This is an apt and dense monograph on the judicial function in international law through the lens of the ICJ as the principal international court. Much literature (in more than one idiom) has been built in and style is concentrated. Some simpler and more straightforward language could sometimes have been helpful, instead of the loaded conceptual terminology of a series of authors quoted in the monograph (but the whole indeed remains very readable). Some chapters could have been shortened, e.g. the one on impartiality. The ground covered is large and the choice of the chapters pertinent; one could perhaps have added a chapter on the status of the Court as thelsquo;principal judicial organrsquo; on the UN, since this also reveals a great deal as to its place within the system of international law (for example through the concern of the UN organs for the implementation of the judgments or the eventual primacy of ICJ judgments in case of conflict with other international obligations by virtue of Article 103 of the UN Charter). Overall, the reader learns a lot about the Court and its functioning. The book is interesting from page 1 to the very last line.
The technical knowledge of the author is unimpeachable. The lsquo;Hernaacute;ndezrsquo; Judicial Function is mainly a great complement to thelsquo;Lauterpachtrsquo; Development of International Law. It is written as a sort of new reflection aiming at tempering Lauterpachtrsquo;s conclusions as presented in 1958. Lauterpacht advocated a strong judicial function and a significant role of the judge in imposing the growing international rule of law. Hernaacute;ndez is rather postmodern: tough not pessimistic at all, the faith in the simple equation of lsquo;peace through an always stronger international lawrsquo; has gone—and is bygone. Thus, the analysis is considerably more nuanced and critical. Overall, the judgment of the author remains sound. He never negates the role of the Court in the development of the law—or better: some development of the law. But he puts it in the full context of roughly one hundred years of experience and of present-day conditions. One concern of many governments today is that international legal norms should not excessively limit their room for political manoeuvring in what they consider their own national selfdetermination and local (democratic) choices. International law is binding; but local or national policy needs flexibility. More international law may also mean less such flexibility. Some sense of lsquo;no jail through lawrsquo; has surfaced, while the timehonoured axiom of lsquo;peace through lawrsquo; seems—to some extent unfortunately—at its ever-time nadir.
An interesting issue arises in the context of the international community and jus cogens. Did the Court really lsquo;hollow outrsquo; these concepts, as is often claimed and as Hernaacute;ndez claims? Or is it not rather that many authors have since many years and by constant cross-quotations developed such an ideological conception of these notions that their ordinary legal application appears to them as a betrayal oflsquo;communityrsquo;? In other words, is the standpoint of the Court a trashing one, or is the starting point of the mentioned authors open to discussion? It stands to reason that one always sees the beam in the eye of the other—this is a natural aspect of perspective. However, it is also clear that if one starts from the premise—which islegally wrong in the eyes of the present author—according to which jus cogens means a general hierarchy of norms, one may legitimately wonder why the Court did not give precedence to such norms over e.g. jurisdictional immunities. However, perhaps the Court simply did not lsquo;hollow outrsquo; these concepts. It has possibly applied them in their correct contemporary legal clothing. To ascribe further consequences to jus cogens than the voidness of contrary legal acts can obviously be done. But this is a task of the legislator, to be performed through the primary sources of international law, treaties and customary norms. A Court cannot anticipate such tectonic developments with potentially shattering consequences for the concrete legal order (think of what a general hierarchy of jus cogens norms could possibly entail!). This is all the more true in a shaky environment as the one of international relations, prone more than most others to instability and power policies. To instill more community norms providing some primacy for collective interest may be very welcome. But this needs to be organized through a myriad of adjustments calling for great care and generalized reflection, not for the utterance of a purported judicial pronouncement which might remain fully ineffective. Such a considerable development of international law is beyond the pale of what a judge can do. It must also be noted that the Court does not shy away from acceptable legal consequences of such community norms, as shown in the recognition of erga omnes partes obligations and enlarged legal standing in the Belgium v. Senegal case. The Court is therefore not obtuse with regard to community-oriented developments.
