THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY2025|PDF|Epub|mobi|kindle电子书版本百度云盘下载

THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITYPDF格式电子书版下载

注意：本站所有压缩包均有解压码： 点击下载压缩包解压工具

PART Ⅰ INTRODUCTORY3

CHAPTER Ⅰ.THE SCIENCE OF INTERNATIONAL LAW AND THE LIMITATION OF THE PLACE OF LAW IN THE SETTLE- MENT OF INTERNATIONAL DISPUTES3

Ⅰ.The Doctrine of the Limitations of the Judicial Process in International Law3

1.The Limitation of the Place of Law as an Expression of the Theory of Sovereignty3

2.The Doctrine of the Limitation of the Judicial Process as an Argument in Favour of Obligatory Arbitration5

Ⅱ.The History of the Doctrine7

3.The Original Scope of the Doctrine.Vattel7

4.The Modern Origins of the Doctrine9

5.Views of Writers Prior to the Hague Conferences10

6.Kaltenborn12

7.Lorimer13

8.Westlake14

9.The Method of Enumeration16

10.Other Tests of Applicability of the Judicial Process： Justice and Adequacy of the Existing Law.The Attitude of the Parties17

11.Determination by International Tribunals17

12.The Conception of Justiciable Disputes19

13.The Scheme of the Work22

CHAPnER Ⅱ.CONVENTIONS OF PACIFIC SETTLEMENT AND THE LIMITATION OF THE JUDICIAL FUNCTION26

14.In General26

15.The Hague Conventions for Pacific Settlement27

16.The Hague Arbitration Conventions29

17.The Covenant of the League of Nations and the Charter of the United Nations32

18.The Optional Clause of Article 36 of the Statute of the Per- manent Court of International Justice and the International Court of Justice34

19.Treaties with the American Formulation of Justiciability of Disputes38

20.Arbitration Conventions of the Locarno Type40

21.The ‘General Act’ Conventions of Pacific Settlement42

21（a）.Treaties without the Traditional Classification of Disputes47

22.The Effect of the Doctrine of ‘Inherent Limitations’ Incorporated in Treaties48

23.The Authority of the Doctrine of the Limitations of the Inter-national Judicial Function as adopted in Treaties51

24.Limitations of the Judicial Function through Reservation52

PART Ⅱ THE INTERNATIONAL JUDICIAL FUNCTION AND THE COMPLETENESS OF INTERNATIONAL LAW59

CHAPTER Ⅲ.LIMITATION OF THE JUDICIAL FUNCTION ON ACCOUNT OF THE ABSENCE OF RULES OF INTERNATIONAL LAW59

Ⅰ.The Meaning of the Doctrine59

1.In General59

2.The History of the Doctrine60

3.Opinions of Statesmen.The Practice of States62

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 Law68

5.The Completeness of the Legal System as a Problem of Municipal Law68

6.The Prohibition of ‘non liquet’ as an ‘a priori’ Legal Principle71

7.The Positivist Doctrine and ‘Lacunae’ in International Law73

CHAPrER Ⅳ.‘LACUNAE’ IN INTERNATIONAL LAW78

8.The Peculiarities of the Problem of Gaps in International Law78

9.Genuine Interpretation in International Law79

（a） Imperfections of Conventional International Law80

（b） Static Character of Customary International Law81

（c） Absence of Co-ordinating Agencies82

10.Gaps due to Revealed Discrepancies in the Practice of States84

11.Judicial Activity and Gaps due to Discrepancies of Practice85

12.Spurious Interpretation in International Law87

13.Judicial Activity and Spurious Interpretation89

CHAPTER Ⅴ.THE PROBLEM OF THE JUDICIAL FUNCTION IN INTERNATIONAL LAW93

14.The Formal and Material Completeness of International Law93

15.Absence of an Express Rule.The ‘Savarkar’ Case96

16.The Same.Questions of State Succession98

17.Restrictive Interpretation of Available Sources.Extinctive Prescription101

18.Freedom of Action as a Regulative Principle.The ‘Lotus’ Case102

19.The Principle ‘neminem laedit qui jure suo utitur’.Closure of Buenos Ayres104

20.Limits of Permissive Rules.The Behring Sea Arbitration105

21.Cases ‘primae impressionis’ and the Judicial Function in International Law108

CHAPTER Ⅵ.NOVELTY OF ACTION AND NATURE OF JUDICIAL ACTIVITY IN INTERNATIONAL LAW113

22.Novelty of Action in International Judicial Settlement113

23.Interpretation of Treaties and Novelty of Action115

24.International Tribunals and the Function of Filling Gaps118

25.Filling of Gaps by Recourse to Analogy with Rules of Inter-national Law119

26.Filling of Gaps by the Application of General Principles of Law and of Principles of Private Law123

27.Finding of Rules by Judicial Reconciliation of Conflicting Legal Claims127

28.Filling of Gaps by reference to the Needs of the International Community and the Effectiveness of Treaty Obligations131

