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Campaign to Second A-9 in the UNGA – Japans Antrag auf Abschaffung des Krieges

Erstellt am 21.01.2018 von Andreas Hermann Landl
Dieser Artikel wurde 1500 mal gelesen und am 24.01.2018 zuletzt geändert.

Klaus Schlichtmann shared his news about an initiative in Japan, which is just taking off, and in which he participates in an advisory position. He has been working in Japan with Japanese pacifists for a long time. Thes Pacifists  want to spread an Article 9 around the world. In this regard, I have long argued that Article 9 is a ‘motion’ to abolish war.

 

This is expressed in the title of his book published by LIT-Verlag in 2010,

Friedensverfassungsrecht und kollektive Sicherheit, Japans Antrag auf Abschaffung des Krieges
(Peace Constitutions and Collective Security, Japan’s Motion to Abolish War).

In fact, the eminent professor of public law and philosophy of law, Professor Robert Alexy, who also taught me at Kiel University, wrote to Schlichtmann some years ago in response to a query he had put to him:

„You are asking if the Japanese war-abolishing Article (Kriegsabschaffungsartikel) can be seen as a public law ‘motion’ to abolish war as an institution. In a strict sense, this may not be the case. A public law motion is an initiative that sets in motion a formal legislative process … In that sense this war-abolishing Article is not a legislative initiative. It can be said, however, that it stakes a moral and political claim to the effect that the institution of war should be abolished. This claim is implicit in the logic of the Article. On the basis of this claim, a formal proposition to abolish war as an institution could be made at the international level, especially at the UN.” (Emphasis added)

Schlichmanns Japanese pacifist friends have now launched a campaign to raise the issue of Article 9 at the United Nations General Assembly.

  • Why should it not be possible to make a proposal in the UN General Assembly or to initiate a formal legislative process calculated to abolish war as an institution?
  • The ‘normative current’ of peace constitutions—in particular the articles of the constitutions of France, Italy, Germany and Denmark etc. (see attachment) — suggests that a formal legislative process is possible.

The new „Campaign to Second A-9 in the UNGA“ or

“SA9 Campaign” addresses the more than

20 states in the UN that have no military, and are thereby ideally placed to be foremost in seconding the Japanese motion and adopt Article 9 as the basis for a resolution for the abolition of war as an institution, thereby

a) initiating a debate in the UN General Assembly on the issue, and

b) pass legislation in their parliaments to transfer security sovereignty (“primary responsibility for the maintenance of international peace and security”) to the United Nations Security Council in a National BILLunder Article 24 of the UN Charter.

Some international lawyers may claim that passing legislation in the national parliament to initiate the transition to genuine collective security and disarmament is not an option.

The campainers are calling for an OPEN DEBATE!

If you are interested read the “SA9 Campaign” ‘NEW YEAR PEACE MESSAGE FROM JAPAN’ sent by facsimile and received by all (except one) UN Ambassadors in New York, of the countries that do not have a military or a standing army (plus Timor Leste). (See the attached 8-page document!)

A NEW YEAR PEACE MESSAGE FROM JAPAN (as amended on 3 January)

Tokyo, 2 January 2018

“The international relinquishing of sovereignty 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…” (John F. Kennedy as a young journalist attending the San Francisco United Nations Conference in June 1945)

Dear Ambassador, your Excellency,
Here in Japan we are, like people elsewhere, worried about the state of the world, its peace and security, and the many political, social and environmental problems of today. Having lived in Japan for 25 years, as a European I am also very worried about the situation in Europe. Europe was supposed to be and become a model for world peace, to bring about the next stage in the development of an international organization of peace based on justice and order.
Having come to Japan on a scholarship, I am now the academic advisor to a local group here in Hidaka near Tokyo. Our aim is to get some countries in the United Nations General Assembly to take up the issue of abolishing war as an institution. Having experienced Hiroshima and Nagasaki, the Japanese in their post-war Constitution have moved that war be abolished. Indeed, Article 9 of the Japanese Constitution can be seen as a motion waiting to be seconded. This would start the debate and the transition to genuine collective security and disarmament. The ideal place to do this would be the United Nations General Assembly.
There have been precedents. In 1961 the McCloy-Zorin Accords unanimously adopted in the UN General Assembly in December of that year, aimed at abolishing war. (See Document I in the APPENDIX!)
The UN Charter itself aims at disarmament and a system of collective security that can replace national military institutions. Although this fact is well known, important provisions in the UN Charter as well as in national constitutions have been disregarded and not taken into account. One such provision is Article 106 of the Charter. In 1950 the Russians demanded this Article must be implemented, if Russia was to participate in the United Nations action against the North Korean aggressor. This is the text of the Russian Resolution, submitted for the last time in October 1950:

