對領事探視司法審查制度的反思：基於對國際法院判决的研究

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

領事探視是派遣國國民“被拘禁情勢”下司法運轉的關鍵節點，國際法院審决的一系列案件對領事探視的定性及其司法審查制度的設計具有重要意義。但是，判决作出後存在執行難現象，接受國或質疑審查標準拒絕遵守判决，或適用本國法律阻礙審查的有效運行。領事探視的司法審查涉及國際法和國內法兩個層面，以損害作為審查標準可彌合國際法和國內法的罅隙，基於公平考量、考察法律實踐應對證明責任進行合理分配。領事探視與國家主權利益存在衝突，革新領事探視的司法審查制度有賴於國家間互惠關係的建立，雙邊條約為完善領事探視制度留下法律空間，具體規則應立足於對現有法律障礙的消解。

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.