2017-02-05

錯誤

民法

無効は誰でも主張できるのが原則だが、

・錯誤無効(95条)の場合は、表意者保護の制度趣旨から、表意者しか無効主張できない。

・例外:①債権保全のため ②表意者が錯誤を認めている時、第三者も主張できる

・連帯債務者は、新たに独立に法律関係を有してないので、第三者(96条)にあたらず、保護されない

・第三者とは、本人・包括承継人以外で新たに独立に法律関係をもったもの

・「動機の錯誤」を一定の場合に認めるのは、意思主義の不徹底と批判可能

・判例の立場への批判として、「動機の錯誤」と「内容の錯誤(意思表示の意味に関する錯誤)」を区別できないという批判

2017-02-02

今日は

いろいろ

今日は試験の最終日、がんばります。

試験のりきりました。

試験のあと、打ち上げにいったら、いろんな人がいるんだなあの思いました。

2017-02-01

トランプ大統領への国連の対応

国際法国際政治国連

トランプ大統領が、難民と中東7カ国の国籍者のアメリカへの入国を禁止する大統領命令をだしました。

国連はどうするのかなーと思って国連のホームページみたりしてもアメリカに触れられてなかったです。

やっぱり国連事務総長が一国を大っぴらに批判するのは難しいです。アメリカは常任理事国だし。

かりに国連事務総長がアメリカのトランプ政権を批判したところで、アメリカにキレられて対話できなくなった上に安保理も停滞してしまうので得なことは無い。だから国連事務総長が批判しないのは当然だと思います。

ただ、事務総長の広報担当がほぼ毎日、報道関係者に会見するんですが、

そこではやっぱりめっちゃ質問攻めにされてました。

広報担当者はのらりくらりと直接的な言及を避けようとしてるのがわかります。大変ですね。

貼っときます。

(該当ページのアドレスは https://www.un.org/press/en/2017/db170130.doc.htm )

※追記 1/31に事務総長がエチオピアからアメリカの国連本部に帰国して、

「国境管理は差別に基づいてはならない」と、名指しはしないもののアメリカを暗に批判しました。

最初の方だけ訳したけど時間無いのでやめました。

**Questions and Answers

Question: Thank you, Stéphane. We've seen a rather mild response from the Secretary‑General on the US Administration's actions regarding refugees and on visas for seven predominantly Muslim countries. I wonder if you could tell us why there's been no condemnation, no request for a reversal, and nothing said on the targeting of those seven predominantly Muslim countries.

「なんで国連事務総長はアメリカ批判しないの？」

Spokesman: I think, as you would have seen, we very much hope that the measures put in place regarding refugees are temporary. The US has been a critical partner of the United Nations organizations, especially UNHCR [Office of the United Nations High Commissioner for Refugees] and IOM [International Organization for Migration], in resettling… in resettling refugees. I think the Secretary‑General looks forward to a constructive engagement with the US Administration on this and other issues. You will also have seen, I think, the joint statement put out by IOM and UNHCR over the weekend in which they say they strongly believe that refugees should receive equal treatment for protection and assistance and opportunities for resettlement, regardless of their religion, nationality or race. And we, obviously, fully agree with what these agencies have said. Sherwin?

「難民に対する措置は一時的なものだと信じてるよ(迫真)。

アメリカは国連の難民・移民政策上でめっちゃ大事なパートナーなんだよね。それにUNHCR(国連難民高等弁務官事務所)とIOM(国際移住機関)が、難民も民族とか宗教に関わらず平等に扱われるべきだって言ってたけど、うちらもめっちゃ同意です。」

Question: Steph, to that point, can you speak about how UNHCR works on the vetting of refugees that are resettled in countries like the United States, for example? I mean, what sort of procedures are in place before people are moved and resettled?

「じゃあ、UNHCRは各国の難民審査にあたって何やってるの？」

Spokesman: My understanding from UNHCR is that they do an initial screening and interviews of each resettlement candidate. Then each country, obviously, where the… those people are to be resettled has its own screening procedures. For the US, as we understand it from UNHCR, they then connect their own vetting process. And, obviously, it is up to the US and any country that accepts refugees for resettlement to give the final green light. The UN never forces anyone to accept refugees for resettlement. The US, as far as we understand it, conducts its interviews abroad. The process can take up to two years. And it goes through a number of security… security vetting that's proper to the US procedure. And again, each country has its own procedures. Yes, sir?

