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Is Germany actually blocking the development of the UNITED NATIONS to become an effective System of Collective Security?

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THE LAW OF THE REVERSAL OF TENDENCIES

by Klaus Schlichtmann

 

ART. IX / 九条

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Walther SCHÜCKING, The International Union of the Hague Peace Conferences

 

INDIA and the Quest for an effective UNITED NATIONS ORGANIZATION

 

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18th General IPRA Conference

www.human.mie-u.ac.jp/~peace/ipra_papers/schlichtmann.doc

5-9 August 2000, in Tampere, Finland

 

 

 

 

 

Peace History Commission

 

Panel: The Constitutional Laws of Peace –

A Contribution to Global Constitutionalism? A Historical Appraisal

 

 

“What is the Connection between Limitations of National

Sovereignty in Constitutional Law and ‘Collective Security’”?

 

 

 

 

          CONTENTS

 

I.   The Historical Dimension of Organizing Peace

II.  The Analytical Dimension

         1.  The Concept of Sovereignty

         2.  The Concept of Collective Security

3.  The Connection between Collective Security and Sovereignty

III. The Normative Dimension

 

 
 

What is the Connection between Limitations of National

Sovereignty in Constitutional Law and Collective Security?

…nothing … should happen today in politics which would be contrary to the actually existing solidarity of mankind.(Hannah Arendt)

by Klaus Schlichtmann*

In this paper I will investigate the concept of collective security vis-a-vis the idea of the ‘provisions of peace’ in national constitutions, that provide for limitation or delegation of sovereign powers, favoring international organization, cooperation and peace. I will discuss the problem from three angles, comprising the historical, the analytical and the normative dimensions. Although the issue has been criminally neglected, it may be reasonable to assume that the global constitutional order, as it develops, can derive impulses, input and some basic components of its legal framework from legislative action, initiated by national lawmakers, aimed at strengthening world order. Such action could produce a decisive momentum to achieve the monopoly of power required to avert wars and tackle global emergencies.

 

I.  The Historical Dimension of Organized Peace

William Penn (1644-1718) was perhaps the first to advocate collective security, when he wrote that the powers should “unite as one strength” to “compel the submission” of anyone failing to “abide” by the “judgment” of the “European Parliament” or “seek[ing] remedy by [resort] to Arms.”[1]

To some extent, the idea of peace as a collective concern was realized in the nineteenth century in the European Concert[2] and the universal Hague ‘Confederation of States’[3] (1899/1907). During the First World War plans emerged for a new international organization to replace the pre-war system; it took into account “the lesson of the previous century of international relations” recognizing the “need for regulating common international interests by means of a common international authority”.[4]

The League of Nations was committed to the pacific settlement of disputes, and collective measures to guarantee the peace. But the institutions were still weak. Also, when in 1919 the United States failed to join the League of Nations, responsibility of collective security passed “primarily to British hands for safekeeping and cultivation,” where it collided with Commonwealth interests.[5] Anyhow, in September 1922 the Third Assembly of the League adopted ‘Resolution XIV’,[6] which was drafted on “the correct assumption that no serious reduction of armaments was possible” unless the Members of the League “received in exchange a tangible guarantee of safety.”[7] From this developed the ‘Draft Treaty of Mutual Assistance’,[8] which was written and approved by the League’s Mixed Temporary Commission, and presented before the Third Assembly in 1923. While it stipulated that no country needed to provide military assistance “outside its own continent,” this “burden seemed disproportionate” in the case of Britain and its Commonwealth, as it was present on all continents, and therefore could not take up such responsibility. Had the USA joined the ‘system of guarantees’, “at least to the extent of naval cooperation,” as some had hoped, it might have passed, but as it was, it failed for this and other reasons.[9]

Hopes were rekindled when in October 1924 the Fifth League Assembly adopted the ‘Geneva Protocol’, which endorsed a “general scheme of arbitration”, comprising the “three essential elements of security: disarmament, arbitration and assistance”. The Geneva Protocol was to give the League ‘teeth’. Unfortunately it was not ratified, mainly due to a change in the British government. This was a “serious setback to the cause of collective security.”[10] By the early 1930s the system had all but collapsed.

As a last resort, the French Government in 1932-33 suggested an international police force, “a force with rapid and mobile striking power”, consisting of “a sizable fleet of bombers, placed at the disposal of the League”, to solve the problem of security (without which disarmament could not be achieved).[11] Although the idea failed at the Disarmament Conference, at the San Francisco Conference the principle was approved and ‘enshrined’ in Article 45 of the UN Charter.

