神戸大学法学部 国際法概論 ２００１年度 ２００１年６月２９日
助教授 濵本 正太郎
試験問題例 １５
次々回講義（７月６日）までに添付ファイルで送られた答案は添削してお返しします。
＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊＊
以下に、講義で言及した自由権規約人権委員会の一般的見解２４とそれに対するイギリスの反論を挙げる。両者を比較検討し、委員会の立場は国際法上正当化可能かどうか論ぜよ。結論の如何は評価の対象としない。なお、文中の”Covenant”とは自由権規約のことである。
General Comment No. 24, 11
November 1994, U.N. Doc. CCPR/C/21/Rev.1/Add.6, paras. 17-18.
[I]t is the Vienna Convention on the Law
of Treaties that provides the definition of reservations and also the
application of the object and purpose test in the absence of other specific
provisions. But
the Committee believes that its provisions on the role of State objections in relation
to reservations are inappropriate to address the problem of reservations to
human rights treaties. Such
treaties, and the Covenant specifically, are not a web of inter-State exchanges
of mutual obligations. They
concern the endowment of individuals with rights… [B]ecause the operation of
the classic rules on reservations is so inadequate for the Covenant, States
have often not seen any legal interest in or need to object to reservations… In
the view of the Committee, because of the special characteristics of the
Covenant as a human rights treaty, it is open to question what effect
objections have between States inter se… It necessarily falls to the
Committee to determine whether a specific reservation is compatible with the
object and purpose of the Covenant. This is in part because, as indicated above, it is an
inappropriate task for States parties in relation to human rights treaties, and
in part because it is a task that the Committee cannot avoid in the performance
of its functions.
イギリスの反論 Report of the Human Rights
Committee, 1996, U.N.Doc. A/50/40.
The modern law of reservations to multilateral
treaties… owes its origin to the Advisory Opinion of the International Court of
Justice of 28 May 1951 on Reservations to the Genocide Convention. The Genocide Convention is itself… a
human rights treaty concluded for the benefit of persons within the
jurisdiction of the States Parties to it.
The United Kingdom does not accordingly believe that rules different
from those foreshadowed by the International Court and in due course embodied
in the Vienna Convention on the Law of Treaties are required to enable the
international community to cope with reservations to human rights treaties… Even if it were the case that the law
on reservations is inappropriate to address the problem of reservations to
human rights treaties, this would not of itself give rise to a competence or
power in the Committee except to the extent provided for in the Covenant… The
test of incompatibility is and should be an objective one, in which the views
of competent third parties would carry weight. Ultimately however it is a matter for the treaty parties
themselves and, while the presence or absence of individual State
"objections" should not be decisive in relation to an objective standard,
it would be surprising to find a reservation validly stigmatized as incompatible
with the object and purpose of the Covenant if none of the Parties had taken
exception to it on that ground.