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Some Considerations about the World without War or Nuclear Weapons
Toshinori Yamada
The prophetic Doomsday Clock now pointing to 100 seconds before midnight is an auspicious wake-up call to abolish war and to abolish nuclear weapons. In this essay, I (the author) address this symbolic warning to avoid destruction of the planet and the extinction of humanity. I argue for the abolition of war and of nuclear weapons by tracing the legal history in the movement to outlaw war. Guidelines for achieving these aims through internationally binding laws and treaties were found in the UN Charter, in the Nuclear Non-Proliferation Treaty (NPT), in resolutions made by the UN General Assembly, and interpretations made by the International Court of Justice (ICJ).
1. According to the Kellogg?Briand Pact in 1928, "war" has already been abolished. Article 1 states, "The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another.” To “condemn recourse to war” was, in part of a populist "movement to outlaw war" in the United States.
In the process of creating this treaty, a number of countries reserved their "right of self-defense." This reservation meant that such self-defense would not be included in the definition of “war.” It meant that only the use of force initiated with an intention of fighting (animus belligerendi) will would be included in the definition of "war" and only that was to be condemned.
The resolve to abolish war in this treaty was further compromised when bilateral relations were divided in two parts, wartime and peacetime, and in different legal contexts (peacetime international law and wartime international law). These differentiations have been reversed since, and at present, there is no differentiation in international laws between wartime and peacetime.
he UN Charter itself does not refer to, or define conditions of "war" except in reference to past wars. Instead, it bans the use of force as a principle. The UN Charter prohibits the use of force in both in a de jure and in a de facto war and also "the threat of force" (Article 2.4 of the UN Charter).
However, in practice, there have been major exceptions to UN Charter’s ban on the use of force, in which military action and the use of force have been justified. The UN Charter explicitly states the military measures of the UN Security Council (Chapter VII of the Charter) and “the inherent right of individual or collective self-defense” (Article 51) are regarded as exceptions to Article 2.4.（※1） Much of the use of force by states since the creation of the United Nations has been based on one of these two exceptions. The actions that are actually taking place with the use of these forces are the same as "war." By allowing the two exceptions, the UN Charter has legitimized and upheld the use of force when initiated by the UN Security Council or when used in self-defense.
Hence one might say that there is a self-contradictory tension between the principle to ban the use of force and these exceptions. While the use of force is banned and illegal in principle and as a first rule, however, the original wrongfulness of the use of force, based on the Security Council measures or in self-defense, is precluded as a secondary rule. It is worthwhile to note that principle is principle. From this standpoint the norm prohibits the use of any force or war, and the Security Council measures and the right to self-defense exist to support the principle in theory though not necessarily in action.
Although the Charter of the United Nations seems to have receded from the standpoint that Article 9 of the Constitution of Japan has banned the waging of war, including self-defense war, it is important to understand that the aim of the UN Charter was to ensure that the force used in such exceptions was not abused.
The role of the Security Council has been extensively discussed as the responsibility to protect (e.g., 2005 World Summit). However, as for self-defense rights, the International Court of Justice (ICJ) rulings indicate a wide range of views on the requirements for its enforcement among nations, and that self-defense rights may have been abused by nations.
Resolutions of the UN General Assembly help to build a common understanding of what the abuse of the right to self-defense means and how to prevent it. For example, the UN General Assembly has adopted a resolution on "definition of aggression" and has provided guidance for its decision on "aggression" as recognized by the Security Council (UNGA Resolution 3314 of 1974). Although this has only advisory effects and is not legally binding on the Security Council, it is now referred to as the International Criminal Court Statute’s definition of a crime of aggression.
2. The key to realize a "world without war" without the need to the exercise of the right to self-defense is to prevent the occurrence of an "armed attack." It is important to resolve the dispute peacefully before the armed attack. In this regard, both the Anti-War Treaty (i.e., the Kellogg?Briand Pact: Article 2) and the United Nations Charter (Article 2.3) mandate peaceful resolution of disputes/conflicts. The obligation to peacefully resolve disputes and the principle of banning the use of force are two sides of the same coin. When war was not outlawed, international disputes could be settled by war. Making war illegal and the expectation to resolve disputes by peaceful means other than war are mutually supportive aims. The pursuit of a "world without war" is also the pursuit of a "world that resolves disputes peacefully".