Had the Charter been fully applied, the Security Council would have the ‘physical power’ required to ‘enforce’ its decisions. Unfortunately collective security became a “hostage of the cold war”.[12] With the fall of the Berlin Wall, hopes for a ‘new World order’, which would be “founded on the rule of law and on the principle of collective securi­ty,” resurfaced.[13]

 

II.  The Analytical Dimension

1.  The Concept of Sovereignty

Hinsley defines sovereignty as “an assumption about authority,”[14] which is located in “the body-politic which the community and the state together compose”. More precisely, the ‘community’ was “regarded as wholly or partly the source of sovereignty and the state as the sole instrument” to exercise it.[15] Much younger than the “doctrine of sovereignty within the territorial community” is the concept of the power of “the state in relation to other states,”[16] which served above all as justification of the ‘right of belligerency’, the “most basic of all the rights of the sovereign state.” With the close of the nineteenth century, states “clung tenaciously to this right, believing it to be fundamental to their sovereignty.”[17]

The proper functioning of sovereignty became the “essential qualification” for a state’s “membership of the international community”; it became an instrument for the superior European powers “to impose their own authority on the countries of the non-European world, which allegedly did not possess it, and set up colonies, protectorates, condominiums and semi-sovereign dependencies.”[18] In contrast, “[m]edieval political theory was built upon the principle of the supremacy of law”,[19] not state sovereignty.

C. Wilfred Jenks drew attention to the fact that already “[i]n Greek political theory the sovereignty of the law was a fundamental and perennial concept.” Aristotle maintained, “the true relation between law and government is secured by making the law sovereign and the government its servant.”[20] This was likewise the basis of medieval political philosophy. “The only sovereignty they recognized was that of the law...”[21]

Following Thomas Hobbes, German romanticism, reacting against Napoleon, glorified the power of the State, believing the State’s “right of war, like all rights to compel, [was] infinite.”[22] Still, the “inheritance of medieval thought continued to be influential,” and the principle of absolute state sovereignty “contested or qualified by the continuing influence of constitutionalism and internationalism.”[23] Japanese jurist Kotarô Tanaka denounced “the doctrine of the absolute sovereignty of the State” and “the denial of legal character to international law.” “International law must be world law, that is supra-national law, the existence of which does not depend upon the individual will of the member-States of the world community.”[24] Evidence of this trend in contemporary history are the “victories won for the rule of law,” such as “that of 1918 which made possible the Covenant and that of 1945 which made possible the Charter.”[25]

By the 1960s, the “doctrine of relative sovereignty, i.e., sovereignty of the State limited by the rules of international law binding upon that State,” was “accepted by … publicists to such an overwhelming extent that it is generally called not only traditional or classical doctrine, but also the dominant doctrine.”[26] “An important first step … in limiting sovereignty under law, is the clear decisional holding that sovereignty is territorial.”[27] In line with this school of thought, one author suggested that sovereignty should be replaced by terms such as “self-government”, “capacity of action” or “liberty of conduct.”[28]

Reflecting these trends, the Japanese Constitution in its Preamble declares unequivocally: “no nation is responsible to itself alone, but that laws of political morality are universal and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.” At least in this respect, as in the war-abolishing Article IX, Japan has made an original contribution to global constitutionalism.

 

2. The Concept of Collective Security

Collective security is surely not the ‘anti-earthquake pill,’ E.H. Carr had in mind.[29] Rather, its implementation is expected to be the first step toward democratic, federal world government. Woodrow Wilson was right when he denounced the system of power balance: “There must be, not a balance of power, but a community of power; not organized rivalries, but an organized common peace...”[30]

“Psychologically the system of collective security has two functions to perform: it should act as a deterrent to potential aggression and at the same time impart a sense of security to all participating States.”[31] Following an early post-war Unesco report collective security consists of “three distinct sets of policies: the regulation of armaments, the pacific settlement of disputes, and collective action.”[32]

The Covenant of the League of Nations stipulated that “[a]ny war or threat of war, whether immediately affecting any of the members of the League or not, is hereby declared a matter of concern to the whole League…”[33] The Charter, unwilling – and unable – to define aggression, prohibits any and all recourse to the use of force, refuting previous theory and practice, which had allowed States to “lawfully retaliate not only to actual but also to apprehended attacks”. “Under the Charter … the attack must be actual and armed.”[34] Because in the early 1920’s it had been understood that it was not “practicable to disarm before an effective system of general security ha[d] been created”,[35] the UN Charter emphasized law enforcement, though eventually the most vital provision, Article 45, was not implemented. In principle, collective security requires that decisions by the Security Council be enforced by international police action. The new concept for the police function of the United Nations found expression in such terms as ‘breach of the peace’, and the new term ‘threat to the peace’, which substituted the old ‘threat of aggression’.[36]

