The U.S. diplomats complained to the British about what they perceived to be an unjustified destruction of the Caroline. The dispute was eventually resolved through a series of diplomatic notes exchanged between U.S. Secretary of State Daniel Webster and British Minister to Washington Henry Stephen Fox, in 1841. In one of his letters, Secretary of State Webster established four criteria for justifiable preemptive use of force. In Webster′s words, justifiable preemptive attack had to be:(1) “overwhelming” in its necessity; (2) leaving “no choice of means”; (3) facing so imminent a threat that there is “no moment for deliberation”; and (4) proportional. While acknowledging the weight and relevance of these factors, Lord Ashburton, the new British envoy, argued in his reply to Webster that the British attack on the Caroline did, in fact, meet these criteria. Webster, while not admitting that the incident had been justified, accepted the incongruous British apology.
美国外交官纷纷对英国人无端毁坏卡罗琳号一事表示责难,并质问对方作何解释。直到1841年,在美国国务卿丹尼尔-韦伯斯特与英国驻美大使亨利-史蒂芬-福克斯交换系列外交通牒后,这场争端才告平息。在其中一份通牒中,韦伯斯特提出了先占正当性的四条准则。在韦伯斯特看来,先发制人须得在以下四种情况下发生才算正当:(1).势在必行(2). 别无选择 (3). 遭遇无暇斟酌的紧急威胁 (4). 与以上相当的他种情况。虽然承认这些因素重要且实用,新任英国特使阿什伯顿男爵在回应韦伯斯特时争论道,英国人对卡罗琳号的攻击事实上非常符合这些准则。韦伯斯特虽仍不认可这一事件的正当性,也只好暂时接受英方有失原则的道歉。
Colonel MacNab and Commander Drew would have been fully justified in arresting or expelling the rebels on Navy Island—British-Canadian territory after all—and destroying the Caroline if they had found it there. But the most comprehensive modern history of the events surrounding the Caroline incident correctly concludes that the British-Canadian attack “hardly met the requirements of self-defense set forth in Webster′s note of April 24, 1841.” We can readily see why. First, the British attack on the Caroline was by no means necessary. The British had significantly superior forces; MacNab′s forces in Chippewa greatly outnumbered Mackenzie′s on Navy Island, with MacNab′s forces at 2,500 while estimates of Mackenzie′s forces ranged from 150 to 800.Second, the U.S. government did not intend to pose a threat to Canada. Instead, President Van Buren had instructed district attorneys to prosecute violators of U.S. neutrality laws and customs officers to restrict incursions. While these efforts were not effective, there was nonetheless goodwill in Washington to improve relations with Great Britain. Third, there was no imminent threat to British-Canadian forces. Government forces earlier in the same month had routed the rebels at Montgomery′s Tavern near Toronto. When Drew failed to find the Caroline at Navy Island, he could have returned for further orders—as some of his party did. Moreover, the provision of supplies to the Patriots by the Caroline did not pose an immediate threat, and there was no other evidence of an impending attack by the Patriots.
麦克纳上校和德鲁指导员原本可以完全正当地逮捕或者驱逐海军岛上的叛军(那毕竟是英属加拿大的领地),并且损毁卡罗琳号,如果她停在那儿的话。但是,现代史中参照卡罗琳号事件的众多其他事件都印证了英属加拿大人的先发制人很难满足韦伯斯特于1841年4月24日通牒中提出的自卫准则。原因很简单:首先,英国人对卡罗琳号的攻击绝非必要。英军在武力上相当优越;麦克纳在齐佩威的兵力远胜麦肯兹在海军岛的兵力(麦克纳有2500人马,而麦肯兹只有约摸150到800人马)。其次,美国政府也无意威胁加拿大。正相反,范布伦总统早前就授令地方检察官严惩触犯美国中立法规者,并授令海关官员严禁外侵。虽然这些举措并不奏效,至少也表明了美国有改善对英关系的美意。再次,当时英属加拿大军并未遭遇紧急威胁。其实,政府军在当月早就于多伦多边陲的蒙哥马利酒馆策划了叛乱。当德鲁未能在海军岛找到卡罗琳号时,他本可以像他的一些同谋那样退回待命。而且,通过卡罗琳号向爱国者党人供给物资并未造成紧急威胁,也没有其他表明爱国者党人即将袭击的迹象。
Thus even the Caroline incident itself did not meet the standards for which the case has become famous. The Caroline rules were instead constructed to assert American sovereignty. Despite the gap between the facts and the rules, Webster accepted the British statement (and regrets) in order to restore amity in U.S.-British relations so that more important issues—the northern frontier boundary, for instance—could be addressed. Nevertheless, the criteria delineated in Webster′s letter have become the gold standard for justifiable preemption in international law. Indeed, these criteria were applied by the Nuremberg Tribunal to deny Hitler′s claim to justifiable preemption in attacking Norway in 1940 and by the Tokyo Tribunal to justify the Netherlands′ preemptive declaration of war against Japan in 1941.The Caroline standards for imminence were also invoked when the Security Council condemned Israel′s preemptive strike against the Iraqi Osirak nuclear reactor in 1981.While there are good reasons for all three of these judgments, it is not clear that either passing or failing the Caroline test is one of them.