International courts, such as the ICJ, can potentially play a vital role in the movement to make war illegal. However, the current ICJ is not structured for prevention of conflicting parties to resort to the use of force; nor does it have compulsory jurisdiction over all countries in the international community. Beyond the post-conflict trials used in international courts, conflict resolution methods that prevent the use of force, need to be explored.
3. The Single maritime boundary established between Guyana and Suriname was an international ruling that warships issuing warnings in disputed waters are regarded as threatening of force. The ruling was a precedent for distinguishing between law enforcement activities at sea and the use and threat of force. Police action by warships in disputed waters, in some cases, would also be considered as an intimidation by armed forces (illegal acts). This would limit military activity in the name of law enforcement in disputed waters. On the other hand, parties to the disputes may dismiss such restrictions and may not recognize that such waters are disputed.
4. If intimidation by armed forces is prohibited as the threat of force in order to resolve disputes peacefully, then there is a need to cultivate methods for peaceful disputes resolution as well as methods for disarmament. In order for war to be outlawed, peaceful preventive, dispute resolution must be ensured, and disarmament must also be an expectation for the parties involved.
Unlike the Covenant of the League of Nations, the Charter of the United Nations does not specify member states' disarmament obligations. Instead, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States adopted by the UN General Assembly affirms the principle of no use of force. It states: “All States shall pursue in good faith negotiations for the early conclusion of a universal treaty on general and complete disarmament under effective international control and strive to adopt appropriate measures to reduce international tensions and strengthen confidence among States.”
Article 6 of the Nuclear Non-Proliferation Treaty (NPT) also stipulates the necessity of good faith negotiations for a treaty on general and complete disarmament. Especially nuclear disarmament is necessary because they are intricately linked to other weapons of mass destruction and conventional weapons.
5. Finally, the rationale for the abolition of war and the abolition of nuclear weapons may be found in the preambles to the United Nations Charter and the NPT. In the UN Charter, it is stated that “WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…” The NPT preamble states that “Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples…”
The starting point is the commitment to the absolute unacceptability of war and nuclear weapons based on awareness of its cruelty. Extending this commitment to raise awareness of those who have not lived the horrors of war is to build the moral, ethical and spiritual foundation for visioning, building and sustaining a peaceful world ? a world without nuclear weapons and war.
1. According to the Kellogg?Briand Pact in 1928, "war" has already been abolished. Article 1 states, "The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another.” To “condemn recourse to war” was, in part of a populist "movement to outlaw war" in the United States.
In the process of creating this treaty, a number of countries reserved their "right of self-defense." This reservation meant that such self-defense would not be included in the definition of “war.” It meant that only the use of force initiated with an intention of fighting (animus belligerendi) will would be included in the definition of "war" and only that was to be condemned.
The resolve to abolish war in this treaty was further compromised when bilateral relations were divided in two parts, wartime and peacetime, and in different legal contexts (peacetime international law and wartime international law). These differentiations have been reversed since, and at present, there is no differentiation in international laws between wartime and peacetime.
he UN Charter itself does not refer to, or define conditions of "war" except in reference to past wars. Instead, it bans the use of force as a principle. The UN Charter prohibits the use of force in both in a de jure and in a de facto war and also "the threat of force" (Article 2.4 of the UN Charter).
However, in practice, there have been major exceptions to UN Charter’s ban on the use of force, in which military action and the use of force have been justified. The UN Charter explicitly states the military measures of the UN Security Council (Chapter VII of the Charter) and “the inherent right of individual or collective self-defense” (Article 51) are regarded as exceptions to Article 2.4.（※1） Much of the use of force by states since the creation of the United Nations has been based on one of these two exceptions. The actions that are actually taking place with the use of these forces are the same as "war." By allowing the two exceptions, the UN Charter has legitimized and upheld the use of force when initiated by the UN Security Council or when used in self-defense.