The Military Staff Committee in charge of the police function is placed at the disposal of the executive council, to “advise and assist” it, and to take on responsibility “for the strategic direction of any armed forces” under the authority of the Security Council.[37] Shortly before the rift between the powers in 1947, it “submitted … estimates of the overall strength required by the United Nations.” In these,

“the United Kingdom, the Soviet Union and China were all thinking in terms of a land army consisting of not more than 12 divisions; the highest estimate, that of the United States, was for 20 divisions. Similarly, the United Kingdom, the Soviet Union and China would have been satisfied with an international air force totaling not more than 1,200 aircraft; the corresponding figures in the French and American estimates were 1,275 and 3,800. As regards naval forces, none of the five delegations proposed more than 3 battleships, 6 aircraft carriers, 15 cruisers, 84 destroyers and 90 submarines; the majority of them proposed a much smaller force.”[38]

“The United States subsequently revised its estimates downwards.”[39] However, whether “the armed forces which … are to be ‘placed at the disposal’ of the Security Council can be properly described as an ‘international police force’ depends on the meaning” we give it. Politically it would mean “a permanent army of an international nature over and above national armies or even replacing them.”[40] Nonetheless, Article 39 of the Charter has “abolished the discretionary powers of Members and transferred them to the Security Council. It is for the Council to decide when and how collective action shall be taken.”[41] Also, the Charter substituted “for the rule of complete unanimity of the League Council a system of qualified majority voting in the Security Council.”[42]

Still today, in principal (or ideally), the United Nations “must be prepared to follow up the condemnation with sanctions”, whatever the risks involved. The problem is that “the military strength wielded by the Organization” must “outweigh the force that any recalcitrant combination of Powers can muster.”[43] That is why the idea of collective security has also provoked profound criticism.

For if the Security Council must follow up its condemnation with sanctions, there can be, under present conditions, no ‘insurance’ that these will not set in motion an “extension of the conflict”, or even a “general war”, i.e. “the very catastrophe that the system of collective security has been designed to avert.”[44] Not only nationalists therefore have criticized collective security. The arguments “have not changed substantially since the days of the League. It is contended that collective security is a source of danger and not of safety, because its purposeful application must lead to the spreading of conflicts and not their localization.”[45] That is the main reason why nations, even today, though they have “subscribed to this principle … have not paid it the ultimate tribute of believing in it or acting upon it.”[46]

E.H. Carr of course mistrusted the “missionary zeal of enthusiastic intellectuals for collective security” and “world order”.[47] They propagated a myth that failed. Why did it fail? According to realist George W. Egerton, “the central dilemma was always how to achieve a peaceful international political legal order while retaining simultaneously the sovereignty of states.”

Or, as Finkelstein and Finkelstein have put it:

“Collective security is like a mirage. It beckons on the horizon. It seems full of promise. But it remains unattainable. It remains unattainable because the basic requirement of collective security – that nations subordinate their conflicting purposes and interests to collective action for the suppression of prohibited acts no matter how or where they may occur – has remained an illusion.”[48]

The point is, as the authors emphasize, that, as “[e]xperience has shown,” “collective security is dependent, at the very least, on a firm nucleus of great power agreement.”[49]

 

3. The Connection Between Collective Security and Sovereignty

We have already noted that, with the end of the nineteenth century, nation-states for the first time “attempted … to establish an international authority that would be superior to them in relation to their decisions as to peace and war.”[50] Definitely by 1918, they had “perceived that … to avoid … further war” they had to “relinquish their sovereignty in at least that crucial area of relations between states which involves the decision to resort to war.”[51] Maurice Bourquin and others in the interwar period started to be convinced that “the old conception of sovereignty” was “bending under the pressure of the new tide, and that on all sides the needs of the collectivity of States [were] attacking it, and gradually and ever more energetically the concept of ‘world interest’ [was] rising.”[52] The League’s Covenan, to a considerable extent, endorsed the principle that “no nation under any pretext whatever shall be judge of its own cause and shall be free to resort, at its own instance, to force”.[53]

Anyway, the establishment of organized peace, Karl Jaspers argued, is a process, not an absolute end. “World order, with the abolition of absolute sovereignty, would mean the abolition of the old concept of the State in favour of mankind. The outcome would not be a World State (that would be a world empire), but an order, perennially re-established in negotiation and decision, of States governing themselves within legally restricted domains: an all-embracing federalism.”[54]

It was the assumption when the United Nations started off that it would function eventually, fulfilling these expectations.[55] Because it was not possible to have all at once, governments of the liberal democracies, while accepting that in principle the UN was “properly equipped for the discharge of its police functions”, also recognized that “during the period of transition to the ultimate status of collective security, the system might be exposed to a few shocks of measurable proportions.” To the San Francisco Conference

