國際法院首位中國籍法官徐謨（1893-1956）：生平及貢獻（下）

The Very First Chinese Judge Hsu Mo (1893-1956) of the InternationalCourt of Justice: His Life and Contribution

本文旨在介紹中國籍首位國際法院法官徐謨的生平經歷及其對國際法與外交實務之貢獻。徐謨，字叔謨，江蘇吳縣人，中國現代國際法學家、政治學學者，中國現代史上很有影響力的傑出外交官。童年就學於吳縣當地的蘭陵學堂，11歲時，隨父親赴上海南洋公學附屬小學讀書，後來升入南洋公學。1914-1917 年北洋大學法科畢業，獲法學學士學位，曾被推選為國語講演會會長、英語辯論會會長。後由天津回到江蘇，在江蘇省省立揚州第八中學任英語教師。1918 年通過北京司法官考試，1919 年9 月，應外交官招聘考試，以第1名被錄取。1920年4月，被派往駐美使館任隨員，並在喬治華盛頓大學就讀，1922年獲法學碩士學位。見習期間曾於1921年任華盛頓會議中國代表團秘書，1921-1922 年，商議第一次世界大戰戰後事宜的華盛頓會議上，擔任中國代表團秘書。1922年7月回國，受聘於天津南開大學，在政治系擔任法學、政治學教授。1925-1926年兼文科主任，並兼天津《益世報》編輯。1926年上海特區法院成立，被選任上海公共租界臨時法庭推事、上海地方法庭刑庭庭長。1927年奉調任鎮江地方法庭庭長。1928-1941 年於外交部服務。1928 年3 月，任國民政府外交部參事；4 月調任外交部第一司（掌國際事務）司長；6 月調任第三司（掌歐美各國事務）司長。任外交部參事兼部長助理。1929年1月，任外交部歐美司司長；5月兼任外交部特派上海交涉員、廢除上海治外法權特別外交專員，代亞洲司司長。1931-1940年，先後擔任南京國民政府外交部代理常務次長、常務次長。1932年6月，任政務次長等職，且兼任中央政治學校外交系首任系主任，因工作忙碌，僅講授「外交文牘」一門課。1933年10月，任考試院典試委員會高等考試典試委員會委員。於1932- 1941年間中國對外政策的制定和執行有重大貢獻。1941年7月-1944年派駐澳大利亞公使，1943年獲墨爾本大學（University of Melbourne）授予名譽法學博士學位。1944 年11 月-1946 年，調任駐土耳其大使。1945 年4 月赴華盛頓參加聯合國法學家委員會（Committee of Jurists）工作，並參與起草《國際法院規約》及《聯合國憲章》。4-6 月任出席聯合國國際組織會議中國代表團顧問。1946 年10 月當選為聯合國國際法院首任中國籍法官。1948年任職3年後，又連選連任。1946-1956年，長期擔任聯合國國際法院法官職務。1956年赴西班牙參加國際法學會年會，當選為國際法學會副會長。6 月28 日在荷蘭海牙逝世，終年63歲。綜其一生，徐謨為人細心謹慎，處世謙和，待人寬厚，學養俱優，聲名顯赫。其主要貢獻分為三個方面：第一方面，曾經參與廢除不平等條約中的治外法權、上海會審公廨、收回上海共租界領事法院、租借地等及管轄在華外國人等，渠對外交部之最大貢獻係人事行政的制度化，建立外交部會計制度及現代中國外交文牘的規範；第二方面，係中央政治學校外交學系設置，包括早期課程設計，重視外國語文、外交文牘及國際法，建立並奠定近百年來培養職業外交官之制度，為國家培育出許多外交實務及外交學術的人才；協力廠商面，係參與國際法院之創建，對中國國際地位的提高及國際法的逐漸發展皆有重大貢獻，渠對國際法院案件之最大貢獻是審案認真，在判決中提出多項國際法學上的寶貴意見，並能以身作則，樹立法官公正不阿，維護國際法院司法獨立之楷模。徐謨外交實務經驗非常豐富，外交思維尤其細緻，注重國際法、現實與外交利益之妥協，善於調和爭端當事國之間的主要利益，且為司法解決國際爭端提供的調解現實利益之外交智慧，其品德學養深受各國法官之敬重。