„The General Assembly, Taking into account the particular importance of concerted action by the five permanent members of the Security Council in defending and strengthening peace and security among nations, „Recommends that before armed forces are placed at the disposal of the Security Council under appropriate agreements concluded in accordance with Article 43 of the Charter, the five permanent members of the Security Council—the Union of Soviet Socialist Republics, the United States of America, the United Kingdom, China and France—should take steps to ensure the necessary implementation of Article 106 of the Charter providing for consultation between them, and that they should consult together in accordance with the said Article 106 of the Charter for the purpose of taking such joint action on behalf of the Organization as may prove to be necessary for the maintenance of international peace and security.“ (Please check facts on the UN website http://legal.un.org/repertory/art106/english/rep_orig_vol5_art106.pdf, p. 381!)

However, to understand the meaning of the transition, you have to acquaint yourself with the original research that went into the making of this article. (Please see Document II in the APPENDIX !)
An important follow-up question is: How would nations embark on the transition? This is where the peace constitutions and the Japanese Article 9 come in.
The Japanese people have, like the Italians and the Danes and others, renounced war in their Constitution, “trusting in the justice and faith of the peace-loving peoples of the world.” (Preamble). This is the text of Article 9:

Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means for settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential will never be maintained. The right of belligerency of the state will not be recognized.

Article 9 was suggested to General Douglas MacArthur by Prime Minister Kijuro Shidehara on 24 January 1946. Shidehara’s proposal appears one week later in the MacArthur Memo (you will find this online), which starts with the sentence: „War as the sovereign right of the nation is abolished.“
In my 1996 doctoral dissertation from Kiel University in Germany I have shown that it was indeed the Japanese Prime Minister who made this suggestion. (See last page!)
If we want to achieve an “international peace based on justice and order,” peace constitutions are relevant in as much as they correspond to and complement the United Nations Charter. (See the list of articles in Document III in the APPENDIX !) We now believe that these Articles, including Article 9, were meant to trigger and initiate the transition stipulated in the UN Charter. However, since no action has been taken so far to implement these provisions and start the process of the transition, our Japanese friends believe that those nations that do not have a military or a standing army could take the initiative and take up the issue in the UN General Assembly.
Our campaign has only just started, but as academic advisor to the campaign I want to inform you and provide you with some basic knowledge tools to achieve the desired end.

With best wishes for a peaceful 2018, I am your sincerely

 

 

Dr. Klaus Schlichtmann (peace historian and activist)

https://klausschlichtmann.academia.edu/research

Memberships:  Chairman West-German World Federalists 1980-1992; International Peace Research Association (IPRA); Peace History Society (PHS); Arbeitskreis Historische Friedensforschung; crisis prevention forum e.v.; WORLD UNION (Pondicherry); Nonkilling History Research Committee, Center for Global Nonkilling (Hawaii); World Federalist Movement (WFM); International Advisory Board, World Constitution and Parliament Association (WCPA)
Address: Nakakayama 452-35, Hidaka city, Saitama-ken, 350-1232 JAPAN
mobile: +81-(0)80-1061-5769
email: kschlichtmann@law.email.ne.jp

This fax has already been received by the New York UN Missions of Andorra, Dominica, Granada, Haiti, Holy See, Iceland, Kiribati, Marshall Islands, Mauritius, Micronesia, Monaco, Saint Lucia, Saint Vincent and Grenadine, San Marino, Solomon Islands, Switzerland, Tuvalu and Vanuatu. In addition UNODA, the International Association of Constitutional Law (IACL-AIDC), and the David Davies Memorial Institute have received copies of this New Year Peace Message