“the acceptance of that risk seemed a reasonable price to pay for the period of time it seemed compelled to buy so that the gradual transmutation of international relations into a closely integrated system might be completed by means of an evolutionary process: the process of obtaining the surrender of further portions of sovereignty through successive amendments of the Charter.”[56]

Although it was not followed up, initially, a majority of nations were quite willing, “to surrender much larger portions of sovereignty than had ever been seriously suggested between the wars”, particularly “in the field of atomic energy.”[57] A great majority of the United Nations accepted this as

“a deliberate first step towards a world federation; had the Soviet Union been in a position to move in the same direction, the gain to the cause of world government would have been immeasurable. Unhappily, … the American initiative and its endorsement by the General Assembly … were wholly out of step with the … trend of Soviet political thought...”[58]

Also, it was ‘common ground’ that “initially ‘the major portion’” of the police force “must be provided by the permanent members of the Security Council”,[59] who constitute the central core of the system of collective security.[60]

 

III. The Normative Dimension

In the 1950s it became clear that the Charter had “not created an international police force”, for “to do so would have involved the surrender of national sovereignties” to a significant extent. Whether one agrees with the post-war author I have quoted that “‘public opinion was not ripe’ in 1945, no more than in 1919,”[61] legally at least, apart from the five permanent members’ original responsibility for collective action, Article 43 of the Charter has the program. It is “for [all] practical purposes, one of the [most] crucial provisions in the Charter”, containing “the gist of the matter.”[62] It looks forward to a “special agreement or agreements between the Security Council and individual Member States, or groups of them,” which would regulate the details of collective action. This is highly significant; although the “legal character of these agreements is not strictly defined,” according to the Charter, they must be ratified “by the signatory States in accordance with their respective constitutional processes.”[63] In fact, the “authority of the Security Council to enter into binding international treaties [with Member States] is a noteworthy departure from precedent. The Council of the League had no such power.” “As long as a Member has not entered, either individually or as a part of a group, into special agreement with the Security Council, it is under no obligation to make positive contributions (other than, possibly, the grant of rights of passage) to the military preparedness if the United Nations.” The United Nations system is in a “transitional stage” until “the entry into force of such a number of special agreements as, in the opinion of the Security Council, will enable it to begin the exercise of its military responsibilities.”[64]

As I have shown elsewhere, there are some odd 20 or so constitutions which have provisions for passage of a bill to limit or delegate sovereign powers with respect to the right of belligerency of the state[65] or creating the institutions that would make war obsolete. However, we must remember that the five permanent powers form already the ‘hard core’ of an effectively functioning (future) system of collective security, ‘to which’ sovereign powers are delegated. This would strengthen and could transform the legal basis of the UN Security Council itself. The ‘hard core’ members cannot, though, delegate powers to themselves. In this respect they are ‘powerless’.

The delegation or special agreements here envisaged have not been attempted. As is well known, the so-called PKOs are based on separate and strictly limited contracts outside the Charter. What would happen, if a European country like Germany or an Asian country like India were to delegate sovereign powers to the Security Council, through passage of a BILL, invoking the principle of reciprocity and the obligations of states members to the United Nations to follow suit and empower the Organization to function effectively as a system of collective security? Is it too far-fetched to assume that in the process they might also effectively call for the restriction of the veto,[66] the establishment of a peoples’ chamber complementing the General Assembly, and a competent international court with binding jurisdiction? There is no risks involved, the delegation can be revoked. For example, if the Western powers take the initiative, their combined might will be a powerful factor in achieving the aim of pooling all the world’s military resources, before reducing them to acceptable levels for the supranational authority to function.

No doubt, “[w]ith the increasing number of conflicts within states, the international community must develop a new concept of the relationship between national sovereignty and international responsibility.” Unfortunately still, “[b]oth in practical endeavors and in efforts to reform the organization, the UN has frequently come up against governments’ concern to protect national sovereignty and a deep, if unexpressed, reluctance to countenance any development in the direction of supra nationalism.”[67] But international lawyers are today offering new insights, as in a recent dissertation by a German scholar: “The notion of Rechtsstaat [domestic rule of law] as an essential pillar of national constitutional theory including the idea of a separation of powers and a system of checks and balances can and should be made applicable to the UN constitutional order in a manner appropriate to its distinct structure and characteristics.”[68] The question is how to get there.[69]

 

Conclusion

In spite of their potentially profound relationship, even after the collapse of communism, there has been no attempt to install collective security or make the UN more effective on the basis of the already existing constitutional and Charter law. Still Too little known and appreciated is the precedent of Japan, which abolishes war in its Constitution. As I have previously argued, the ‘war-abolishing’ clause establishes a motion that is waiting to be seconded.[70] Unfortunately, such ways of empowering the UN to achieve international disarmament and a permanent peace based on enforceable world law are hardly discussed or considered.

