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1、第二章 国际法的基本原则（经典案例）* 规制武力使用的法律的演进Peter Malanczuk, Akehursts Modern Introduction to International Law306-309 (7th ed. 1996)Lawful and unlawful wars: developments before 1945For many centuries Western European attitudes towards the legality of war were dominated by the teachings of the Roman Catholic C
2、hurch. One of the first theologians to write on the subject was St Augustine (AD 354-430), who said:Just wars are usually defined as those which avenge injuries, when the nation or city against which warlike action is to be directed has neglected either to punish wrongs committed by its own citizens
3、 or to restore what has been unjustly taken by it. Further, that kind of war is undoubtedly just which God Himself ordains.These ideas continued to be accepted for over 1,000 years. War was regarded as a means of obtaining reparation for a prior illegal act committed by the other side (the reparatio
4、n sought had to be proportional to the seriousness of the illegality). In addition, wars against unbelievers and heretics were sometimes (but not always) regarded as being commanded by God.In the late sixteenth century the distinction between just and unjust wars began to break down. Theologians wer
5、e particularly concerned with the state of mans conscience, and admitted that each side would be blameless if it genuinely believed that it was in the right, even though one of the sides might have been objectively in the wrong (this was known as the doctrine of probabilism). Moreover, the category
6、of just wars (belium juslum) began to be dangerously extended. Although seventeenth century writers like Hugo Grotius made some attempt to re-establish traditional doctrines, the eighteenth and nineteenth centuries produced an almost complete abandonment of the distinction between legal and illegal
7、wars. Wars were said to be justified if they were fought for the defense of certain vital interests, but each state remained the sole judge of its vital interests, which were never defined with any attempt at precision. Indeed, the whole doctrine of vital interests probably constituted, not a legal
8、criterion of the legality of war, but a source for political justifications and excuses, to be used for propaganda purposes. The most realistic view of the customary law in the classical period of international law, as it came to stand towards the end of the nineteenth century, is that it placed no
9、limits on the right of states to resort to war. . . .During the nineteenth century, the balance-of-power system was fairly successful in making wars rare. The expense, destructiveness and long duration of wars, and the risks of defeat, meant that wars were not worth fighting unless a state stood to
10、gain a large amount of territory by going to war; but a state which seized too much territory threatened the whole of Europe because it upset the balance of power, and states were usually deterred from attempting to seize large areas of territory by the knowledge that such an attempt would unite the
11、 rest of Europe against them. . . .The unprecedented suffering of the First World War caused a revolutionary change in attitudes towards war. Nowadays people (at least in Europe) are accustomed to regard war as an appalling evil. It is hard to realize that during the eighteenth and nineteenth centur
12、ies most people (except for a few pacifists) regarded war in much the same way as they regarded a hard winteruncomfortable, certainly, but part of the settled order of things, and providing excellent opportunities for exhilarating sport; even the wounded soldier did not regard war as wrong, any more
13、 than the skier with a broken leg regards skiing as wrong. All this changed after 1914, but the law took some time to catch up with public opinion. The Covenant of the League of Nations, signed in 1919, did not prohibit war altogether; instead, Article 12(1) provided:The Members of the League agree
14、that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial de
15、cision, or the report by the Council.(The three-month period of delay was intended to allow time for passions to die down; if states had observed a three-month delay after the assassination of the Archduke Franz Ferdinand in 1914, it is possible that the First World War could have been averted.) In
16、addition, members of the League agreed not to go to war with members complying with an arbitral award or judicial decision.During the 1920s various efforts were made to fill the gaps in the Covenant that is, to transform the Covenants partial prohibition of war into a total prohibition of war. These efforts culminated in the General Treaty for the Renunciation of War (otherwise known as the Kellogg-Briand Pact, or the Pact of Paris), signed in 1928. A