Throughout his childhood, Hsu Mo could divine the future by means of special incantations which conjured up images displayed upon the waters inside a porcelain basin. He saw the end of his life, and at his passing, he saw many foreign dignitaries wearing top hats and swallow tails. Consequently, when he died still in office the distinguished attendants of his funeral all wore top hats and coattails. This paper depicts Judge Hsu Mo's to international law practices in his many capacities in government, academia, and the International Court of Justice. The paper provides informative insights into Hsu's role of the ICJ, as well as his views in various individual and separate opinions. Judge Hsu, one of China's famous jurists, diplomat, professor and government official, was born in Jiangsu Province, China, on 22 October 1893. After he graduated from Peiyang University, Tianjin, he continued his studies abroad, earning an LL.B. and M.A. at George Washington University and afterwards receiving an LL.D. from Melbourne University. After passing the Judicial Examination in Beijing, he passed the Diplomatic and Consular Service Examinations with highest honors in 1919. That same year he entered the diplomatic service inBeijing and from 1922-1925 held a chair of International Law and International Relations, then served as Dean of the College of Arts at Nankai niversity, Tianjin. He published and contributed leading reviews to Chinese newspapers and magazines on various political and legal topical issues. In 1926 Hsu Mo was appointed Judge, then Presiding Judge of the Criminal Chamber of the Shanghai District Court and finally became Court President of the District Court in Chinkiang. He later joined the Ministry of Foreign Affairs, first as Counselor, in 1928, then as Director of the European- American Affairs Department and Director of the Asiatic Department, then from 1931 to 1940 as Vice-Minister. At the same time he was appointed Chairman of the Department of Diplomacy of the Central Political Institute (1930-1939) which is now National Chengchi University. Subsequently, Hsu was Envoy Extraordinary and Minister Plenipotentiary to Australia (1941-1944) and Ambassador Extraordinary and Plenipotentiary to Turkey (1945-1946). In the international sphere he first earned himself a reputation in 1945 in Washington by working with the United Nations Committee of Jurists that prepared the Draft Statute of what was to become the Statute of International Court of Justice. He drafted the section of the United Nations Charter on disputes. He was deeply convinced of the need for China to regain international esteem through International Organizations, and was an Adviser to the Chinese delegation to the United Nations Conference on International Organization in San Francisco, April to June 1945. On 6 February 1946 he was elected unanimously to the bench of the International Court of Justice located at The Hague, where he was among the Judges to be elected for a three year term under Article 13 of the ICJ Statute. However, he was re-elected in 1949, the very year the rival People’s Republic of China was proclaimed and the government of the Republic of China were driven from the of the Republic of China mainland to Taiwan. Regardless of this, the authorities in Taiwan remained for many years the sole China representative at the United Nations. During his ten years at the Court, the reputedly stern and commanding Hsu Mo delivered one Declaration of Dissent and one Separate Opinion, two (Joint) Dissenting Opinions. An overview of Judge Hsu Mo's career, which spanned a period of over thirty years, reveals a personal character of attentive self-cultivation andrigorous scholarship that earned the deep respect of his judicial colleagues. He was meticulous, proceeding in a careful manner and withdis cretion, treating all people amiably. His biggest contributions to the Ministry of Foreign Affairs were the institutionalization of a system of human resource management, the establishment of a financial accountability and the normalization of the official diplomatic document standard. In education his greatest contribution as the founding chairman of the Department of Diplomacy at National Chengchi University, was the training of young Chinese career diplomats for the Republic of China and training scholars of international affairs. Most of the courses now taught at the department were formulated as per his instruction. His greatest contribution to the judgments of the International Court of Justice was made in numerous valuable legal adjurations. a Declaration, Separate Opinion, Joint Dissenting Opinion as well as Dissenting Opinion., He also set a good precedent, by creating a model of impartial judges to maintain judicial independence at the Court, for judicial settlement of international disputes, he provided the Court withpr actical realistic benefits compromised from the wisdom of his diplomatic experience. In 1951 during the Anglo-Iranian Oil Co. Case, his ex-pupil, Chinese Ambassador of Iran, Hsu Shao-chang sent a letter to persuade Judge Hsu Mo, asking him to support Iranian interests. Hsu Mo received the letter, but did not open it; he deposited it with the registrar, and only opened it after the conclusion of the case. This incident is held as an example of the embodiment of the key principles of judiciary independence and impartiality. Judge Hsu Mo served on the Court until his death, almost two years before his term was due to expire.