ついでに井筒編の「中立地帯」(Neutral Zone)これもアウトですね。 おそらくこれまでの人道国際法、戦争法の多国間条約で、「中立地帯」 という日本語訳語が使われているのは1949年ジュネーブ4条約の 第4条約(文民条約)が唯一かと思いますが、これ原文はNEUTRALIZED ZONEです。 http://www.icrc.org/ihl.nsf/WebKWT?OpenView ちなみにゲルハルト・フォン・グラーン(w 退役教授の『諸国間の法』の索引でNeutral Zoneを 探すと、クウェート/サウジアラビア間の『中立地帯」しか出てきません。(Gerhard von Glahn: "Law Among Nations-- An Introduction to Public International Law" 6th ed., 1992 p. 404 )
はあ、なるほど戦前は「伝統的国際法(traditional international law)」の 支配する時代だったということですか。
これにはまったく同感です。佐藤和男先生が青山学院大学最終講義で 絶賛されておられたアントニオ・カッセーゼもそう言ってますね。 ただし、戦前といっても第二次世界大戦じゃあなく、第一次世界大戦前 ですが。まあ、そいったところで合意成立ということで今後ともよろしく。 ============= In addition, in traditional international law, that is, the law which came into being and governed international relations between the Peace of Westphalia of 1648 and the First World War (see 2.3), resort to force was lawful both to enforce a right and to protect economic, political, or other interests. This state of affairs greatly favoured powerful States. As we shall see, some improvements, including the ban on the use of force by individual States, are to be found in the present international system (2.5). ___________ ANTONIO CASSESE:”INTERNATIONAL LAW”,OXFORD UNIVERSITY PRESS 2001 6頁
オッペンハイム国際法の続きですが、 >>631 >>591 で、中立侵犯の法効果についての357パラグラフと、戦域からの中立地帯の 除外についての72パラグラフ、両方途中で終わってましたね。 357パラグラフ以下を先に片付けてしまいます。 ========================== オッペンハイム『国際法』第2巻/第3版(1921年) 495頁本文続き [Violation in contradistinction to End of Neutrality.] § 358. Mere violation of neutrality must not be confounded with the ending of neutrality,<1> for neither a violation on the part of a neutrala nor a mere violation on the part of a belligerent ipso facto brings neutrality to an end. If correctly viewed, the condition of neutrality continues to exist between a neutral and a belligerent in spite of a violation of neutrality. A violation of neutrality is nothing more than a breach of a duty deriving from the condition of neutrality. This applies not only to violations of neutrality by negligence, but also to intentional violations. Even in an extreme case, __________ 495頁注 1 See above, § 312. 2 But this is almost everywhere asserted, as the distinction between the violation of the duty of impartiality incumbent upon neutrals and the ending of neutrality is usually not made.
以下495頁 in which the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. For there is no violation of neutrality so great as to oblige the offended party to declare war in answer to it, such party always having the choice whether he will keep up the condition of neutrality or not. But this applies only to mere violations of neutrality, and not to a declaration of war or hostilities. Hostilities are acts of war, and bring neutrality to an end ;<1> and a declaration of war brings neutrality to an end even before the outbreak of hostilities. _______________ 1 They have been characterised in contradistinction to mere violations above in § 320. ===============
これは誰の文章だとお思いですか?今日はオッペンハイムではないです。 隠れ戦数論ファンを含む戦数論批判者おなじみ、カール・リューダーの 有名な論文の一節です。(C.Lueder : Das Landkriegsrecht im Besonderen, in 'Handbuch des Voelkerrechts, iv.Bd. Ed. Franz von Holxendorff, 1889 )
オッペンハイム『国際法』第2巻/第3版(1921) 495頁本文続き [Violation in contradistinction to End of Neutrality.] § 359. Violations of neutrality, whether committed by a neutral against a belligerent or by a belligerent against a neutral, are international delinquencies.<2>. They may at once be repulsed, and the offended party may require the offender to make reparation, and, if this is refused, may take such measures as he thinks adequate to exact the necessary reparation.<3> If the violation is only slight and unimportant, the offended State will often merely complain. If, on the other hand, the violation is very substantial and grave, the offended State will perhaps at once declare that it considers itself at war with the offender. In such a case, it is not the violation of neutrality which brings neutrality to an end, but the declaration of the offended State that it considers the violation to be of so grave a character as to oblige it to regard itself at war with the offender. That a violation of neutrality, like any other international delinquency, can only be committed by malice or culpable negligence,<4> and that it can be committed _________________ 495頁注 1 They have been characterised in contradistinction to mere violations above in § 320. 2See above, vol. i. § 151. 3See above, vol. i. § 156. 4See above, vol. i. § 154.
