Enemy state clause

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The enemy states clause is a passage in Articles 53 and 107 as well as a half-sentence in Article 77 of the Charter (or Statute ) of the United Nations (SVN), according to which the signatory states would impose coercive measures against enemy states of the Second World War without special authorization by the UN Security Council could, if the enemy states should pursue an aggressive policy again . This also includes military interventions . "Enemy states" are defined in Article 53 as those states that were enemies of a signatory state of the UN Charter during the Second World War (i.e. primarily Germany and Japan - strictly speaking, the German Reich and the Japanese Empire ).

In today's international politics , the enemy state clause does not play a role. According to the prevailing opinion in international law, it is (long) obsolete .

Origin and further development

Articles 53 (Chapter “Regional Agreements”), 77 (Chapter “The International Fiduciary System”) and 107 (Chapter “Transitional Provisions Concerning Security”) SVN were created in 1945 when the original version of the Charter was formulated in the final phase of the war however, it is still included in the currently valid version.

In 1995, the 50th General Assembly of the United Nations passed a resolution on charter issues (Res. 50/52), in which the enemy state clause from Articles 53, 77 and 107 was described as obsolete. A deletion of the clause would therefore only have a declaratory effect. The resolution passed in 1995 stipulated that the deletion of the 'enemy State' clauses from Articles 53, 77 and 107 at its earliest appropriate future session should take place in one of the next meetings or as early as possible " ). Nevertheless, the situation remains unchanged.

After the conclusion of the Nuclear Non-Proliferation Treaty of 1969, the United States of America , the United Kingdom and France had declared that Articles 53 and 107 of the UN Charter did not grant the right to violent intervention in Germany. Something similar was agreed in the Eastern Treaties with the Soviet Union and thus also with Russia . In 1994 the General Assembly of the UN emphasized "repeatedly the importance of the former enemy states for the United Nations as active agents of the UN peace efforts." The Foreign Office also takes the view that Articles 53 and 107 are obsolete because the Allies are two-plus Fourth Treaty have excluded their occupation rights from continuing to have an effect under international law (Art. 7, Paragraph 1).

Since the enemy state clauses do not prohibit invocations to the UN Security Council, bilateral agreements not to regard former enemy states as such are not in conflict with the statutes of the United Nations. Due to the practice of international law and the agreement with the former victorious powers, it is now generally recognized that after the procedure of the opinio iuris the main features of the clause are now different.

It is now only the task of the International Law Commission of the United Nations to work this out, which has not yet happened, but is also not relevant.

According to the generally accepted view, punishment before the UN Security Council is definitely appropriate, because without further justification under international law , a state can no longer attack the enemy states in the clause, so the Security Council must always be called upon (in addition to other obstacles to a direct attack) .

Interpretation under international law

In contrast to the law of the European Union or other supranational organizations, international treaty law does not break customary international law . The International Court of Justice includes customary law as a possible source in its decisions. This is also the case if Article 53 of the UN Charter stated something else or even contradicting it. The states concerned have waived the clauses as part of the Nuclear Non-Proliferation Treaty and now refer to themselves as friendly states .

Individual evidence

  1. ↑ Clemens E. Ziegler: Kosovo War of NATO 1999 and Iraq War 2003. International law study of the universal prohibition of violence and its exceptions. Peter Lang, Frankfurt am Main 2009, ISBN 978-3-631-58021-9 , p. 191, note 338 .
  2. ↑ Christina Binder: The limits of contractual loyalty in international law using the example of subsequent changes in circumstances (= contributions to foreign public law and international law, Volume 245). Springer, Heidelberg 2013, ISBN 978-3-642-35093-1 , p. 268 f. , 298-300 mwN
  3. ↑ Resolution 50/52 on Charter issues ( Memento of August 24, 2011 in the Internet Archive )
  4. ^ The Reform Commission in its report to the UN General Assembly , December 5, 1995.
  5. ↑ Josef Isensee / Paul Kirchhof , Handbook of Constitutional Law of the Federal Republic of Germany , Vol. VIII. The Unity of Germany - Development and Fundamentals , CF Müller, Heidelberg 1995, p. 218.
  6. ↑ Cf. the statement of the Foreign Ministers of the Western Powers on the occasion of the signing of the Nuclear Non-Proliferation Treaty on November 28, 1969, verbatim in: Zeitschrift für Rechtssppolitik (ZRP) 1970, p. 182, note 15; Werner Trützschler von Falkenstein, The changing meaning of the enemy state articles (Articles 53 and 107 of the statute of the United Nations) for Germany (= Augsburger Schriften zum Staats- und Völkerrecht; Vol. 5), Herbert Lang, 1975.
  7. ↑ See Wolfgang Graf Vitzthum / Alexander Proelß (eds.), Völkerrecht , 7th edition, 2016, Rn. 187 .
  8. ↑ For more information, Gregor Schöllgen , Die Außenpolitik der Bundes Republik Deutschland , 3rd edition 2004, pp. 96-108 , here pp. 103 ff. AA Wilhelm Wengler , in: Juristenteitung 1970, p. 633.
  9. ↑ So Christina Binder, The Limits of Contract Loyalty in Völkerrecht , Heidelberg 2013, p. 298 . It also described the UN enemy state clauses in its resolution 49/58 as irrelevant, cf. on this, Binder (2013), p. 300.
  10. ↑ See in particular the wording of the official translation of the report of the Special Committee on the Charter and the Strengthening of the Role of the United Nations (A / 50/642 and Corr. 1) of December 11, 1995 ( Memento of August 24, 2011 on the Internet Archives ): “The General Assembly [...], whereas the 'enemy states' clauses in Articles 53, 77 and 107 of the Charter have become obsolete in view of the far-reaching changes that have occurred in the world, [... ] Taking into account the complex process involved in amending the Charter, [...] expresses its intention [...] to follow the procedure for amending the Charter, as provided for in Article 108 of the United Nations Charter, with forward-looking Effect to initiate by deleting the 'enemy states' clauses in Articles 53, 77 and 107 […]. ”See also Official Minutes of the General Assembly, Fiftieth Session, Appendix 52 =  VIII. Resolutions based on the Report te of the Sixth Committee , pp. 419–421, here p. 420 (PDF).
  11. ↑ Three letters and a state secret , in: Die Zeit , No. 21/2009 of September 8, 2009.
  12. ^ Elaboration of a catalog of questions on international law by Thomas Wana (PDF), accessed on March 31, 2014.
  13. ↑ Hanspeter Neuhold , Waldemar Hummer , Christoph Schreuer: Austrian manual of international law . 4th edition, Vienna 2005, ISBN 3-214-14913-X .
  14. ↑ IGH statute ( Memento of June 29, 2011 in the Internet Archive )

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