The right to peace constitutes an essential human right, which generates certain duties of the State subject to the rule of law.[71] In a world of increasing interdependence, the abolition of the in­stitution of war is the conditio sine qua non of legitimate power exercised by the State. Therefore, in the future no government can claim that it is acting responsibly, be it in the interest of its people or the international community, if it doesn’t meet these standards, and make efforts to cooperate with others toward that aim.[72] It is “up to the members of the international community to decide whether they want to enable the Council to perform its functions or whether they wish gradually to return to pre-Charter habits and practices.”[73]

It is maintained that applying the ‘constitutional law of peace’, to put the system of collective security into force, would be of immense benefit; it enables single, ‘individual’ states to take positive action, and enter into a state of contract with the UN Security Council. As far as I can see, in the literature, this aspect has not received the attention it deserves.

 


 

   * Klaus Schlichtmann studied Asian History, Political Science and Public and International Law at Kiel University, from where he obtained his Ph.D. He is presently a member of the Faculty of Comparative Culture at Sophia University, Tokyo. He has published on Japan and The Hague Peace Conferences, Germany and Japan in the interwar period, and Japanese diplomacy. His dissertation (Kiel 1997) is on Shidehara Kijûrô, who was Foreign Minister in the 1920s, and is credited with having suggested Article 9 of the Japanese Constitution, rejecting the institution of war, to General Douglas MacArthur on 24 January 1946, when he was Prime Minister. I am indebted to Dr. Dr. Stefan Lippert (Harvard Law School) for making valuable suggestions to my manuscript.

[1][I]f any of the Soveraignities that Constitute these Imperial States shall refuse to submit their Claim or Pretentions to them [the European Parliament], or to abide and perform the Judgment thereof, and seek their remedy by Arms, or delay their Compliance beyond the time prefixt in their Resolutions, all the other Soveraignities united as one strength, shall Compel the submission and Performance of the sentence, with damages to the suffering Party…” William Penn, An Essay Towards the Present and Future Peace of Europe by the Establishment of an European Dyet, Parliament or Estates, London 1693, pp.17-8, facsimile reprint, Hildesheim, Zürich and New York: Georg Olms, 1983, with a preface by Heinz Waldner, and an introduction by Peter van den Dungen.

[2] The Congress of Vienna established the “principle … of Intervention, whereby the five great Powers (Austria, France, Great Britain, Prussia, and Russia) were free to interfere collectively in the internal concerns of any State whose condition seemed to them to threaten the peace of Europe.” A.C.F. Beales, The History of Peace. A Short Account of the Organized Movements for International Peace, London: G. Bell & Sons, 1931, p. 38.

[3] This expression was used by the neo-Kantian international jurist Walther Schücking (1975-1935).

[4] Beales, The History of Peace, p. 302.

[5] George W. Egerton, ‘Collective Security as Political Myth: Liberal Internationalism and the League of Nations in Politics and History’, The International History Review, v.4 (November 1983), pp. 496-523.

[6] Records of the Third Assembly, Plenary Meetings, I., p. 291.

[7] Andrew Martin, Collective Security. A Progress Report, Paris: UNESCO, 1952, p. 36.

[8] Text in League of Nations: Records of the Fourth Assembly, Minutes of the First Committee, pp. 197ff.

[9] Martin, Collective Security, pp. 131-2. See also F.P. Walters, A History of the League of Nations, London, New York, Toronto: Oxford University Press, 1960 (1952), pp. 223ff. The Draft Treaty on Mutual Assistance had “a profound influence on the shaping of the United Nations Charter.” Martin, ibid., p. 114. The pacifists didn’t like collective security, because it meant going to war to defend peace and national interest. Eventually, those ‘apologists’ could “claim, with a plausible but entirely misleading parade of documentary support, that Germany had no greater responsibility for the war than the Allied nations…” Dafoe, op.cit., p. 190. This was most unfortunate; war and “international anarchy returned with a vengeance.” Egerton, op.cit. p. 514.

[10] Martin, Collective Security, p. 114.

[11] Martin, Collective Security, p. 55.

[12] Pérez de Cuéllar, zit. bei Tatsurô Kunugi, ‘Toward a Renais­sance of the United Nations’, Japan Quarterly, January-March 1991, p. 24 (23-32).

[13] Bruce Russett and James S. Sutterlin, ‘The U.N. in a new World Order’, Foreign Affairs, vol.70, no.2 (Spring 1991), p. 69 (69-83).

[14] F.H. Hinsley, ‘The Concept of Sovereignty and the Relation Between States’, Journal of International Affairs, vol, XXI, no. 2 (1967), p. 242.

