1950-How the opportunity for transitioning to U.N. Collective Security was missed for the first time
Prof. Klaus Schlichtmann
The mission of the Center for Global Nonkilling is to promote change toward the measurable goal of a killing-free world by means open to infinite human creativity. The goal can be reached by globally advancing nonkilling knowledge and skills, incorporating them into education and training, and applying them in individual and social decisions for the well-being of all. The task calls for infinite creativity and mutual support among all individuals, organizations, and institutions whose work contributes to progress toward the goal of a nonkilling world.
In 1950, at the time of the Korean crisis, the UN, under the leadership of the United States was united to counter the aggression of the North. In this situation Russia made it a condition that it would join forces, if the UN started transitioning to genuine collective security, in accordance with the relevant provision in the Charter. What actually was the idea of the transition, and what did the Russians expect, e.g. of the Germans and the French, with regard to the peace clauses that French and German socialists had succeeded to write into the countries’ new constitutions. What were the consequences of the decisions made at the time?
“Things cannot be forced from the top … The international relinquishing of so- vereignty would have to spring from the people—it would have to be so strong that the elected delegates would be turned out of office if they failed to do it … We must face the truth that the people have not been horrified by war to a sufficient extent to force them to go to any extent rather than have another war … War will exist until that distant day when the conscientious objector enjoys the same reputation and prestige that the warrior does today.” (John F. Kennedy as a young journalist attending the San Francisco UN Conference in June 1945)2
“History is, as a rule, about the when and where of what was done by whom and even, sometimes, about the why. Over- whelmingly, focus is on the done … what was (and is) not do- ne tends stalwartly to be considered at best historically uninteresting and at worst not history at all.”3
The subject I am presenting is likely to have important consequences for the future of peace. As is well known a- mong peace historians, at the Hague Peace Conferences, 1899 and 1907, when the nations represented voted on the “obligatory arbitration” powers of the international court, Germany twice cast a veto. So, the Conferences failed to achieve their most important objectives, disarmament and an international legal order to secure peace. Some forty years later in the new German constitution the mistake made at The Hague was acknowledged and an obligation entered to submit to the I.C.J.’s compulsory jurisdiction, join a system of collective security and never again take part in aggressive war.
In 1950, at the time of the Korean crisis, when the United Nations under the leadership of the United States were uniting to fend off the aggression of the North, Russia made it a condition that it would join forces only, if and when the Uni- ted Nations started transitioning to genuine collective security, in accordance with the relevant provision in the U.N. Charter. Since Germany had just previously, in May 1949, adopted a new Constitution providing for delegating security sovereignty to the United Nations in favor of “a system of mutual collective security” and disarming to the minimum stipulated in Article 26 of the U.N. Charter, did the Russians speculate that the Germans would take action to initiate the process of the transition? The German Constitution’s Article 24 reads:
[Article 24, Transfer of sovereign powers – System of col- lective security]
(1) The Federation may by a law [passed with a single majority in parliament] transfer sovereign powers to international organizations.4
(2) With a view to maintaining peace, the Federation may enter into a system of mutual collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a lasting peace in Europe and among the nations of the world.
(3) For the settlement of disputes between states, the Federation shall accede to agreements providing for general, comprehensive and compulsory international arbitration.
It appears that delegating security sovereignty to the U.N. was designed to initiate and facilitate the process of the transition to collective security stipulated in Article 106 of the U.N. Charter which reads (under its Chapter XVII heading: “Transitional Security Arrangements”):
Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations 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.
This was rejected. The Convention Committee maintained that it was “aware that (this meant that) the German people would be called to take the initiative, but it is of the opinion that after the things that have happened in the name of the German people, such an initiative (Vorleistung), which will be followed by corresponding (legislative) action of the other states, is advisable/in order.”
Since the “special agreements referred to in Article 43” have never been concluded, the Security Council has so far de jure not been empowered to function effectively; it has not even ‘begun’ the “exercise of its responsibilities.” In fact, the five Permanent Members of the Security Council (“P5”) can take action even without the ‘mantle of legitimacy’ of the U.N. Charter, and even in a ‘Coalition of the Willing’. Under these circumstances it is argued that Germany, by delegating “security sovereignty” to the U.N. Security Council, could trigger the process of the transition to genuine collective security and disarmament.
