【PART 4】 The Mystery of Security Treaty Village (2): The UN Charter and the Postwar World
【23】 The view by French legal scholars
Now, we can see that the position given to Japan in the international community has been an extremely harsh one. From a common-sense viewpoint, it’s natural that “enemy states” be relieved of their discriminated status when they join the United Nations. After all, if other countries still regarded them as untrustworthy enemies, they could just refuse to let them join.
Now, seventy years from the war, all seven countries that had once been regarded as enemy countries are members of the UN. Japan even contributes more than ten percent of the UN budget alone. There’s no way we remain “enemy states” under international law, right…?
But then, that’s not the case. According to the most credible commentary on the UN Charter accessible in Japan, La Charte des Nations Unies: Commentaire article par article (Japanese translation published by Tokyo Shoseki), theories differ on this matter! In short, some theories say the enemy state clauses are “obsolete,” as the Security Treaty Village scholars in Japan claim, but others say they are still effective.
La Charte des Nations Unies: Commentaire article par article
The original French version of the Commentaire was published in 1991 (this is the second edition, and the first was published in 1985). It was edited by Jean-Pierre Cot (professor at the University of Paris and former minister) and Alain Pellet (professor at the Paris Institute of Political Studies Graduate School and member of the UN International Law Commission).
The preface of the first edition was written by then UN Secretary-General Javier Perez de Cuellar.
The most amazing thing about this book is that it is a compilation of the writings by eighty or so French-speaking legal scholars, mainly French university professors.
Thus, it is completely detached from the Security Treaty Village led by the U.S., so that it can tell us the “truth about international law” that we cannot usually see.
According to this book, there were many scholars in the past who argued that “joining the UN cannot erase the past as an enemy state, and therefore has no impact on the enemy state clauses (or in other words, they stay effective).”(*)
What’s written below that is even more shocking for us Japanese. “However, judging from the following diplomatic examples, the Allies including the Soviet Union seem to have at least abandoned the rights given to them by UN Charter Article 107 [enemy state clause] in their relations with West Germany.”
Another part of the book also states that “the treaties signed based on Ostopolitik [West Germany’s foreign policy to reach rapprochement with East European countries including East Germany] have nullified [enemy state clauses] Articles 107 and 53, in the relations between West Germany and neighboring Eastern countries since the 1970s.”
It means that the enemy state clauses have become virtually obsolete for Germany as a result of Ostpolitik in the 1970s. However, the book does not say anything about Japan!
Basically, the authors and editors of this book are implying that there is a high possibility of the enemy state clauses still being valid towards Japan.
* ・・・ Hans Kelsen, one of the leading 20th-century scholars of international law who was born in Austria, clearly observes as follows in one of his major works published in 1950, The Law of the United Nations: A Critical Analysis of its Fundamental Problems: “In this respect, the ex-enemy states are, in principle, outside of the law of the Charter. This outlawry is permanent.” (Italics added by author)