[15] Hinsley, Sovereignty, p. 222.

[16] Both quotes are in F.H. Hinsley, ‘The Concept of Sovereignty and the Relation Between States’, Journal of International Affairs, vol, XXI, no. 2 (1967), pp. 242 and 245 respectively.

[17] Hinsley, Sovereignty, p. 230.

[18] Hinsley, Sovereignty, p. 224.

[19] C. Wilfred Jenks, ‘The Thesis in Historical Perspective’, in: Arthur Larson, C. Wilfred Jenks et al. (eds.), Sovereignty within the Law, London: Stevens & Sons, New York: Oceana Publications, 1965, p. 23 (emphasis added), quoting from Carlyle, A History of Medieval Political Theory in the West, vol. IV, 1950, p. 370. I mostly follow the argument of Arthur Larson and C. Wilfred Jenks, in their excellent anthology, Sovereignty within the Law, published in 1965.

[20] Jenks, op.cit., p. 22, quoting Barker, The Political Thought of Plato and Aristotle, 1906, pp. 328-37 (emphasis added). Apparently, it was “in the Hellenistic kingdoms, following the death of Alexander, that ‘a triumph of Eastern over Western ideas’ resulted in the deification of monarchy.” Ibid. However, the concept “goes back to early times,” and figures in Plato’s later political writing, The Laws. Jenks, ‘The Thesis in Historical Perspective’, p. 22.

[21] Likewise, for them „the question of a collision between the two systems of law was very different from what it is to us.” Ibid, p. 23.

[22] Reiss, Political Thought of the German Romantics, p. 79, quoted in Jenks, ‘The Thesis in Historical Perspective’, p. 25. And ibid., Jenks: “With Hegel and his successors philosophical absolutism is reflected in the metaphysical theory of the State, ... the denial of the existence of law in international affairs” and “the concept that the State as a harmony of the whole society is the absolute power on earth.”

[23] Jenks, ‘The Thesis in Historical Perspective’, p. 26.

[24] Kotarô Tanaka, ‘Japanese Law’, in: Larson, Jenks et al. (eds.), Sovereignty within the Law, p. 236.

[25] Jenks, ‘The Thesis in Historical Perspective’, p. 28.

[26] Marek St. Korowicz, ‘Writings of Twentieth Century Publicists’, in: Larson, Jenks et al. (eds.), Sovereignty within the Law, pp. 414-15.

[27] Arthur Larson, ‘Decisions of Tribunals’, in: Larson, Jenks et al. (eds.), Sovereignty within the Law, p. 275.

[28] Alf Ross, Textbook of International Law, pp. 40, 44, 45, 1947, quoted by Korowicz, ‘Writings of Twentieth Century Publicists’, in: Larson, Jenks et al. (eds.), Sovereignty within the Law, p. 428.

[29] Sold by a clever businessman who, when questioned as to the effectiveness of the pills, replied: “But what would you put in their place?” E.H. Carr, The Twenty Years’ Crisis, London: Papermac, 1995 (1939), p. 11, n.12.

[30] Quoted in Sumner Welles, The Time for Decision, New York and London: Harper & Brothers, 1944, p. 378.

[31] Martin, Collective Security, p. 130. And ibid.: „In the League the emphasis rested on the first of these functions … sanctions.

[32] Martin, Collective Security, pp. 9-10. Also, collective security implies the determination “to promote social progress and better standards of life”, and the aim “to employ international machinery for the promotion of the economic and social advancement of all peoples.” Charter, Preamble. See also Chapter X. Already the League of Nations’ International Labour Organization proclaimed that “universal peace ... will be established only if it is based upon social justice.” Constitution of the International Labour Organization, Preamble, in: Andrew Martin, op.cit., p. 19. See also Covenant of the League of Nations, Article 23, paragraphs (b) and (e).

[33] The Covenant of the League of Nations, Article 11, 1.

[34] Martin, Collective Security, p. 169.

[35] Martin, Collective Security, p. 27.

[36] Martin, Collective Security, p. 117.

[37] Charter, Article 47, (1) and (3).

[38] UN Document S/394; see also Yearbook of the United Nations, 1947-48, p. 495.

[39] Leland M. Goodrich, Edvard Hambro and Anne Patricia Simons, Charter of the United Nations, Commentary and Documents, Third and Revised Edition, New York and London: Columbia University Press, 1969, p. 324, n. 128.

[40] Statement by the Rapporteur of Committee III/3 of the San Francisco Conference at the opening meeting; UNCIO Document 134, III/3/3.