It can be said that applying the ‘constitutional law(s) of peace’ (Droit constitutionnel de la paix),5 to put the system of collective security into effect, would be of immense benefit; it enables lawmakers of a single nation to take positive action by law, “which will (then) be followed by corresponding (legislative) action of the other states,”6 entering into a state of contract with the U.N. Security Council to empower the United Nations and give the Security Council a basic law. As far as is discernible this aspect has not received the attention it deserves.
1 This essay is base on a Paper presented at the International Peace Research Associati- on Conference, 10-15 August 2014, Istanbul, Turkey.
2 Quoted in Arthur Meier Schlesinger, A Thousand Days: John F. Kennedy in the White House. Boston, Houghton Mifflin Harcourt 2002 (1965), p. 88-89.
3 Antony Adolf, “Preconditional, Didactic and Predictive Histories. An Introduction to Nonkilling History”, in Antony Adolf (ed.), Nonkilling History: Shaping Policy with Lessons from the Past, Honolulu, Center for Global Nonkilling 2010, p. 13.
4 At the Constitutional Convention of Herrenchiemsee in August 1948, under the chairmanship of social democrat Carlo Schmid, the issue was discussed whether the German article should also state the condition of reciprocity, like the French article.
5 See Boris Mirkine-Guetzévitch, Le droit constitutionnel et l’organisation de la paix (droit constitutionnel de la paix), Recueil des Cours, 3/45 (1933), pp. 676-773, and Mirkine-Guetzévitch, La Renonciation à la Guerre dans le Droit Constitutionnel mod- erne, Revue Héllenique de Droit International, Vol. 4, 1951, pp. 1-16. See also Raphaël Porteilla and Joël Mekhantar (eds.), La Paix et les Constitutions, Dijon, ESKA 2015, who, however, seem not to have covered Mirkine-Guetzévitch and much of the field.
6 Der Parlamentarische Rat 1948-1949, Akten und Protokolle (The Parliamentary Council, Acts and Protocols), vol. 2, Der Verfassungskonvent auf Herrenchiemsee (The Constitu- tional Convention of Herrenchiemsee), Boppard am Rhein, Harald Boldt 1981 (August 1948), p. 207. See also Klaus Schlichtmann, Artikel 9 im Normenkontext der Staatsver- fassungen. Souveränitätsbeschränkung und Kriegsverhütung im 20. Jahrhundert (Article 9 in Context, limitations of national sovereignty and the prevention of war in twentieth century constitutional law), Gewollt oder geworden, Referate des 4. Japanologentages der OAG in Tokyo, ed. by Werner Schaumann, Munich, iudicium 1996, pp. 129-150. An English rendering of the German article is available: Article Nine in Context— Limitations of National Sovereignty and the Abolition of War in Constitutional Law, The Asia-Pacific Journal, vol. 23-6-09 (8 June 2009). (Also online: JAPAN FOCUS)
Prof. Klaus Schlichtmann
was born in Hamburg, Germany, as the son of a medical doctor, in 1944. As a teenager he developed an interest in philosophy, comparative culture, Buddhism, the arts, literature and politics.
He left Germany at the age of 18, and soon after started his Yatra to India, travelling overland through Turkey, Syria, Iraq, Iran and Pakistan.
From 1964 to 1966 he was German lecturer at the Sanskrit Viswavidyalaya in Varanasi (Benares). He spent a number of years in India, doing research and ‘going native’.
After returning to Germany he took up studies at Kiel Uni- versity, where Asian history became his major subject, with international law and political science as his two minor sub- jects.
In 1992 he obtained a scholarship to go to Japan to work on his doctoral thesis about the Japanese pacifist dip- lomat and post-World-War II Prime Minister Kijuro Shide- hara (1872-1951) who is credited with having suggested the war-renouncing Article 9 of the Japanese Constitution to General Douglas MacArthur in January 1946.
Klaus Schlichtmann has published in German, English and Japanese, among others on the Hague Peace Conferences, Germany and Japan in the interwar period, U.N. Reform, H.G. Wells, Gandhi and related subjects. His original dissertation (Kiel 1997) on Kijuro Shidehara was published in English transla- tion in two volumes in 2009 by Lexington Books, USA with the title Japan in the World. Shidehara Kijuro, Pacifism and the Abolition of War.
He is presently a professor in the language department of Nihon University, Tokyo. He has two sons and one daughter.
1950-transitioning to UN Collective Security