29.The Problem of ‘non liquet’ in the History of International Arbitration135

30.The Question of ‘non liquet’ in Boundary and Territorial Disputes.The Island of Palmas Arbitration139

31.Conclusions142

PART Ⅲ POLITICAL DISPUTES AND THE JUDICIAL FUNCTION IN INTERNATIONAL LAW147

CHAPTER Ⅶ.IMPORTANCE OF DISPUTES AS A TEST OF JUSTICIABILITY147

Ⅰ.Political Disputes in General147

1.Political Disputes as involving Important Issues147

2.The Legal Construction of Political Disputes152

Ⅱ.The History of International Arbitration and the Justiciability of Important Issues153

3.The British-American Arbitrations.Arbitrations under the Jay Treaty and other Mixed Commissions153

4.The Alabama Arbitration155

5.The British Guiana and Alaska Arbitrations156

6.The North Atlantic Fisheries Arbitration157

7.Relevance of the Historical Instances of Judicial Settlement of Important Issues159

Ⅲ.Relation between Legal and Political Disputes161

8.Political Character of All International Disputes， including Legal Controversies161

9.Legal Character of All International Disputes， including Political Controversies165

10.Historical Instances168

11.The Will of States as Determining the Justiciability of Political Disputes171

CHAPTER Ⅷ.INTERNATIONAL LAW AND JUDICIAL DETERMINATION OF IMPORTANT ISSUES174

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

13.The Principle ‘de maximis non curat praetor’ as a Legal Pro-position176

14.The Protection of Vital Interests of States by International Law and by International Tribunals181

15.Judicial Determination of the Right of Self-defence185

CHAPTER Ⅸ.THE DOCTRINE ‘DE MAXIMIS NON CURAT PRAETOR’ AS PART OF LEGAL OBLIGATIONS191

16.The Subjective Element in the Conception ofPolitical Disputes191

17.Ascertainment of the Political Character of the Dispute195

18.Conception of Political Disputes as part of Legal Obligations197

19.The Element of Good Faith199

20.Historical Instances.German State Succession Claims against Great Britain202

21.The Panama Canal Tolls Controversy204

22.The Tunis and Morocco Nationa Decrees Case205

23.Political Character of Legal Disputes under the Optional Clause.The Belgian-Chinese Controversy in 1926207

CHAPTER Ⅹ.THE IMPARTIALITY OF INTERNATIONAL TRIBUNALS210

24.The Impartiality of International Tribunals and the Problem of ObligatoryJudicial Settlement210

25.Impartiality as between the Parties to the Dispute211

26.Impartiality between Judicial Idealism and Claims of Sovereignty.The Right to detcrmine Jurisdiction213

27.International Tribunals and State Sovereignty216

28.Political Impartiality and Personal Integrity219

29.The Problem of Political Impartiality223

30.International Judicial Function and Representation of Interests228

31.The Impartiality of Neutral Judges232

32.Elimination of the Element of Representation of Interests.The Problem of National Judges236

33.The Attitude of the National Judges on the Permanent Court of hnternational J ustice238

34.Representation of Interests and the Impartiality of the Court240

35.The Current Arguments in Favour of the Institution of National Judges243

36.Safeguards of Impartiality of Judges.Improvements in the Method of Election245

PART Ⅳ STABILITY AND CHANGE IN INTERNATIONAL LAW253

CHAPTER Ⅺ.INTERNATIONAL CHANGE AND THE JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES253

1.The Absence of an International Legislature as a Reason for the Limitation of the Jurisdiction of Courts253

2.The Problem of Change in International Relations256

3.International Legislation as an Instrument of Change258

4.Judicial Adaptation of the Law to Changed Conditions262

5.The Absence of Provisions for Change and the Justiciability of International Disputes265

CHAPTER Ⅻ.INTERNATIONAL CONCILIATION AS AN INSTRUMENT OF CHANGE268

6.Conciliation as an Alternative Means of Settlement268

7.The Development and the Present Function of the Procedure of Conciliation270

8.The Effectiveness of the Procedure of Conciliation as an Instrument of Pacific Settlement273

9.Conciliation and Judicial Procedure275

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

10.The Doctrine ‘rebus sic stantibus’ as the Negation of International Law278

11.The Doctrine ‘rebus sic stantibus’ as a General Principle of Law280

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 Rights291

CHAPTER ⅩⅣ.THE DOCTRINE OF ABUSE OF RIGHTS AS AN INSTRUMENT OF CHANGE294

15.History of the Doctrine294

16.The Practice of International Tribunals296

17.The Practice of Quasi-international Tribunals298

18.The Prohibition of Abuse of Rights as a General Principle of Law300

19.The Prohibition of Abuse of Rights as the Basis of the Law of Torts303

20.The Function of the Doctrine of ‘Abus des Droits’ in International Law306

21.Further Instances of the Application of the Doctrine of Abuse of Rights in International Law308