Hence one might say that there is a self-contradictory tension between the principle to ban the use of force and these exceptions. While the use of force is banned and illegal in principle and as a first rule, however, the original wrongfulness of the use of force, based on the Security Council measures or in self-defense, is precluded as a secondary rule. It is worthwhile to note that principle is principle. From this standpoint the norm prohibits the use of any force or war, and the Security Council measures and the right to self-defense exist to support the principle in theory though not necessarily in action.
Although the Charter of the United Nations seems to have receded from the standpoint that Article 9 of the Constitution of Japan has banned the waging of war, including self-defense war, it is important to understand that the aim of the UN Charter was to ensure that the force used in such exceptions was not abused.
The role of the Security Council has been extensively discussed as the responsibility to protect (e.g., 2005 World Summit). However, as for self-defense rights, the International Court of Justice (ICJ) rulings indicate a wide range of views on the requirements for its enforcement among nations, and that self-defense rights may have been abused by nations.
Resolutions of the UN General Assembly help to build a common understanding of what the abuse of the right to self-defense means and how to prevent it. For example, the UN General Assembly has adopted a resolution on "definition of aggression" and has provided guidance for its decision on "aggression" as recognized by the Security Council (UNGA Resolution 3314 of 1974). Although this has only advisory effects and is not legally binding on the Security Council, it is now referred to as the International Criminal Court Statute’s definition of a crime of aggression.
2. The key to realize a "world without war" without the need to the exercise of the right to self-defense is to prevent the occurrence of an "armed attack." It is important to resolve the dispute peacefully before the armed attack. In this regard, both the Anti-War Treaty (i.e., the Kellogg?Briand Pact: Article 2) and the United Nations Charter (Article 2.3) mandate peaceful resolution of disputes/conflicts. The obligation to peacefully resolve disputes and the principle of banning the use of force are two sides of the same coin. When war was not outlawed, international disputes could be settled by war. Making war illegal and the expectation to resolve disputes by peaceful means other than war are mutually supportive aims. The pursuit of a "world without war" is also the pursuit of a "world that resolves disputes peacefully".
International courts, such as the ICJ, can potentially play a vital role in the movement to make war illegal. However, the current ICJ is not structured for prevention of conflicting parties to resort to the use of force; nor does it have compulsory jurisdiction over all countries in the international community. Beyond the post-conflict trials used in international courts, conflict resolution methods that prevent the use of force, need to be explored.
3. The Single maritime boundary established between Guyana and Suriname was an international ruling that warships issuing warnings in disputed waters are regarded as threatening of force. The ruling was a precedent for distinguishing between law enforcement activities at sea and the use and threat of force. Police action by warships in disputed waters, in some cases, would also be considered as an intimidation by armed forces (illegal acts). This would limit military activity in the name of law enforcement in disputed waters. On the other hand, parties to the disputes may dismiss such restrictions and may not recognize that such waters are disputed.
4. If intimidation by armed forces is prohibited as the threat of force in order to resolve disputes peacefully, then there is a need to cultivate methods for peaceful disputes resolution as well as methods for disarmament. In order for war to be outlawed, peaceful preventive, dispute resolution must be ensured, and disarmament must also be an expectation for the parties involved.
Unlike the Covenant of the League of Nations, the Charter of the United Nations does not specify member states' disarmament obligations. Instead, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States adopted by the UN General Assembly affirms the principle of no use of force. It states: “All States shall pursue in good faith negotiations for the early conclusion of a universal treaty on general and complete disarmament under effective international control and strive to adopt appropriate measures to reduce international tensions and strengthen confidence among States.”
Article 6 of the Nuclear Non-Proliferation Treaty (NPT) also stipulates the necessity of good faith negotiations for a treaty on general and complete disarmament. Especially nuclear disarmament is necessary because they are intricately linked to other weapons of mass destruction and conventional weapons.
5. Finally, the rationale for the abolition of war and the abolition of nuclear weapons may be found in the preambles to the United Nations Charter and the NPT. In the UN Charter, it is stated that “WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…” The NPT preamble states that “Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples…”
The starting point is the commitment to the absolute unacceptability of war and nuclear weapons based on awareness of its cruelty. Extending this commitment to raise awareness of those who have not lived the horrors of war is to build the moral, ethical and spiritual foundation for visioning, building and sustaining a peaceful world ? a world without nuclear weapons and war.