「UNHCRは、移民希望者をおおまかに選別して軽く面接して各国に引き継ぐけど、最終的に判断するのは各国なんだよね。国連は強制しない。

アメリカは、移民希望者を国外で面接してるはず。最長2年かかるらしいよ。」

Question: Follow‑up on this: the United Nations Human Rights Commissioner called Mr. [Donald] Trump's actions mean‑spirited and against the human rights law. Does the Secretary‑General also support the position taken by…?

「国連人権弁務官が、トランプのやったことは卑劣で人権法違反だって言ってたけど、事務総長も同意なん？」

Spokesman: The High Commissioner for Human Rights has his mandate. He is free and encouraged to speak on issues having to do with human rights globally. I've stated the Secretary‑General's position. Obviously, I think if you look back at… I would encourage you to take a look again at the statement the Secretary‑General delivered just a few days ago in the General Assembly on the event of the commemoration of the Holocaust, where he said

he "was extremely concerned about the discrimination faced by minorities, refugees, and migrants across the world".

He said: "I find stereotyping of Muslims deeply troubling. A new normal of public discourse is taking hold in which prejudice is given a free pass and the door is open to even more extreme hatred."

And I think those are the Secretary‑General's own words. Carole. Sorry. Feel free to yield.

「人権高等弁務官は自分の権限でやってるからさあ。

事務総長の意見は、前も言ったよね。

数日前のホロコースト記念イベントで事務総長が自分で

『難民、マイノリティー、移民に対する差別にめっちゃ懸念してる。イスラーム教徒に対する偏見が問題になってる。差別とか憎悪が大っぴらに叫ばれるようになりつつあるよ！』と言ってるからそっち参照してね」

Question: Just a follow‑up on Edie's question. So, the Executive Order caused a lot of panic and chaos this weekend, protests. What's the level of concern of the Secretary‑General given what we're seeing? And, also, when you say you want it to be temporary, are you talking about the Executive… I mean the Executive Order is for months, 90 days.

「大統領命令でえらいことになってるけど、事務総長はどのレベルで懸念に思ってるの？一時的な措置であって欲しいって言ってたけど、それは90日間っていう有効期間のこと？」

Spokesman: We want to see any stop in the flow of refugees that are being resettled in the US to be temporary. Historically, the United States has been one of the most welcoming countries in terms of resettlement of refugees, and we very much hope that that tradition will continue. Obviously, we have seen the confusion that has taken place over the last few days, and it's clear that it is of concern to us. Yes, sir. And then Rosalyn.

Correspondent: One follow‑up and a question. So, in the… President Trump has been speaking about safe zones for refugees in Syria and Iraq and in the Middle East. I just wonder whether the United Nations are going to cooperate with the US President in this regard. And I have a follow‑up.

Spokesman: Sure. You know, on the safe zones, it's… we've seen these reports. We're looking into it. Obviously, any establishment of a safe zone anywhere is a very complex and high‑risk maneuver. But, we are keen to find out more information.

Question: And my follow‑up is… in fact, is Mr. Trump has been in office for 10 days. The… he shook the world and the United States itself. And I wonder whether the Secretary‑General… UN Secretary‑General is going to speak up about the issues, as well as we have been witnessing leaders around the world speaking about this very… and this is not about confusion. This is not about confusion. You characterized it as a confusion. It doesn't…?

Spokesman: I don't think I characterized it as confusion. I expressed our position on what had been decided. I also highlighted what other parts of the UN system have said. And I think that's clear for all to see and read. We are at the start of a new US Administration. We are at the start of a new UN Administration. The new Permanent Representative arrived on Friday. We're looking forward also to the arrival of a new Secretary of State, which will enable the Secretary‑General to have real, concrete and comprehensive discussions with the US authorities on a whole host of issues that we have seen, as you mentioned, in the last 10 days. Rosalyn?

Question: When you said that he is looking forward to having these concrete discussions, is there a scheduled conversation or meeting with Ambassador [Nikki] Haley when he returns to New York?

Spokesman: No, you know, he had a first round of discussion with her on Friday. As it is with Permanent Representatives, they have contact all the time with the Secretary‑General, whether by phone or in person, so it's a… characterize it as a rolling discussion, an ongoing discussion.

Question: And quick follow‑up: Has he tried to reach out to President Trump to express this building's concerns about the policy, about the confusion that has been created among those who may be affected or whose relatives or friends may be affected by the policy?

Spokesman: There's been no… as far as I know, there's been no contact between the Secretary‑General and the President. Mr. Lee and then we'll go to Fathi.