今日は残務処理のほうから。 交戦国の将兵が、その政府の許可無く中立侵犯を行った場合交戦国政府の 賠償責任はどうなるかという法技術上の問題、続きです。 496頁本文 496BELLIGERENTS AND NEUTEALS through a State refusing to comply with the consequences of its 'vicarious' responsibility for acts of its agents or subjects,<1> is a matter of course. Thus, if a belligerent fleet attacks enemy vessels in neutral territorial waters without an order from its Government, the latter bears 'vicarious' responsibility for this violation of neutral territory by its fleet. If the Government concerned refuses to disown the act of its fleet, and to make the necessary reparation, this 'vicarious' responsibility turns into 'original' responsibility, for a case of violation of neutrality and an international delinquency has then arisen. The same is valid if an agent of a neutral State, without an order of his Government, commits such an act as would constitute a violation of neutrality in case it were ordered by the Government ; for instance, if the head of a province of a neutral State, without authorisation from his Government, allows forces of a belligerent to march through the neutral province.
496頁続き [Neutrals not to acquisce in Violations of Neutrality committed by a Belligerent] § 360. It is entirely within the discretion of a belligerent whether he will acquiesce in a violation of neutrality committed by a neutral in favour of the other belligerent. On the other hand, a neutral may not exercise the same discretion regarding a violation of neutrality committed by one belligerent and detrimental to the other. His duty of impartiality rather obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation ; e.g. to repulse an attack by men-of-war of a belligerent on enemy vessels in neutral ports. Thus Article 3 of Hague Convention xin. enacts: 'When a ship has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers
497頁本文 VIOLATION OF NEUTRALITY497 and crew, and to intern the prize crew.' But in case he could not prevent and repulse a violation of his neutrality, his same duty of impartiality obliges him to exact due reparation from the offender ;<1> for otherwise he would favour the one party to the detriment of the other. If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.<2> For instance, if belligerent men- of-war seize enemy vessels in the ports of a neutral, and if that neutral, who could not or did not prevent this, exacts no reparation from the belligerent concerned, the other party may make the neutral responsible for the losses sustained.
[ Cases of The General Armstrong and The Dresden.] § 361. Some writers<3> maintain that a neutral is freed from responsibility for a violation of neutrality committed by a belligerent in attacking enemy forces in neutral territory, if the forces attacked, instead of trusting for protection or redress to the neutral, defend themselves against the attack. This rule is adopted from the arbitral award in the case of The General Armstrong. In 1814, during war between Great Britain
4. ' Proviso regarding safeguard: in any of these cases abstaining from hostile acts and not attempting to escape '
1621 A man who is in the power of his adversary may be tempted to resume combat if the occasion arises. (31) Another may be tempted to feign a surrender in order to gain an advantage, which constitutes an act of perfidy. (32) ....以下 延々と続く。
>>722 > スマソ。赤十字国際委員会の条約逐条コメンタリーのサイト、貼付けようとして忘れてた。 > > ttp://www.icrc.org/ihl.nsf/b466ed681ddfcfd241256739003e6368/1ed52e8de42bed21c12563cd0043335f?OpenDocument > > 真ん中へんの、この辺りからが重要ですね。 > > 4. ' Proviso regarding safeguard: in any of these cases abstaining from hostile acts > and not attempting to escape ' > > 1621 A man who is in the power of his adversary may be tempted to resume > combat if the occasion arises. (31) Another may be tempted to feign a surrender > in order to gain an advantage, which constitutes an act of perfidy. (32) ....以下 > 延々と続く。
NankingMassacre? 誰、それ? 昨日の続きの残務処理です。 オッペンハイム『国際法』第2巻/第3版(1921) 497頁注 <1> See Articles 25 and 26 of Convention xin. This duty is nowadays universally recognised; but before the nineteenth century it did not exist, although the rule that belligerents must not commit hostilities on neutral territory, and in particular in neutral ports and waters, was well recognised. That, in spite of its recognition, this rule was in the eighteenth century frequently infringed by commanders of belligerent fleets, may be illustrated by many cases. Thus, for instance, in 1793, the French frigate Modeste was captured in the harbour of Genoa by two British men-of-war (see Hall, § 220); and in 1801, during war against Sweden, a British frigate captured the Freden and three other Swedish vessels in the Norwegian harbour of Oster-Risoer (see Ortolan, ii. pp. 411-418). <2> It has been pointed out above, § 319, that in case one belligerent resorts to measures which aim at suppressing intercourse between another belligerent and neutrals and the neutrals do not prevent the carrying out of such measures, the injured belligerent is justified in resorting to reprisals and in himself preventing intercourse between neutrals and the first-mentioned belligerent. <3> See, for instance, Hall, § 228, and Geffcken in Holtzendarff, iv. p. 701.
オッペンハイム『国際法』第2巻/第3版(1921) 498 BELLIGERENTS AND NEUTRALS 498頁本文 and the United States of America, the American privateer General Armstrong, lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack by an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, because the vessel chose to defend herself, instead of demanding protection from the Portuguese authorities.<1> It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.<2> However that may be, cases similar to that of The General Armstrong occurred during the World War. Thus in March 1915 the German cruiser Dresden sought refuge within the territorial waters of Chili near the island of Juan Fernandez, and asked to be allowed to remain there for eight days in order to effect repairs. The request was refused, and the Dresden was ordered to depart within twenty-four hours. However, she did not depart, and received notification that she was to be interned. Meanwhile two British cruisers, Kent and Glasgow, came up and opened fire. The Dresden hoisted a flag of truce, and despatched one of her officers to inform the Glasgow that she was in neutral territorial waters. In reply, the British squadron called 499頁本文へ続く