Wednesday, November 13, 2019

UN Charter and Exclusion of War in National Constitutions

The UN Charter begins with the following “we the people 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. However, the word war cannot be found elsewhere in the Charter. This raises a multitude of questions on war. In history, war was not banned and it was until the end of World War I that the first document was agreed which provided for limited use of war and the UN Charter went further in stipulating the principles of non-recourse to threat or use of force. Exceptions were “effective collective measure” and “legitimate rights of self defence”.

Understanding that international law allows the use of force for self defence, the majority of countries had war-power clause in their constitutions, some defeated countries had clause limiting the army and war and neutral countries committed themselves to participating in no wars between other countries. Collective security foreseen in the Charter as an effective measure to prevent war did not work out well and a new legal document would be difficult. Proposals have been put out to formulate a political declaration, expressing the international community’s concern over wanton use of force and a declaration opposing the use of preventive self defence etc. In all this the European Union is a good example and can play a role. ASEAN can also play a role.

 

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