 

APPENDIX

Document I – The McCloy-Zorin Accords (1961)

Having conducted an extensive exchange of view on disarmament pursuant to their agreement announced in the General Assembly on 30 March 1961,

Noting with concern that the continuing arms race is a heavy burden for humanity and is fraught with dangers for the cause of world peace,

Reaffirming their adherence to all the provisions of the General Assembly Resolution 1378 (XIV) of 20 November 1959,

Affirming that to facilitate the attainment of general and complete disarmament in a peaceful world it is important that all states abide by existing international agreements, refrain from any actions which might aggravate international tensions, and that they seek settlement of all disputes by peaceful means,

The United States and the USSR have agreed to recommend the following principles as the basis for future multilateral negotiations on disarmament and to call upon other States to cooperate in reaching early agreement on general and complete disarmament in a peaceful world in accordance with these principles.

  1. The goal of negotiations is to achieve agreement on a programme which will ensure that (a) disarmament is general and complete and war is no longer an instrument for settling international problems, and (b) such disarmament is accompanied by the establishment of reliable procedures for the peaceful settlement of disputes and effective arrangements for the maintenance of peace in accordance with the principles of the United Nations Charter.
  2. The programme for general and complete disarmament shall ensure that States will have at their disposal only those non-nuclear armaments, forces, facilities, and establishments as are agreed to be necessary to maintain internal order and protect the personal security of citizens; and that States shall support and provide agreed manpower for a United Nations peace force.
  3. To this end, the programme for general and complete disarmament shall contain the necessary provisions, with respect to the military establishment for every nation, for;

(a) Disbanding of armed forces, dismantling of military establishments including bases, cessation of the production of armaments as well as their liquidation or conversion to peaceful uses;

(b) Elimination of all stockpiles of nuclear, chemical, bacteriological, and other weapons of mass destruction and cessation of the production of such weapons;

(c) Elimination of all means of delivery of weapons of mass destruction;

(d) Abolishment of the organization and institutions designed to organize the military effort of States, cessation of military training, and closing of all military training institutions;

(e) discontinuance of military expenditures.

  1. The disarmament programme should be implemented in an agreed sequence, by stages until it is completed, with each measure and stage carried out within specified time-limits. Transition to a subsequent stage in the process of disarmament should take place upon a review of the implementation of measure included in the preceding stage and upon a decision that all such measures have been implemented and verified and that any additional verification arrangements required for measures in the next stage are, when appropriate, ready to operate.
  2. All measures of general and complete disarmament should be balanced so that at no stage of the implementation of the treaty could any State or group of States gain military advantage and that security is ensured equally for all.
  3. All disarmament measures should be implemented from beginning to end under such strict and effective international control as would provide firm assurance that all parties are honouring their obligations. During and after the implementation of general and complete disarmament, the most thorough control should be exercised, the nature and extent of such control depending on the requirements for verification of the disarmament measures being carried out in each stage. To implement control over and inspection of disarmament, an International Disarmament Organization including all parties to the agreement should be created within the framework of the United Nations. This International Disarmament Organization and its inspectors should be assured unrestricted access without veto to all places as necessary for the purpose of effective verification.
  4. Progress in disarmament should be accompanied by measures to strengthen institutions for maintaining peace and the settlement of international disputes by peaceful means. During and after the implementation of the programme of general and complete disarmament, there should be taken, in accordance with the principles of the United Nations Charter, the necessary measures to maintain international peace and security, including the obligation of States to place at the disposal of the United Nations agreed manpower necessary for an international peace force to be equipped with agreed types of armaments. Arrangements for the use of this force should ensure that the United Nations can effectively deter or suppress any threat or use of arms in violation of the purpose and principles of the United Nations.
  5. States participating in the negotiations should seek to achieve and implement the widest possible agreement at the earliest possible date. Efforts should continue without interruption until agreement upon the total programme has been achieved, and efforts to ensure early agreement on and implementation of measures of disarmament should be undertaken without prejudicing progress on agreement on the total programme and in such a way that these measures would facilitate and form part of that programme.