Question: Sure. Thanks a lot. Another question, but follow‑up on this. I wanted to ask you, in light of the… this… what some see as kind of a lack of communications from the UN Secretariat, as opposed to Prince Zeid, came across this 2017 Communications Guidance put out by DPI [Department of Public Information] and its Under‑Secretary‑General. And it talks… it says that "The UN in 2017 will be addressing the toxic, xenophobic and often racist narrative towardS refugees and migrants taking parts in many parts of the world." And I wanted to know, is this… to your knowledge, is this document meant… is it Secretariat‑wide including for high officials? Is it only meant for UNIC [United Nations Information Centre] or DPI offices?

Spokesman: No, it's Secretariat‑wide. And I think you will have seen the previous Secretary‑General launch the Together Campaign about standing with refugees, about opening doors for refugees, about rejecting the stereotyping of refugees. This is a campaign that Secretary‑General [António] Guterres is also very much wedded to, and we will continue to promote it. And it was born out of the… last fall, out of the summit on the mass movement of peoples.

Question: What I wanted to ask about the guidance is, in reading it through, it seems, in many places, like on Haiti cholera, it seems less concerned about actually making up for what took place on the island than for, you know, “promoting what the UN has done”. So, I'd wanted to know… that's on page nine. And I wanted to know, what has the UN done? Of the money raised, you'd said before that 1 million came from South Korea, some hundreds of thousands from… from France, and I believe India has also contributed…

Spokesman: Right. As you know, there are two tracks. I can get you an update on the disbursement. Yep?

Question: Just a couple follow‑ups, Stéphane. On yesterday's… US President Donald Trump spoke to King Salman of Saudi Arabia and Crown Prince of UAE [United Arab Emirates], Hamed bin Zayed, regarding establishing safe zones in Syria and Yemen. If he managed to get his way with this demand, is the UN ready to be on the ground, to be in these safe zone and provide the services needed for the refugees? This is number one. Number two, the impact of the travel ban for the seven countries in President Trump Executive Order, how it affects the UN staff from these countries? UN employs people from all over the world, including these seven Member States. And, third, during the next 30 days, is the Secretary‑General having any schedule to meet with US President Donald Trump, whether at the White House or at the United Nations?

Spokesman: All right. Let me take it in back… in reverse order. On your last question, as soon as there's something scheduled, I will let you know. On your second question, we have gotten assurances from the US Mission that G-4… UN staff members from those seven countries listed who have valid G-4 visas will be allowed to come into the United States for their work. I think there may have been some issues over the weekend, but we're confident in the assurances we've received from the US Mission, and we very much hope that all UN staff members with valid G-4 visas will be allowed to come into the US to conduct their work. On your first question, I would use the exact same words I used for your neighbour to the left… your left, Mr. Barada, about two seconds ago. Masood and then Carole.

Question: Thank you. Stéphane, specifically, just to follow up on this, does the Secretary‑General also agree with the assessment of United Nations Human Rights Commissioner that this… Trump's order is illegal… illegal under the human rights law?

Spokesman: It's not for me to agree or disagree with the High Commissioner for Human Rights. What is clear is that refugees need to receive equal treatment under the law regardless of their race, nationality, or religion. Carole?

Question: Stéphane, can you elaborate on these issues over the weekend concerning the UN employees? And when you said you received assurances from the US Mission, meaning you've been in contact, obviously, with them about…?

Spokesman: Yes, the Secretary‑General's Office has been in contact with the US Mission.

Question: In… in… in that contact, was there an expression of concern or requests…?

Spokesman: We just want to make sure that… you know, this had to do with UN staff. I think, as Fathi said, we have staff from every country and including those seven countries. But, as far as I gather, everything's been resolved, and there've been no… people have been allowed to come in. If I have further details, I will share those with you. Please?

Question: Stéphane, do you know when and where the new conference on Cyprus is going to be?

Spokesman: No, I will check if I have any information on that.

Question: And another question. Do you consider the previous one as successful confidence? Because, as I understand, every participant has a complaint against Mr. [Espen Barth] Eide.

Spokesman: The Cyprus talks are a complicated and complex ongoing process that is ongoing. Olga?

Question: Thanks, Steph. If Syrian talks are rescheduled for later February in Geneva… I'm sorry. So, if it's rescheduled, is it because UN as a sponsor of these talks in Geneva is not ready to host, or UN mediator thinks that parties are not ready to come together?