因此,即使是卡罗琳号事件本身都尚未满足这套它赖以成名的准则。卡罗琳号准则倒是被完善用来维护美国主权。尽管事实与准则之间存在差距,为了修复与英国的友好关系,韦伯斯特接受了英国的相关声明(与悔意),从而便于处理诸如北部国界线之类更重大的议题。然而,韦伯斯特通牒中描绘的准则业已成为国际法中关于先发制人正当性的黄金标准。事实上,在纽伦堡法庭上就是用这套准则驳斥希特勒声称1940对挪威入侵的正当性,在东京法庭证明荷兰1941年率先对日宣战的正当性时也用到了这套准则。安理会在谴责以色列1981年对伊拉克奥希拉克核反应堆侵袭的不公时,就援引了卡罗琳号准则中的紧急准则。尽管裁决上述三个案例有很多充分的根据,卡罗琳号准则能否成为其中之一却不易断定。
The Caroline standard is too extreme. It is not clear that an attack on U.S. territory was necessary as a matter of imminent self-defense. It is clear that the actual attack was not justified by the principles Webster and Ash-burton promulgated. Moreover, the principles themselves are deeply flawed. They justify reflex defensive reactions to imminent threats and nothing more. For instance, they do not leave enough time for states to protect their legitimate interests in self-defense when they still do have some “choice of means,” albeit no peaceful ones, and some “time to deliberate” among the dangerous choices left. Extreme Caroline conditions are rarely found in reality. With the possible exception of the Netherlands′ declaration of war on Japan on December 8, 1941, accepted by the Tokyo Tribunal, I have not found one example of Caroline rules clearly validating an act of preemption. It is not irrelevant that the classic model for justifiable preemption was nothing of the sort. Indeed, the Caroline case better illustrates the difficulty of drawing a clear line separating imminent preemption from disallowed prevention.
其实,卡罗琳号准则过于极端化。比如,一场发生在美国本土的袭击是否一定属于紧急自卫就很难界定。不过可以肯定的是,现时的袭击不会被证为正当。而且,这一准则本身也存在很大缺陷。它只适用于证明对紧急威胁的本能自卫反应的正当性。比如,它并没有在当涉事国仍有可供选择的手段(即使并非和平手段),以及在仅有的危险选项面前尚有权衡时间时,留给他们足够保护自己在自卫中合法利益的时间。卡罗琳号准则中了列出的条件在现实中其实很少出现。除了像在东京法庭被接受的荷兰1941年12月8日对日宣战这样的特例外,我没发现过其他卡罗琳准则能作为有力证明的先发制人事件。尽管这一先发制人正当性的经典案例与同类的其他案例大不相同,但也并非毫不相干。事实上,卡罗琳案例更好地说明了严格区分紧急先发制人与未允防范的困难。
The deeper problem with the Caroline strict standard of imminence is that it is standing in for the more ethically significant considerations of danger and probability. This is the concern that Michael Walzer raises in his influential treatment of the 1967 Six-Day War between Israel and Egypt. Walzer and other scholars have made persuasive arguments that anticipatory uses of force by states are legitimate acts of national self-defense whenever a “failure to do so would seriously risk their territorial integrity or political independence.” This more expansive vision of preemption is justified when, Walzer adds, a “sufficient threat” has been demonstrated, involving a manifest intent to injure; active preparation to attack on the part of the opponent; and a situation in which waiting significantly magnifies the risk of great harm. These standards are a considerable step forward in matching the virtues of the rule of law with the security of states.
对于紧急准则苛刻的条件, 更严重的问题在于它正在日渐代替道德上对于危险与可能性更富意义的考虑,这也是迈克尔-华尔兹在那份针对1967年以色列-埃及六日战争颇具影响的对策中提出的担忧。华尔兹及其他学者提出了令人信服的论据,每当不预先使用武力领土完整或政治自治就受到威胁时,预先使用武力就成了国防的正当手段。华尔兹还指出,当一个所谓的”足够大的威胁”(比如,明显的破坏意图, 被对手视为积极备战,以及等待将大大增加重大伤亡的风险时)被宣示,即使更加扩大化的先发制人事件也会被证明为正当。这套准则极大地促进了法的精神与国家安全的协调。
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