[41] Martin, Collective Security, p. 143. See also Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems, 1951, p. 280 et seq.: “As an organ of the United Nations the Security Council acts on behalf of the United Nations, not on behalf of its Members … Acts of the Council … are … to be imputed to the Organization, not to its Members. To disregard that imputation to the Organization to make the Organization disappear behind its Members is the tendency of the sovereignty-dogma which is incompatible with the idea of a legal order binding upon the states … It is not the Members, it is the Charter which confers responsibilities on the Security Council.” See also Delbrück, ‘Commentary on Art. 24’, in B. Simma (ed.), The Charter of the United Nations, 1994, p. 397, at 404. Quoted in: Bardo Fassbender, ‘Review Essay – Quis judicabit? The Security Council, Its Powers and Its Legal Control’, IJIL, vol.11, no.1, pp. 219-232 (2000), p. 231.

[42] Report to the President on the Results of the San Francisco Conference, by the Chairman of the United States Delegation, the Secretary of State, June 26, 1945, Department of State Publication 2349, Conference Series 71, Washington, D.C.: Government Printing Office, 1945, p. 75. In: Marina S. Finkelstein and Lawrence S. Finkelstein, ‘The Future of Collective Security. An Essay’, in Marina S. Finkelstein and Lawrence S. Finkelstein (eds.), Collective Security, San Francisco: Chandler, 1966, p. 256.

[43] Martin, Collective Security, p. 124.

[44] Martin, Collective Security, p. 124.

[45] Martin, Collective Security, p. 26.

[46] Dafoe, op.cit., p. 49.

[47] E.H. Carr, The Twenty Years’ Crisis, 1919-1939, London: Papermac, 1995 (orig. Macmillan 1939), p. 17. See also p. 9: „…while the transmutation of lead into gold would be no nearer if everyone in the world passionately desired it, it is undeniable that if everyone really desired a ‘world-state’ or ‘collective security’ (and meant the same thing by those terms), it would be easily attained…”

[48] Marina S. Finkelstein and Lawrence S. Finkelstein, ‘The Future of Collective Security’, p. 255.

[49] Ibid. Which leads me to think that if united Europe would put its full weight into the Security Council, this could be achieved

[50] Hinsley, Sovereignty, p. 227.

[51] Hinsley, Sovereignty, p. 227.

[52] Maurice Bourquin, ‘Grotius et les tendances actuelles du droit international’, Revue de Droit International er de Legislation Comparee, p. 104 (1926), in : Korowicz, ‘Writings of Twentieth Century Publicists’, in: Larson, Jenks et al. (eds.), Sovereignty within the Law, p. 425. See also Maurice Bourquin, Collective Security, Paris: International Institute of  Intellectual Coopoeration, 1936.

[53] Dafoe, op.cit., p. 49.

[54] Karl Jaspers, The Origin and Goal of History, London: Routledge & Kegan Paul, 1953, pp. 197-8 (emphasis added).

[55] Indeed, „just as we would not regard as fully civilized a national system which rested not on the residuary jurisdiction of the courts but on private contracts between citizens, a network of bilateral and regional treaties is no compensation for the central organization’s lack of power to impose binding terms of settlement.” Martin, Collective Security, p. 97.

[56] Martin, Collective Security, p. 24-5.

[57] Martin, Collective Security, p. 49.

[58] Martin, Collective Security, p. 79/80.

[59] Report of the Military Staff Committee on the General Principles Governing the Organization of the Armed Forces made available to the Security Council by Member Nations of the United Nations, Article 10, UN Document S/336, in Martin, Collective Security, p. 159.

[60] According to Article 106 of the Charter, it is the responsibility of the five Great Powers ‘to consult’ with one another and, as occasion requires, with other Members ‘with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security’. See also Goodrich, Hambro and Simons, Charter of the United Nations, p. 319; this may include the “possibility of an agreement between the Council and the permanent members, which were expected to provide the bulk of the forces and were also charged with special responsibilities for the transitional period…” Ibid.

[61] Martin, Collective Security, p. 156 (emphasis added). Whether ‘public opinion’ was really ‘not ripe’ may be questionable, however.

[62] Martin, Collective Security, p. 159 (emphasis added).

[63] Charter, Article 43 (3). See also Goodrich, Hambro and Simons, Charter of the United Nations, p. 319.

[64] Martin, Collective Security, p. 159 (emphasis added).

[65] See Klaus Schlichtmann, ‘A Draft on Security Council Reform’, Peace and Change, vol.24, no.4 (October 1999), pp. 505-35, and Klaus Schlichtmann, ‘A Short History of the “Constitutional Law of Peace” and its Possible Application in the Light of Article IX of the Japanese Constitution’, Indian Journal of International Law, vol.39, no.2 (April-June 1999), pp. 291-310.

