船舶法第二十二条と国際法

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The use of national flags by ships is limited only to its nationals except when it is employed in time of war to escape capture by enemy vessels. It is expressly permited to foreigners by the British Shipping Act of 1894, Sec. 691 and the present Japanese Vessel Act, Article 22, Clause II. In spite of somewhat misleading interpretation by Japanese municipal lawyers to take caputure for arrest in time of peace, these stipulations have the same origin found to be traced back to the French Maritime Ordinance of 1650 which prescribed for French captains not to hoist other banners than France's while waging war. In the days of this ordinance French marines were too weak to engage war on the sea. Besides the exceptional and rare ships which the Admiral fitted out at his own expense, available were only privateers armed by private persons. Their greed for gains forced themselves to neglect sufficiency of armament during wars and exposed the flag of France to insult very often. Harsh pillage was committed even after truce to the detriment of the honour of the king of France and his allies. This state of affairs led to the above mentioned ordinance to bring order to naval wars. But approximately after 1681 ordinance of France it had been almost always permited for the privateers to keep aboard any flags which they judged as proper and to use them when driven by necessity in order either to recognise better the ship they encountered or to escape the pursuit by enemy which they assumed stronger than themselves. What was prohibited was to attack under false flags or colours and mainly concerned privateers, for they were the first to disguise their nationality as a ruse of war. War ships were, as it was expected, the last to hide their nationality to avoid battle with enemy war ship or to attract merchant ship apparantly fragile to resist. It is so natural for this ruse of war to authorise victim of privateers to do the same thing. For a long time this custom could have been maintained without considerable trouble. So long as the speed of war ships was slow and their range was short, no fatal surprise could threaten. A suspicious ship could be observed long before it became dangerous. There was wide room for merchant ships to escape and enough time to make preparation for the combat. Even if a false flag enabled an enemy to approach and fire, the first attack could be rarely fatal. Modern weapon can fataly attack targets beyond visual range or even over the horison where it is impossible to confirm that the target is a legitime military object. The maintenance of this ruse of flag greatly increase the danger to neutrals which Japan has much possibility to become in future armed conflicts. In 1915 the U.S.A. protested the British ship, the Lusitania, wearing American colours in the war area. Strongly worded protests were also presented to Britain from the Netherlands and the three Scandinavian states. Their common ground was that this old rule had become obsolete. It is difficult to see why the law of the sea should continue to tolerate method of deception originating from privateers'discretion of oppotunistic choice between assaulting the weak and retreating from the strong. We need not go so far as dealing all aspects of ruses of war concerning ships. What can be and what should be done is to deplete the exemption clause of the Article 22 of the Japanese Vessel Act to keep free hand in our diplomacy.
社団法人日本航海学会の論文
1999-09-25

船舶法第二十二条と国際法

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