（a） Nationality308

（b） Air Law309

（c） Injurious Use of Territory311

22.The Extent and the Limitations of the Application of the Doctrine of Abuse of Rights in International Law312

CHAPIER ⅩⅤ.EXTENSION OF JUDICIAL LEGISLATION BY THE WILL OF THE PARTIES315

23.In General315

24.Conferment of the Power to lay down Regulations316

25.Conferment of the Power to propose Recommendations318

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 Tribunals324

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 Tribunals332

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

33.Legislation ‘ad hoc’ by the Parties to the Dispute336

CHAPTER ⅩⅥ.JUDICIAL DECISION AS THE STARTING POINT FOR THE MODIFICATION OF THE LAW338

Ⅰ.By the Will of the Parties338

34.The Place ofJudicial Decision in the Scheme of Change338

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

36.Judicial Decision as Preliminary to Further Negotiations340

37.The Function of Advisory Opinions as an Instrument of Adjustment341

Ⅱ.As Part of International Constitutional Machinery344

38.Judgements of Courts and the Part of Political Organs344

39.The Function of the Council of the League of Nations in the Settlement of International Disputes347

40.The Council of the League and Judicial Settlement350

41.Conclusions.The Problem of Change and the Rule of Law352

PART Ⅴ DISPUTES AS TO RIGHTS AND CONFLICTS OF INTERESTS359

CHAPTER ⅩⅦ.‘DSPUTES AS TO RIGHTS’ AS A LEGAL CONCEPTION359

1.Claims for a Change in the Existing Law359

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 Dispute365

4.The Provisional Ascertainment of ‘Arbitrability’ in the Moroccan Claims Case367

5.Provisional Ascertainment of Justiciability in the Fourth Advisory Opinion369

6.The Conception of ‘Disputes as to Respective Rights’ and the Practice of States371

7.Conflicts of Interests and the Reign of Law in International Society374

8.Conflicts of Interests and the Classification of International Disputes377

CHAPTER ⅩⅧ.OBLIGATORY SETTLEMENT OF SO-CALLED CONFLICTS OF INTERESTS380

9.Settlement of Conflicts of Interests under the Reign of Law380

10.The Rejection of Obligatory Settlement of Conflicts of Interests by the General Act and Similar Conventions382

11.The ‘ex aequo et bono’ Clause of the General Act385

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

PART Ⅵ THE LIMITS OF THE RULE OF LAW393

CHAPTER ⅩⅨ.LIMITATIONS OF THE RULE OF LAW WITHIN THE STATE393

1.In General393

2.Administrative Law.Limitations of the Law and Limitations ofJudicial Process394

3.Act of State.Political Questions.Conclusiveness of the Statements of the Executive395

4.Limitations of the Sphere of Law Inherent in the Nature of the Legal Function398

5.Limitations of Time and Place399

6.Self-help401

7.Real and Apparent Analogy with Municipal Law403

CHAPTER ⅩⅩ.THE ‘SPECIFIC’ CHARACTER OF INTER-NATIONAL LAW AND THE RULE OF LAW IN INTERNATIONAL SOCIETY407

Ⅰ.The Nature of International Law as a Problem of General Jurisprudence407

8.In General407

9.The Denial of the Existence of International Law408

10.The Denial of the Legal Nature of International Law410

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

12.The So-called Specific Character of International Law413

Ⅱ.International Law as a Law of Co-ordinate Entities415

13.Subordination and ‘Co-ordination’ in Law415

14.The Doctrine of Co-ordination and the Theory of Self-limitation417

15.The Doctrine of Co-ordination and the Supremacy of Force.Kaufmann420

16.The International Law of Co-ordination as based on Law-making Agreements423

17.The Law of Co-ordination and the Rule ‘pacta sunt servanda’.Cavaglieri and Anzilotti424

18.The Rule ‘pacta sunt servanda’ and the Justiciability of Inter-national Disputes426

19.The ‘Initial Hypothesis’ and the Rule of Law428

Ⅲ.The Judicial Function and the Legal Nature of International Law431

20.The Place of Courts in the Legal System431

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

22.International Law and General Jurisprudence439

23.The Task of the Science of International Law442

APPENDIX LIMITATION OF THE JUDICIAL FUNCTION IN DISPUTES BETWEEN STATE-MEMBERS OF COMPOSITE STATES448

The Supreme Court of the United States.Political Claims of Indian Tribes against the States of the Union448

Boundary Disputes involving Questions of Sovereignty and Jurisdiction448

State of Rhode Island v.State of Massachusetts449

Claims not based on a Recognized Rule of International Law.Diversion of Waters452

Dismissal of the Claim and the Limitation of Jurisdiction.The State of South Australia v.The State of Victoria453

The Same.Dominion of Canada v.The Province of Ontario456

The Proposed Arbitral Tribunal in the British Commonwealth of Nations457

Justiciability of Disputes between German States and Swiss Cantons459

INDEX461