A further interesting issue is the one of the residual rule of State freedom (Lotus) to which Hernaacute;ndez devotes a chapter (see above). The argument made by Hernaacute;ndez on the possibly undue interference of this principle in the development of international law (lsquo;ossificationrsquo;) and its reliance on the past status quo rather than the dynamic lex ferenda is technically correct. But one has to put this statement in context (the author of the monograph would presumably not disagree with this point). The residual rule will very rarely find application, in particular in a developed legal order like contemporary international law. The freedom rule will possibly apply after all the sources of international law have been brought to speak, ranging from general international law to analogies, then to general principles, and perhaps also to the underpinning programmatic or value-norms of the political-legal order. Only when
剩余内容已隐藏，支付完成后下载完整资料
论国际法院的诉讼管辖权——以北海大陆架案为视角
2020年3月5日
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原文： This is an apt and dense monograph on the judicial function in international law through the lens of the ICJ as the principal international court. Much literature (in more than one idiom) has been built in and style is concentrated. Some simpler and more straightforward language could sometimes have been helpful, instead of the loaded conceptual terminology of a series of authors quoted in the monograph (but the whole indeed remains very readable). Some chapters could have been shortened, e.g. the one on impartiality. The ground covered is large and the choice of the chapters pertinent; one could perhaps have added a chapter on the status of the Court as thelsquo;principal judicial organrsquo; on the UN, since this also reveals a great deal as to its place within the system of international law (for example through the concern of the UN organs for the implementation of the judgments or the eventual primacy of ICJ judgments in case of conflict with other international obligations by virtue of Article 103 of the UN Charter). Overall, the reader learns a lot about the Court and its functioning. The book is interesting from page 1 to the very last line. The technical knowledge of the author is unimpeachable. The lsquo;Hernaacute;ndezrsquo; Judicial Function is mainly a great complement to thelsquo;Lauterpachtrsquo; Development of International Law. It is written as a sort of new reflection aiming at tempering Lauterpachtrsquo;s conclusions as presented in 1958. Lauterpacht advocated a strong judicial function and a significant role of the judge in imposing the growing international rule of law. Hernaacute;ndez is rather postmodern: tough not pessimistic at all, the faith in the simple equation of lsquo;peace through an always stronger international lawrsquo; has gone—and is bygone. Thus, the analysis is considerably more nuanced and critical. Overall, the judgment of the author remains sound. He never negates the role of the Court in the development of the law—or better: some development of the law. But he puts it in the full context of roughly one hundred years of experience and of present-day conditions. One concern of many governments today is that international legal norms should not excessively limit their room for political manoeuvring in what they consider their own national selfdetermination and local (democratic) choices. International law is binding; but local or national policy needs flexibility. More international law may also mean less such flexibility. Some sense of lsquo;no jail through lawrsquo; has surfaced, while the timehonoured axiom of lsquo;peace through lawrsquo; seems—to some extent unfortunately—at its ever-time nadir. An interesting issue arises in the context of the international community and jus cogens. Did the Court really lsquo;hollow outrsquo; these concepts, as is often claimed and as Hernaacute;ndez claims? Or is it not rather that many authors have since many years and by constant cross-quotations developed such an ideological conception of these notions that their ordinary legal application appears to them as a betrayal oflsquo;communityrsquo;? In other words, is the standpoint of the Court a trashing one, or is the starting point of the mentioned authors open to discussion? It stands to reason that one always sees the beam in the eye of the other—this is a natural aspect of perspective. However, it is also clear that if one starts from the premise—which islegally wrong in the eyes of the present author—according to which jus cogens means a general hierarchy of norms, one may legitimately wonder why the Court did not give precedence to such norms over e.g. jurisdictional immunities. However, perhaps the Court simply did not lsquo;hollow outrsquo; these concepts. It has possibly applied them in their correct contemporary legal clothing. To ascribe further consequences to jus cogens than the voidness of contrary legal acts can obviously be done. But this is a task of the legislator, to be performed through the primary sources of international law, treaties and customary norms. A Court cannot anticipate such tectonic developments with potentially shattering consequences for the concrete legal order (think of what a general hierarchy of jus cogens norms could possibly entail!). This is all the more true in a shaky environment as the one of international relations, prone more than most others to instability and power policies. To instill more community norms providing some primacy for collective interest may be very welcome. But this needs to be organized through a myriad of adjustments calling for great care and generalized reflection, not for the utterance of a purported judicial pronouncement which might remain fully ineffective. Such a considerable development of international law is beyond the pale of what a judge can do. It must also be noted that the Court does not shy away from acceptable legal consequences of such community norms, as shown in the recognition of erga omnes partes obligations and enlarged legal standing in the Belgium v. Senegal case. The Court is therefore not obtuse with regard to community-oriented developments. A further interesting issue is the one of the residual rule of State freedom (Lotus) to which Hernaacute;ndez devotes a chapter (see above). The argument made by Hernaacute;ndez on the possibly undue interference of this principle in the development of international law (lsquo;ossificationrsquo;) and its reliance on the past status quo rather than the dynamic lex ferenda is technically correct. But one has to put this statement in context (the author of the monograph would presumably not disagree with this point). The residual rule will very rarely find application, in particular in a developed legal order like contemporary international law. The freedom rul 剩余内容已隐藏，支付完成后下载完整资料 资料编号：[239641]，资料为PDF文档或Word文档，PDF文档可免费转换为Word |
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