Spokesman: I will let Mr. de Mistura answer that question when he comes tomorrow, but it's clear that, as he always has, Mr. de Mistura will announce the resumption of talks when he feels that all the chess pieces in this three‑dimensional chess game are aligned in a position that makes it possible for the talks to start. Yep, and then Linda.

Question: I just wanted to follow up. Is there a precise number of UN staff or even people from missions to the UN who were stranded on the weekend?

Spokesman: No, I don't… the… on the mission… the issue of those diplomats in the missions, that's not something I would have access to. But, let me try to get a little bit more granularity on the issue. I think it may have been a handful of cases of people being told by airlines that they could not board, and I think there was a lot of confusion across the board. And… but, as I said, we were happy to get the assurances that we needed to get from the US Mission. [He later made a correction, saying that the UN has no confirmed cases where any UN staff member was affected by the new policies. The UN has been in contact with the US authorities over the weekend and has been assured that G-2 and G-4 visa holders are exempted from the executive order. The UN has received assurances that travel by UN staff should proceed unaffected by the new policy.] Ms Fasulo?

Question: Thank you, Steph. I'd just like to ask you about the status of refugees being accepted into countries in a more global sense. The U… I mean the UN is obviously reacting to the US decision. But, I was wondering, is there a UN position in terms of whether countries should or must accept refugees? In other words, we know that there are dozens and dozens of countries that do not accept any refugees. So, I was just wondering…

Spokesman: The issue of refugees is one of global solidarity and one that should be shared… that solidarity should be shared across the board. Yes, every country that can, should permit refugees for resettlement, should those refugees want to go there. The UN is not in a position to force countries to take in refugees. What we see is that the majority of refugees that are in camps, in transit camps or in temporary — and sometimes that temporary can last 1, 2, 3, 4, 10 years — are overwhelmingly in developing countries, as the Secretary‑General said, in… whether it be in Ethiopia, in… or in Kenya. But, every country has a responsibility. So, everyone should. Carole, then Rosalyn, then Matthew.

Question: Sorry, Stéphane. I just want to get the facts straight. So, that you said there were a handful of cases of UN employees who were not allowed to board plain planes on the weekend. So, eventually, they got other flights or they… they were… what happened there?

Spokesman: No, I think if… and, again, I will try to get more detail. If people were not able to board, they then… there was some… some time was… perhaps people had to wait a day or so, but my understanding as of a few minutes ago is that all the issues had been ironed out and we got the needed assurances from the US Mission. Rosalyn?

Question: Going back to the US situation, one of the reasons why the Administration is arguing that this was a snap order taking effect immediately was that, if there were seven days' notice — and I'm paraphrasing the President's words — that would give “the bad guys seven days to try to get in”. Isn't that, though, a specious argument given that refugees in particular are subject to months, if not years, of review before they can actually receive a visa to the US?

Spokesman: I'm not going to get into the motivation, the interpretation. I think our colleagues at UNHCR have shared the facts of the vetting process as it exists now. We can make the fact sheet available to you if you haven't seen it. And I think everyone can then draw their own conclusions. Mr. Lee?

Question: Sure. Another question, but I guess I'd just ask on… the information about the UN staff that were… were stopped from flying, maybe you can put either a note to correspondents or…?

Spokesman: I said, as soon as I get more…

Question: Send out facts…?

Spokesman: I love facts. As soon as I have them, I will share them.

Question: You'll send them around?

Spokesman: Yes.

Question: Great. I wanted to ask, in Addis, it was said… it's been reported that the Secretary‑General in a meeting with Kenya had reached two agreements. And I wanted to ask you if it's true and if they're related, one having to do with the redeployment of Kenyan troops to UNMISS in South Sudan and the other having to do with committing the Darfur Force Commander position to Kenya. Are both… were both agreements reached? And, if so, is there a relationship between the two?

Spokesman: Not that I'm aware. As you know, on senior staff appointments, they're official once they're announced. I do understand that there was a positive resolution of the issues that we've had between Kenya and the United Nations on the issue of contributions to peacekeeping. I think our… some colleagues from the peacekeeping department or Department of Field [Support] will be going to Kenya soon to have a more detailed dialogue with Kenyan authorities.

Question: And do you know who's won the race for… for African Union PSC [Peace and Security Council]? It's… and… I mean, I guess I'm just… can you confirm that it's not Amina Mohammed of Kenya and it's…?

Spokesman: It's not my place to comment.

