【PART 4】 The Mystery of Security Treaty Village (2): The UN Charter and the Postwar World

 

10】 Article 53 of the UN Charter

 

Let me elaborate a bit more about what kind of legal position the two defeated states, Japan and Germany, have been given in the global framework of the postwar world.

Needless to say, the UN Charter is a cornerstone of the postwar international community. The following article proves this.

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

The UN has almost 200 members at present, and this UN Charter is prioritized over any international agreement made among these members. This puts the UN Charter at the top of the international law hierarchy.

To place the UN Charter above anything else was a fundamental part of the postwar world vision which the U.S. and U.K. described in the Atlantic Charter. With this vision realized, international law has become the most powerful weapon in the world. Therefore, the 70 years since World War II have arguably been a history of conflict using international law as a weapon, as well as a history of conflict based on military power.

Then, what kind of position has Japan been given in this postwar world?

An important principle of the UN Charter is the resolution of international conflict by peaceful means, which was taken from the Dumbarton Oaks proposal. The following articles describe this principle.

Article 2

  1. All Members shall settle their international disputes by peaceful means …
  2. All Members shall refrain … from the threat or use of force …

As you can see above, UN member states are banned from individual enforcement actions, or military operations, except for the purpose of self-defense. Now, please examine the quote below.

Article 53-1 (first half)

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council

According to the first half of Article 53-1, the only case when states are permitted enforcement action is when it has “authorization of the Security Council” and does it as a member of “regional arrangements or agencies.” (The definitions of “regional arrangements” and “regional agencies” vary among experts, but I hope you can get the image if I give an example: the North Atlantic Treaty is a regional arrangement, and NATO is a regional agency based on it.)

In the postwar world, the use of military force is only allowed in the following cases: firstly, when the UN Security Council forms UN Forces (however, the formation of official UN Forces remains unprecedented), and secondly, when it is conducted by security mechanisms which exist worldwide, with permission from the Security Council.

However, please observe the quote below.

Article 53-1 (second half)

with the exception of measures against any enemy state … provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization [UN] may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

The second half of Article 53-1 in the UN Charter states that “enemy states” are an exception to the rule I discussed above. In other words, in the case that defeated nations such as Japan or Germany were to revive Nazism or militarism and begin policies of aggression, other nations are permitted to attack without confirmation from the Security Council.

“Regional arrangements directed against renewal of aggressive policy on the part of any such [enemy] state” are widely considered to signify agreements such as the Sino-Soviet Treaty of Friendship and Alliance signed in 1950, which saw Japan as the hypothetical enemy, and mutual assistance treaties among Eastern European nations during the late 1940s, signed in case of an attack from Germany.

When NATO was established in 1949, Germany was not an initial member (its entry to NATO and remilitarization were permitted six years later, in 1955). Hastings Ismay, who was the first Secretary General of NATO (and Winston Churchill’s chief military assistant), said the purpose of NATO was to “Keep the Americans in, the Russians out, and the Germans down.”

Also, U.S. Senator Arthur Vandenberg, who wrote Article 53, stated at the drafting committee of the UN Charter that “The main purposes [of the enemy state clauses] are the permanent demilitarization and control of Germany and Japan,” according to conference notes. When NATO was created, it had a clear goal of restraining Germany’s military powers forever, in case it should try to renew aggressive policies.