 

 

Document II – Quincy Wright, Political Conditions of the Period of Transition

Please check document online at www.unfor.info/transition_text.pdf and print it out to study!

 

Document IIITHE ABOLITION OF WAR: THE NORMATIVE CURRENT

OF CONSTITUTIONAL PROVISIONS LIMITING NATIONAL SOVEREIGNTY TO ACHIEVE COOPERATION, PEACE AND DISARMAMENT

1946: FRANCE: On condition of reciprocity, France accepts the limitations of sovereignty necessary for the organization and defense of peace. (Preamble of the Constitution of 27 October 1946, stands reconfirmed in Constitution of 4 October 1958)

1947: JAPAN: We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. … We recognize that all peoples of the world have the right to live in peace, free from fear and want. (Preamble) Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means for settling international disputes. – In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential will never be maintained. The right of belligerency of the state will not be recognized. (Article 9 of the Constitution of 3 May 1947)

1948: ITALY: Italy renounces war as an instrument of offense to the liberty of other peoples or as a means of settlement in international disputes, and, on conditions of equality with other states, agrees to the limitations of her sovereignty necessary to an organization which will ensure peace and justice among nations, and promotes and encourages international organizations constituted for this purpose. (Article 11 of Constitution of 1 January 1948)

1949: GERMANY: (1) The Federation may by legislation transfer sovereign powers to international organizations. … (2) With a view to maintaining peace the Federation may become a party to a system of collective security; in doing so it shall consent to such limitations upon its sovereign powers as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world. … (Article 24 of the Constitution of 23 May 1949) Commentary on (1): The German article was based on the „corresponding regulation of the French Constitution.“ At the Constitutional Convention of Herrenchiemsee in August 1948 the issue was discussed whether the German article should also specify the condition of reciprocity. This was rejected. The Convention Committee stated that it was “aware that (this meant that) the German people would be called to take the initiative (in advance of all other states), 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.“

1940: COSTA RICA: Public treaties, international agreements and concordats duly approved by the Legislative Assembly shall have a higher authority than the laws [of the land] (Article 7) …. The Army as a permanent institution is abolished. … (Article 12) Public treaties and international conventions extending or transferring certain jurisdictional powers to a communitarian juridical order for the purpose of realizing common regional objectives shall require the approval of the Legislative Assembly by a vote of not less than two thirds of its entire membership. (Article 121, No.4, paragraph 2)(Constitution of 7 November 1949, as amended on 31 May 1968)

1950: INDIA: The State shall endeavor to – (a) promote international peace and security; (b) maintain just and honorable relations between nations; foster respect for international law and treaty obligations in the dealings of organizes people with one another; (d) encourage settlement of international disputes by arbitration. (Article 51) … Parliament has exclusive power to make laws with respect to … 13. Participation in international conferences, associations, and other bodies and implementing of decisions thereat. (Article 246, Constitution of 1950)

1953: DENMARK: Powers which according to this constitution rest with the authorities of the kingdom, can, through a bill, to a specifically defined extent, be transferred to international authorities, which are instituted by mutual agreement with other states to promote international legal order and cooperation. (Article 20, of 5 June 1953)

1971: BELGIUM: The exercises of given powers may be conferred by a pact or law on institutions coming under international civil law. (Article 25 bis, of 29 September, 1971)

1973: LUXEMBOURG: The exercise of the powers reserved by the Constitution to the legislative, executive and judiciary may be temporarily vested by treaty in institutions governed by international law. (Article 49 A., of Constitution of 17 October 1968, as amended on 10 July 1973)

1975: GREECE: II. To serve an important national interest and promote cooperation with other states authorities may be vested by a convention or agreement in agencies of an international organization. A majority of three fifth of the total number of members of Parliament shall be necessary to vote the law sanctioning the treaty or agreement. III. Greece shall freely proceed by law voted by the absolute majority of the total number of members of Parliament, to limit the exercise of national sovereignty, insofar as this is dictated by an important national interest, does not infringe upon the rights of man and the foundations of democratic government and is affected on the basis of the principles of equality and under condition of reciprocity. (Article 28, Constitution of 7 June 1975)

