Commentary / Japan

U.N. Charter’s anachronistic enemy state clauses

by Hitoki Den

Few people may have heard or know about the “enemy state” clauses that still exist in the Charter of the United Nations. The clauses, incorporated into the charter by the victorious Allied powers when the organization was created in 1945, spell out discriminatory arrangements against the former enemy states of World War II.

Article 53 of the U.N. Charter provides that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state,” thus allowing, theoretically at least, enforcement action to be taken without the council’s authorization in the event that the former enemy states challenge international peace and security. Article 107 justifies action taken by the Allied powers against the former WWII enemy states, while Article 77 contains reference to enemy states in relation to the U.N. trusteeship.

While it is widely believed that the enemy state clauses have become obsolete, totally irrelevant in today’s global politics, their existence in the charter, more than seven decades after the founding of the world body, remains an embarrassment for the countries defined as former enemy states, as well as for the U.N. itself.

Since its inception, the U.N. has opened its doors for all “peace-loving” states accepting the obligations contained in the charter to become its members and as a result, its membership has nearly quadrupled to 193 from 51. It is high time the U.N. shed its image as an institution created by the victorious Allied powers and become an organization ensuring a level playing field for all member states and their peoples in both name and substance.

For Japan, a respected member of the U.N. that now pays nearly 10 percent of its regular budget and has been elected as a non-permanent member of the Security Council for 11 times, the existence of the enemy state clauses is more than symbolic. Russia, for example, has cited in the past Article 107, in addition to the Yalta Treaty of 1945, to justify its territorial claims over the disputed islands off Hokkaido seized by Soviet troops at the end of WWII.

Japan, together with other former Axis powers, demanded the removal of the enemy state clauses in the 1990s following the end of the Cold War. Their efforts resulted in a General Assembly resolution adopted during the 50th anniversary session in 1995, in which the U.N. expressed “its intention to initiate the procedure … to amend the Charter, with prospective effect, by the deletion of the ‘enemy State’ clauses from Articles 53, 77 and 107 at its earliest appropriate future session.”

The adoption was nearly unanimous with 155 affirmative votes, none against and three abstentions (Cuba, North Korea and Libya). The U.N. also reaffirmed its resolve to delete “references to enemy states” in the charter in a historic declaration adopted at the 2005 World Summit commemorating the 60th anniversary of the U.N.’s founding.

The enemy state clauses, however, remained unchanged today because the revision of the U.N. Charter, which is an international treaty, requires cumbersome procedures — not only must it be adopted with a two-thirds majority vote in the General Assembly but also ratified by two thirds of the U.N. members, including all of the five permanent members of the Security Council — Britain, China France, Russia and the U.S.

In addition, some member states fear that the removal of the enemy state clauses might prompt a host of demands for more controversial revisions of the charter, including an expansion in the number of permanent members on the Security Council. Others think that removal of the enemy state can wait until agreement on more substantive issues, such as reform of the Security Council, is reached. The proposed deletion of the enemy state clauses from the U.N. Charter has thus been put on the shelf for more than 20 years since the General Assembly expressed its intention to remove them in 1995.

The U.N. made a fresh start in 2017 with new Secretary-General Antonio Guterres taking office Jan. 1. Considering the negative image that the existence of the enemy state clauses continues to generate for the U.N., its member states, particularly Japan and other countries that are still defined as enemy states in the charter, should rekindle the move aimed at deleting all the reference to enemy states sooner than later.

One way to expedite the process would be to delink the issue from other more controversial issues that also require the charter’s revision, such as reform of the Security Council for which progress has been slow. With the arrival of the new secretary-general, it is hoped that fresh momentum would be generated this year for the U.N. to settle the long-standing issue once and for all.

Former U.N. official Hitoki Den is a commentator based in New York. He is the author of “Kokuren wo Yomu: Watashino Seimukan Noto Kara” (“A Story of the U.N.: From the Notes of a Political Affairs Officer”) and many articles on U.N. and Asian issues.