第 33 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  formidable increase of the power of another state (potestas
  tremenda) by acquisition of territory。 Lesion of a less powerful
  country may be involved merely in the condition of a more powerful
  neighbour prior to any action at all; and in the state of nature an
  attack under such circumstances would be warrantable。 This
  international relation is the foundation of the right of
  equilibrium; or of the 〃balance of power;〃 among all the states that
  are in active contiguity to each other。
  The right to go to war is constituted by any overt act of injury。
  This includes any arbitrary retaliation or act of reprisal
  (retorsio) as a satisfaction taken by one people for an offence
  committed by another; without any attempt being made to obtain
  reparation in a peaceful way。 Such an act of retaliation would be
  similar in kind to an outbreak of hostilities without a previous
  declaration of war。 For if there is to be any right at all during
  the state of war; something analogous to a contract must be assumed;
  involving acceptance on the side of the declaration on the other;
  and amounting to the fact that they both will to seek their right in
  this way。
  57。 Right during War。
  The determination of what constitutes right in war; is the most
  difficult problem of the right of nations and international law。 It is
  very difficult even to form a conception of such a right; or to
  think of any law in this lawless state without falling into a
  contradiction。 Inter arma silent leges。* It must then be just the
  right to carry on war according to such principles as render it always
  still possible to pass out of that natural condition of the states
  in their external relations to each other; and to enter into a
  condition of right。
  *'〃In the midst of arms the laws are silent。〃 Cicero。'
  No war of independent states against each other can rightly be a war
  of punishment (bellum punitivum)。 For punishment is only in place
  under the relation of a superior (imperantis) to a subject (subditum);
  and this is not the relation of the states to one another。 Neither can
  an international war be 〃a war of extermination〃 (bellum
  internicinum); nor even 〃a war of subjugation〃 (bellum subjugatorium);
  for this would issue in the moral extinction of a state by its
  people being either fused into one mass with the conquering state;
  or being reduced to slavery。 Not that this necessary means of
  attaining to a condition of peace is itself contradictory to the right
  of a state; but because the idea of the right of nations includes
  merely the conception of an antagonism that is in accordance with
  principles of external freedom; in order that the state may maintain
  what is properly its own; but not that it may acquire a condition
  which; from the aggrandizement of its power; might become
  threatening to other states。
  Defensive measures and means of all kinds are allowable to a state
  that is forced to war; except such as by their use would make the
  subjects using them unfit to be citizens; for the state would thus
  make itself unfit to be regarded as a person capable of
  participating in equal rights in the international relations according
  to the right of nations。 Among these forbidden means are to be
  reckoned the appointment of subjects to act as spies; or engaging
  subjects or even strangers to act as assassins; or poisoners (in which
  class might well be included the so called sharpshooters who lurk in
  ambush for individuals); or even employing agents to spread false
  news。 In a word; it is forbidden to use any such malignant and
  perfidious means as would destroy the confidence which would be
  requisite to establish a lasting peace thereafter。
  It is permissible in war to impose exactions and contributions
  upon a conquered enemy; but it is not legitimate to plunder the people
  in the way of forcibly depriving individuals of their property。 For
  this would be robbery; seeing it was not the conquered people but
  the state under whose government they were placed that carried on
  the war by means of them。 All exactions should be raised by regular
  requisition; and receipts ought to be given for them; in order that
  when peace is restored the burden imposed on the country or the
  province may be proportionately borne。
  58。 Right after War。
  The right that follows after war; begins at the moment of the treaty
  of peace and refers to the consequences of the war。 The conqueror lays
  down the conditions under which he will agree with the conquered power
  to form the conclusion of peace。 Treaties are drawn up; not indeed
  according to any right that it pertains to him to protect; on
  account of an alleged lesion by his opponent; but as taking this
  question upon himself; he bases the right to decide it upon his own
  power。 Hence the conqueror may not demand restitution of the cost of
  the war; because he would then have to declare the war of his opponent
  to be unjust。 And even although he should adopt such an argument; he
  is not entitled to apply it; because he would have to declare the
  war to be punitive; and he would thus in turn inflict an injury。 To
  this right belongs also the exchange of prisoners; which is to be
  carried out without ransom and without regard to equality of numbers。
  Neither the conquered state nor its subjects lose their political
  liberty by conquest of the country; so as that the former should be
  degraded to a colony; or the latter to slaves; for otherwise it
  would have been a penal war; which is contradictory in itself。 A
  colony or a province is constituted by a people which has its own
  constitution; legislation; and territory; where persons belonging to
  another state are merely strangers; but which is nevertheless
  subject to the supreme executive power of another state。 This other
  state is called the mother…country。 It is ruled as a daughter; but has
  at the same time its own form of government; as in a separate
  parliament under the presidency of a viceroy (civitas hybrida)。 Such
  was Athens in relation to different islands; and such is at present
  (1796) the relation of Great Britain to Ireland。
  Still less can slavery be deduced as a rightful institution; from
  the conquest of a people in war; for this would assume that the war
  was of a punitive nature。 And least of all can a basis be found in war
  for a hereditary slavery; which is absurd in itself; since guilt
  cannot be inherited from the criminality of another。
  Further; that an amnesty is involved in the conclusion of a treaty
  of peace is already implied in the very idea of a peace。
  59。 The Rights of Peace。
  The rights of peace are:
  1。 The right to be in peace when war is in the neighbourhood; or the
  right of neutrality。
  2。 The right to have peace secured so that it may continue when it
  has been concluded; that is; the right of guarantee。
  3。 The right of the several states to enter into a mutual
  alliance; so as to defend themselves in common against all external or
  even internal attacks。 This right of federation; however; does not
  extend to the formation of any league for external aggression or
  internal aggrandizement。
  60。 Right as against an Unjust Enemy。
  The right of a state against an unjust enemy has no limits; at least
  in respect of quality as distinguished from quantity or degree。 In
  other words; the injured state may use… not; indeed any means; but
  yet… all those means that are permissible and in reasonable measure in
  so far as they are in its power; in order to assert its right to
  what is its own。 But what then is an unjust enemy according to the
  conceptions of the right of nations; when; as holds generally of the
  state of nature; every state is judge in its own cause? It is one
  whose publicly expressed will; whether in word or deed; betrays a
  maxim which; if it were taken as a universal rule; would make a
  state of peace among the nations impossible; and would necessarily
  perpetuate the state of nature。 Such is the violation of public
  treaties; with regard to which it may be assumed that any such
  violation concerns all nations by threatening their freedom; and
  that they are thus summoned to unite against such a wrong and to
  take away the power of committing it。 But this does not include the
  right to partition and appropriate the country; so as to make a
  state as it were disappear from the earth; for this would be an
  injustice to the people of that state; who cannot lose their
  original right to unite into a commonwealth; and to adopt such a new
  constitution as by its nature would be unfavourable to the inclination
  for war。
  Further; it may be said that the expression 〃an unjust enemy in
  the state of nature〃 is pleonastic; for the state of nature is
  itself a state of injustice。 A just enemy would be one to whom I would
  do wrong in offering resistance; but such a one would really not be my
  enemy。
  61。