Question: Okay. But, I have one question of UN… I wanted… it's a lead‑in. I wanted to know whether you can confirm, either from here or later today, that the Resident Coordinator of Kenya, Mr. Siddharth Chatterjee, in fact, was at the… was… was at the summit and, I'm told, was actually actively lobbying for the Foreign Minister of Kenya to get the position, and if so, if that would be appropriate or not?

Spokesman: I have absolutely no way to confirm that.

Question: Would it be appropriate?

Spokesman: I'm not going to speculate because I have no way to confirm it. Yes?

Correspondent: Not to beat a dead horse…

Spokesman: Please. Why don't you take the mic, please. This horse has been dead for a few years. Keep beating.

Question: Okay. So, yeah, beat it a little more. Was… were there any UN staff who got stranded at one of the US airports not allowed in? I know…

Spokesman: Not that I'm aware of. Ali, and then madame, who's been very patient. Go ahead.

Question: Does the UN support the neighbouring countries of Syria to keep their doors open for refugees?

Spokesman: I think the UN supports all countries and wishes that all countries would keep their doors open for refugees. Sylviane?

Question: Thank you, Stéphane. Regarding the safe zone concerning Syria, it seems that some arrangements have been done around Idlib for return of refugees. Can you confirm that? Do you have something about that?

Spokesman: No, but I can… I can check. Carole and then Fathi and then Masood.

Question: Stéphane, just to clarify, when you talk about a positive resolution on discussions concerning Kenya, so… it means that Kenya will be part of the RPF [Regional Protection Force] in South Sudan, or they're going back to UNMISS? What does that mean?

Spokesman: They will… my understanding is that they will be somehow contributing back to peacekeeping operations in UNMISS. Exactly how and at what… in which component, I will be able to confirm to you a little later. Fathi?

Question: Thanks, Stéphane. Back again to the staff situation from the seven countries in the travel ban, will this Executive Order have any impact on the UN hiring policies and procedures for nationals of these seven countries for jobs open at the Headquarters?

Spokesman: No, no, I mean, as I've said, we've spoken to the US Mission. They've given us the assurances…

Correspondent: For those who already work.

Spokesman: No, no, as a general rule, that people who have G-4 visas and the procedure will continue as it has.

Question: Will they continue issuing G-4 visas for new hires?

Spokesman: As I said, my understanding is that it will have no impact on the UN, moving forward. Masood?

Question: Yes. Stéphane, two weeks ago… I mean two or three weeks ago, when the Secretary‑General took over, I'd asked you a question about India and Pakistan, [the] situation over there. And you said that he would get around to it when… when… because there was so many issues at that time. So, now that he has spoken with the Pakistani Prime Minister in Davos, has he decided that he's going to talk to the Indian Prime Minister?

Spokesman: As soon as there are some contacts, I will… that I'm able to confirm to you, I shall do that.

Question: I mean, is there a date or timeline?

Spokesman: As I… with these things, once they happen, we confirm them. Mr. Lee?

Question: Sure. Thanks a lot. Two questions. One is, is there are reports, including, I guess, UN reports, of alleged sexual abuse by Ugandan troops in the Central African Republic that are part of the force searching for the Lord’s Resistance Army. It said there's a UN report on this. And I wanted to know, does the UN…?

Spokesman: I haven't seen it, so…

Question: Okay. Well, here… you may have seen this. There's… was a decision in the… what used to be called the John Ashe case; now it's called the Ng Lap Seng case, down in the Southern District of New York that came out on 27 January. And it refers… the reason I'm asking you is it refers to a delay in the production by… of two documents produced to the Government by the United Nations — UN Document 1, UN Document 2. They're going to be released down the road, but I wanted to know… I'd asked you before about the request… the UN participation in the case. Can you get a statement, I guess, from OLA [Office of Legal Affairs] how many documents they turned over, if they played any role…?

Spokesman: No, it's an ongoing… it's an ongoing case. We cooperate with national legal authorities in criminal cases as appropriate.

Question: Right, but do you have… do you play any role in keeping the documents confidential?

Spokesman: That's all I can tell you. Okay. Linda, then we'll go.

Question: Thank you, Steph. Just following up on Sherwin's earlier question about the vetting done by the UN High Commissioner for Refugees, you said that there's an initial screening of every candidate. I was just wondering if you had any more details in terms of what that means. Is that just checking documents and that kind of thing?

Spokesman: I will put you in touch with UNHCR, and they can give you more granularity. Thank you.