[66] This was also Karl Jaspers’ concern (The Origin and Goal of History). General Assembly Resolution 267 (III), April 14, 1949, suggested that the use of the veto should be limited to questions of  “vital importance, taking into account the interests of the United Nations as a whole.” See Finkelstein and Finkelstein, ‘The Future of Collective Security’, p. 265, stating this was “consistent with the expectations in 1945 as to the purposes for which the veto might be employed.”

[67] Carnegie Commission on Preventing Deadly Conflict, Preventing Deadly Conflict. Final Report, New York: Carnegie Corporation of New York, December 1997, pp. 135 and 129 respectively.

[68] Andreas Stein, Der Sicherheitsrat der Vereinten Nationen und die Rule of Law: Auslegung und Rechtsfortbildung des Begriffs der Friedensbedrohung bei himanitären Interventionen auf der Grundlage des Kapitels VII der Charta der Vereinten Nationen, Baden-Baden’ Nomos, 1999, 394, quoted in Fassbender, ‘Review Essay’, p. 224.

[69] It is an interesting question whether the delegation of powers is recognizable as “a principle of international law” under Article 38, paragraph 1 (c), of the ICJ Statute, as Danesh Sarooshi has maintained in a recent work, i.e. that the “constitutions of a large number of States, both from common and civil law systems, allow their organs of government to delegate powers.” Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers, Oxford: Clarendon Press, 1999, p.16, quoted in Fassbender, ‘Review Essay’, p. 229.

[70] Also little known, Article 10 of the US-Japan Security Treaty stipulates: “This Treaty shall remain in force until in the opinion of the government of Japan and the United States of America there shall come into force such United Nations arrangement as will satisfactorily provide for the maintenance of international peace and security in the Japan area.”

[71] See the U.N.‑Res: ‘The Right of Peoples to Peace’, which, however, is not binding.

[72] See Reinhard Brandt, ‘Über die einzig mögliche Aufgabe des Staates: Die globale Rechtsverwirklichung’, Der Staat , vol. 27, no. 4 (1988), pp. 505‑522.

[73] Fassbender, ‘Review Essay – Quis judicabit?, p. 232. Yet, it may indeed be more than doubtful whether “[l]egally, the Council is [already] well equipped to carry out its mandate of safeguarding international peace and security,” as Fassbender  maintains, ibid.

 

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Human, All too Human

284 The means to real peace. -

No government nowadays admits that it maintains an army so as to satisfy occasional thirsts for conquest; the army is supposed to be for defence. That morality which sanctions self-protection is called upon to be its advocate. But that means to reserve morality to oneself and to accuse one‘s neighbour of immorality, since he has to be thought of as ready for aggression and conquest if our own state is obliged to take thought of means of self-defence; moreover, when our neighbour denies any thirst for aggression just as heatedly as our State does, and protests that he too maintains an army only for reasons of legitimate self-defence, our declaration of why we require an army declares our neighbour a hypocrite and cunning criminal who would be only too happy to pounce upon a harmless and unprepared victim and subdue him without a struggle. This is how all states now confront one another: they presuppose an evil disposition in their neighbour and a benevolent disposition in themselves. This presupposition, however, is a piece of inhumanity as bad as, if not worse than, a war would be; indeed, fundamentally it already constitutes an invitation to and cause of wars, because, as aforesaid, it imputes immorality to one‘s neighbour and thereby seems to provoke hostility and hostile acts on his part. The doctrine of the army as a means of self-defence must be renounced just as completely as the thirst for conquest. And perhaps there will come a great day on which a nation distinguished for wars and victories and for the highest development of military discipline and thinking, and accustomed to making the heaviest sacrifices on behalf of these things, will cry of its own free will: ,we shall shatter the sword‘ - and demolish its entire military machine down to its last foundations. To disarm while being the best armed, out of anelevation of sensibility - that is the means to real peace, which must always rest on a disposition for peace: whereas the so-called armed peace such as now parades about in every country is a disposition to fractiousness which trusts neither itself nor its neighbour and fails to lay down its arms half out of hatred, half out of fear. Better to perish than to hate and fear, and twofold better to perish than to make oneself hated and feared - this must one day become the supreme maxim of every individual state! - As is well known, our liberal representatives of the people lack the time to reflect on the nature of man: otherwise they would know that they labour in vain when they work for a ,gradual reduction of the military burden‘. On the contrary, it is only when this kind of distress is at its greatest that the only kind of god that can help here will be closest at hand.  The tree of the glory of war can be destroyed only at a single stroke, by a lightning-bolt: lightning, however, as you well know, comes out of a cloud and from on high. (R.J. Hollingdale, transl., Human, All Too Human. A Book for Free Spirits, Cambridge Texts in the History of Philosophy (1996), pp. 380-81)

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