对领事探视司法审查制度的反思:基于对国际法院判决的研究

Reflections on Judicial Review of Consular Notification and Access:Based on Query of ICJ Judgments

领事探视是派遣国国民“被拘禁情势”下司法运转的关键节点,国际法院审决的一系列案件对领事探视的定性及其司法审查制度的设计具有重要意义。但是,判决作出后存在执行难现象,接受国或质疑审查标准拒绝遵守判决,或适用本国法律阻碍审查的有效运行。领事探视的司法审查涉及国际法和国内法两个层面,以损害作为审查标准可弥合国际法和国内法的罅隙,基于公平考量、考察法律实践应对证明责任进行合理分配。领事探视与国家主权利益存在冲突,革新领事探视的司法审查制度有赖于国家间互惠关系的建立,双边条约为完善领事探视制度留下法律空间,具体规则应立足于对现有法律障碍的消解。

Consular visits is regarded as a key procedure in the operation of justice in the "detention situation" of sending nationals.A series of cases adjudicated by the International Court of Justice are of great significance to the definition of consular visits and the design of its judicial review system.However,after making judgments,there are still obstacles in enforcement.The recipient country may question the judging standards and refuse to comply with the adjudication,or the recipient country’s applicable domestic laws may hinder the effective operation of the adjudication.The judicial review of consular notification involves two levels of international law and domestic law.Taking damage as the review standard,it aims to bridge the gap between international law and domestic law.Based on the principle of fairness,it is to consider and review the legal practice that the burden of proof must be allocation Reasonable.There may be conflicts between consular visits and national sovereign interests.Therefore,the reform of the judicial review system for consular visits depends on the establishment of mutual trust between countries,and it is necessary to leave legal space in bilateral treaties for the improvement of the consular visit system.Meanwhile,relevant measures should be based on the elimination of existing legal obstacles to improve specific rules.