1976 (2011 revised) SWEDEN: Decision-making authority which is directly based on the present Instrument of Government and which relates to the laying down of provisions, the use of assets of the State, tasks connected with judicial or administrative functions, or the conclusion or denunciation of an international agreement or obligation may, in cases other than those under Article 6, be transferred to a limited extent, to an international organisation for peaceful cooperation of which Sweden is a member, or is about to become a member, or to an international court of law. (Chapter 10, Article 7, of the revised Constitution of 2011, originally Chapter 10, Article 5, of similar content)

1976: PORTUGAL: Portugal commends the abolition of all forms of imperialism, colonialism and aggression; general, simultaneous and controlled disarmament; the dissolution of political-military blocs and the establishment of a system of collective security, in order to create an international order capable of assuring peace and justice in relations among peoples. (Article 7 II., of 25 April, 1976)

1978: SPAIN: By means of an organic law, authorization may be established for the conclusion of treaties which attribute to an international organization or institution the exercise of competencies derived from the constitution. It is the responsibility of the Cortes Generals or the Government, depending on the cases, to guarantee compliance with these treaties and the resolutions emanating from the international or supranational organizations who have been entitled by this cession. (Article 93 of Constitution of 29 December 1978)

1981: AUSTRIA: By law or by a State Treaty which must be ratified in accordance with Article 50 (1), specific sovereign rights of the Federation can be transferred to intergovernmental institutions and their organs and the activity of organs of foreign status in Austria as well as the activity of Austrian organs abroad can be regulated within the framework of International Law. (Article 9, paragraph 2, Constitution of 1 July 1981)

1982 (1999 revised): SWITZERLAND: (1) The following shall be submitted to the vote of the People and the Cantons: … b. Entry into organizations for collective security or into supranational communities … (Article 140 of the Constitution of 1999, almost identical to Article 89 V., Constitution of 1982)

1983: THE NETHERLANDS: The Government shall promote the development of the international rule of law. (Article 90) … Legislative, executive and judicial powers may be conferred on international institutions by or pursuant to a treaty… (Article 92, Constitution of 17 February 1983, unchanged in the 2008 Constitution)

NORWAY: In order to secure international peace and security, or in order to promote international law and order and cooperation between nations, the Storting may, by a three-fourth majority, consent that an international organization, of which Norway is or becomes a member, shall have the right, within a functionally limited field, to exercise powers which in accordance with this Constitution are normally vested in the Norwegian authorities, exclusive of the power to alter this Constitution. For such consent as provided above at least two-thirds of the members of the Storting – the same quorum as is required for changes in or amendments to this Constitution – shall be present and voting… (Article 93, Constitution of 17 May 1814, revised 18 September 1905)

IRELAND: For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail or adopt any organ, instrument or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international cooperation in matters of common concern. (Article 29 IV, 2°, originally of 1 July 1937)

CHECHNYA: Article 6. Chechen Republic respecting of the right and freedom of the peoples is guided by conventional principles and norms of international law in external policy. It aims at the general and fair peace based on common human values; to close, business and mutually advantageous cooperation with all countries.
Having acted for expansion of international community based on domination of right Chechen Republic can enter in international organizations, systems of collective safety, interstate formations. (Constitution of Chechen Republic of 12 March 1992; the newly adopted Constitution of 27 March 2003 no longer has this article.)

Klaus Schlichtmann asks to let the campainers know if you want to support and put your name to the “SA9 Campaign.”

Links

Dr. Klaus Schlichtmann (peace historian and activist)

https://klausschlichtmann.academia.edu/research

Chairman, West-German World Federalists 1980-1992; member IPRA; Peace History Society; Arbeitskreis Historische Friedensforschung; crisis prevention forum e.v.; WORLD UNION (Pondicherry); Nonkilling History Research Committee, Center for Global Nonkilling (Hawaii); World Federalist Movement (WFM); International Advisory Board, World Constitution and Parliament Association (Provisional World Parliament delegate)
Nakakayama 452-35, Hidaka city – Saitama-ken, 350-1232 JAPAN
mobile: +81-(0)80-1061-5769
email: kschlichtmann@law.email.ne.jp

 

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