ‘de maximis non curat praetor’ as a Legal Pro-position 176

14.The Protection of Vital Interests of States by International Law and by International Tribunals 181

15.Judicial Determination of the Right of Self-defence 185

CHAPTER Ⅸ.THE DOCTRINE ‘DE MAXIMIS NON CURAT PRAETOR’ AS PART OF LEGAL OBLIGATIONS 191

16.The Subjective Element in the Conception ofPolitical Disputes 191

17.Ascertainment of the Political Character of the Dispute 195

18.Conception of Political Disputes as part of Legal Obligations 197

19.The Element of Good Faith 199

20.Historical Instances.German State Succession Claims against Great Britain 202

21.The Panama Canal Tolls Controversy 204

22.The Tunis and Morocco Nationa Decrees Case 205

23.Political Character of Legal Disputes under the Optional Clause.The Belgian-Chinese Controversy in 1926 207

CHAPTER Ⅹ.THE IMPARTIALITY OF INTERNATIONAL TRIBUNALS 210

24.The Impartiality of International Tribunals and the Problem of ObligatoryJudicial Settlement 210

25.Impartiality as between the Parties to the Dispute 211

26.Impartiality between Judicial Idealism and Claims of Sovereignty.The Right to detcrmine Jurisdiction 213

27.International Tribunals and State Sovereignty 216

28.Political Impartiality and Personal Integrity 219

29.The Problem of Political Impartiality 223

30.International Judicial Function and Representation of Interests 228

31.The Impartiality of Neutral Judges 232

32.Elimination of the Element of Representation of Interests.The Problem of National Judges 236

33.The Attitude of the National Judges on the Permanent Court of hnternational J ustice 238

34.Representation of Interests and the Impartiality of the Court 240

35.The Current Arguments in Favour of the Institution of National Judges 243

36.Safeguards of Impartiality of Judges.Improvements in the Method of Election 245

PART Ⅳ STABILITY AND CHANGE IN INTERNATIONAL LAW 253

CHAPTER Ⅺ.INTERNATIONAL CHANGE AND THE JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES 253

1.The Absence of an International Legislature as a Reason for the Limitation of the Jurisdiction of Courts 253

2.The Problem of Change in International Relations 256

3.International Legislation as an Instrument of Change 258

4.Judicial Adaptation of the Law to Changed Conditions 262

5.The Absence of Provisions for Change and the Justiciability of International Disputes 265

CHAPTER Ⅻ.INTERNATIONAL CONCILIATION AS AN INSTRUMENT OF CHANGE 268

6.Conciliation as an Alternative Means of Settlement 268

7.The Development and the Present Function of the Procedure of Conciliation 270

8.The Effectiveness of the Procedure of Conciliation as an Instrument of Pacific Settlement 273

9.Conciliation and Judicial Procedure 275

CHAPTER ⅩⅢ.THE JUDICIAL APPLICATION OF THE DOCTRINE ‘REBUS SIC STANTIBUS’ 278

10.The Doctrine ‘rebus sic stantibus’ as the Negation of International Law 278

11.The Doctrine ‘rebus sic stantibus’ as a General Principle of Law 280

12.The Scope and Limitations of the Judicial Application of the Doctrine ‘rebus sic stantibus’ 284

13.The Justiciability of Disputes Involving the Application of the Doctrine ‘rebus sic stantibus’ 288

14.So-called Inter-temporal Law.Changes in the Law and Continuance of Rights 291

CHAPTER ⅩⅣ.THE DOCTRINE OF ABUSE OF RIGHTS AS AN INSTRUMENT OF CHANGE 294

15.History of the Doctrine 294

16.The Practice of International Tribunals 296

17.The Practice of Quasi-international Tribunals 298

18.The Prohibition of Abuse of Rights as a General Principle of Law 300

19.The Prohibition of Abuse of Rights as the Basis of the Law of Torts 303

20.The Function of the Doctrine of ‘Abus des Droits’ in International Law 306

21.Further Instances of the Application of the Doctrine of Abuse of Rights in International Law 308

（a） Nationality 308

（b） Air Law 309

（c） Injurious Use of Territory 311

22.The Extent and the Limitations of the Application of the Doctrine of Abuse of Rights in International Law 312

CHAPIER ⅩⅤ.EXTENSION OF JUDICIAL LEGISLATION BY THE WILL OF THE PARTIES 315

23.In General 315

24.Conferment of the Power to lay down Regulations 316

25.Conferment of the Power to propose Recommendations 318

26.Recommendations by the Tribunal ‘proprio motu’ 319

27.Conferment of the Power to decide ‘ex aequo et bono’ 321

28.Regulation of Interests and the Judicial Character of International Tribunals 324

29.The Right of the Permanent Court of International Justice to decide ‘ex aequo et bono’ 326

30.The Adequacy of International Tribunals to regulate Interests ‘ex aequo et bono’ 329

31.The Need for Legislative Decisions ‘ex aequo et bono’ on the part of International Judicial Tribunals 332

32.The Practical Limits of Legislative Decisions ‘ex aequo ct bono’ 336

33.Legislation ‘ad hoc’ by the Parties to the Dispute 336

CHAPTER ⅩⅥ.JUDICIAL DECISION AS THE STARTING POINT FOR THE MODIFICATION OF THE LAW 338

Ⅰ.By the Will of the Parties 338

34.The Place ofJudicial Decision in the Scheme of Change 338

35.Judicial Decision as Preliminary to an Award ‘ex acquo et bono’ 339

36.Judicial Decision as Preliminary to Further Negotiations 340

37.The Function of Advisory Opinions as an Instrument of Adjustment 341

Ⅱ.As Part of International Constitutional Machinery 344

38.Judgements of Courts and the Part of Political Organs 344

39.The Function of the Council of the League of Nations in the Settlement of International Disputes 347

40.The Council of the League and Judicial Settlement 350

41.Conclusions.The Problem of Change and the Rule of Law 352

PART Ⅴ DISPUTES AS TO RIGHTS AND CONFLICTS OF INTERESTS 359

CHAPTER ⅩⅦ.‘DSPUTES AS TO RIGHTS’ AS A LEGAL CONCEPTION 359

1.Claims for a Change in the Existing Law 359

2.The Meaning of the Term ‘Disputes as to Respective Rights’ 361

3.Disputes as to Rights and the Provisional Ascertainment of the Justiciability of a Dispute 365

4.The Provisional Ascertainment of ‘Arbitrability’ in the Moroccan Claims Case 367

5.Provisional Ascertainment of Justiciability in the Fourth Advisory Opinion 369

6.The Conception of ‘Disputes as to Respective Rights’ and the Practice of States 371

7.Conflicts of Interests and the Reign of Law in International Society 374

8.Conflicts of Interests and the Classification of International Disputes 377

CHAPTER ⅩⅧ.OBLIGATORY SETTLEMENT OF SO-CALLED CONFLICTS OF INTERESTS 380

9.Settlement of Conflicts of Interests under the Reign of Law 380

10.The Rejection of Obligatory Settlement of Conflicts of Interests by the General Act and Similar Conventions 382

11.The ‘ex aequo et bono’ Clause of the General Act 385

12.Arbitration and Compulsory Settlement of ‘Conflicts of Interests’ 386

PART Ⅵ THE LIMITS OF THE RULE OF LAW 393

CHAPTER ⅩⅨ.LIMITATIONS OF THE RULE OF LAW WITHIN THE STATE 393

1.In General 393

2.Administrative Law.Limitations of the Law and Limitations ofJudicial Process 394

3.Act of State.Political Questions.Conclusiveness of the Statements of the Executive 395

4.Limitations of the Sphere of Law Inherent in the Nature of the Legal Function 398

5.Limitations of Time and Place 399

6.Self-help 401

7.Real and Apparent Analogy with Municipal Law 403

CHAPTER ⅩⅩ.THE ‘SPECIFIC’ CHARACTER OF INTER-NATIONAL LAW AND THE RULE OF LAW IN INTERNATIONAL SOCIETY 407

Ⅰ.The Nature of International Law as a Problem of General Jurisprudence 407

8.In General 407

9.The Denial of the Existence of International Law 408

10.The Denial of the Legal Nature of International Law 410

11.International Law as a necessarily ‘Weak Law’ 411

12.The So-called Specific Character of International Law 413

Ⅱ.International Law as a Law of Co-ordinate Entities 415

13.Subordination and ‘Co-ordination’ in Law 415

14.The Doctrine of Co-ordination and the Theory of Self-limitation 417

15.The Doctrine of Co-ordination and the Supremacy of Force.Kaufmann 420

16.The International Law of Co-ordination as based on Law-making Agreements 423

17.The Law of Co-ordination and the Rule ‘pacta sunt servanda’.Cavaglieri and Anzilotti 424

18.The Rule ‘pacta sunt servanda’ and the Justiciability of Inter-national Disputes 426

19.The ‘Initial Hypothesis’ and the Rule of Law 428

Ⅲ.The Judicial Function and the Legal Nature of International Law 431

20.The Place of Courts in the Legal System 431

21.The Meaning of the Rule ‘omnis judex in re sua’ 434

22.International Law and General Jurisprudence 439

23.The Task of the Science of International Law 442

APPENDIX LIMITATION OF THE JUDICIAL FUNCTION IN DISPUTES BETWEEN STATE-MEMBERS OF COMPOSITE STATES 448

The Supreme Court of the United States.Political Claims of Indian Tribes against the States of the Union 448

Boundary Disputes involving Questions of Sovereignty and Jurisdiction 448

State of Rhode Island v.State of Massachusetts 449

Claims not based on a Recognized Rule of International Law.Diversion of Waters 452

Dismissal of the Claim and the Limitation of Jurisdiction.The State of South Australia v.The State of Victoria 453

The Same.Dominion of Canada v.The Province of Ontario 456

The Proposed Arbitral Tribunal in the British Commonwealth of Nations 457

Justiciability of Disputes between German States and Swiss Cantons 459

INDEX 461