When the Allied powers of World War II drafted the United Nations Charter, they sought to establish a global system of collective security. Its aim was to “save succeeding generations from the scourge of war.” With its adoption, all UN member states undertook to settle disputes exclusively by peaceful means. Decisions on the use of force were to be taken collectively (initially by eleven and now by fifteen members of the UN Security Council).

Yet the UN Charter contains an exception—the so-called ‘enemy states clause’ in Articles 53, 77, and 107—that has largely been forgotten today. It grants the former Allied powers the right to take military action against the former Axis powers without a Security Council mandate, in order to prevent renewed aggression from the former Axis powers. With the UN Security Council expressly excluded from this provision, each of the former Allies is free to assess for itself whether a former Axis power is once again adopting an aggressive stance.

By far the most important Axis powers to which the ‘enemy states clause’ referred were Germany and Japan. But does this clause apply to these countries today, more than 80 years after the end of WWII? The German government answers this question with an unequivocal ‘no.’ However, the legal situation does not appear unambiguous.

The German government argues that the ‘enemy states clause’ has long become obsolete. It refers to the 1995 UNGA Resolution 50/52, which “recognized that, having regard to the substantial changes that have taken place in the world, the ‘enemy State clauses’ have become obsolete.”

The German government points to the fact that reunified Germany is now one of the peace-loving members of the United Nations. Even before that, it argued that the four Allied Powers had waived their special rights vis-à-vis Germany in the 1990 Two-Plus-Four Treaty, including the right arising from the ‘enemy states clause’.

But do these arguments hold water? Here are a few considerations.

1. The ‘enemy states clause’ was never removed from the UN Charter.

The wording of the 1995 UNGA Resolution 50/52 does not indicate that ‘enemy states clause’ is now permanently invalid. Following a report from the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization which recommended deletion of the clauses, the Resolution only “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.” However, there has been no follow-up resolution. Hence the text of the UN Charter remains unchanged.

If, at some time in the future, Germany were no longer regarded as a peace-loving state, could the ‘enemy states clause’ be applied again? There is no clear-cut answer to that.

2. Resolutions of the UN General Assembly are not legally binding.

UN resolutions are generally of a recommendatory nature. Under the UN Charter, binding decisions can, in principle, only be taken by the Security Council. However, there has never been a Security Council resolution formally repealing the ‘enemy states clause’. The relevant provisions therefore remain in the text of the Charter.

3. Removing the clause would require an amendment to the UN Charter.

Removing the ‘enemy states clause’ would require a formal amendment procedure in accordance with the rules of the Charter. This would presumably also require ratification of this amendment by all UN member states. Nothing of the sort has happened, and the relevant articles therefore remain in force.

4. The Two-Plus-Four Treaty cannot amend the UN Charter.

Whilst the 1990 Two-Plus-Four Treaty is a legally binding treaty under international law, a treaty between Germany and the four Allied powers cannot decide on an amendment to the Charter. Nor does the Treaty contain any reference to an explicit repeal of the’ enemy states clause’ in the UN Charter.

5. Russia could potentially terminate the 1990 Two-Plus-Four Treaty.

Russia could argue that Germany has violated the spirit and letter of the Two-Plus-Four Treaty, for example, by participating in NATO’s war against Yugoslavia in 1999, stationing its troops in Lithuania, or establishing NATO military structures on the territory of the former GDR. 

In view of the growing tensions between Germany and Russia, the ‘enemy states clause’ could regain political significance in this conflict.[1] Russia might attempt, as it has already warned, to use it as justification for a military operation against German production facilities manufacturing long-range drones for Ukraine. It could argue that by supporting Ukraine militarily, Germany has effectively become part of the confrontation. Furthermore, Russia could point out that the German Government has developed a new military strategy directed exclusively against Russia. Worse, it could be argued that the last German military strategy was drawn up in 1939 and led directly to WWII.

By applying the ‘enemy states clause’—or even merely threatening to do so—Germany could find itself haunted by its past. Can Germany count on international support in such a scenario?

The German Government should not only consider the possibility of this clause’s enforcement but remember that, given its past, it has a special obligation to work towards a peaceful resolution of the Ukraine war, to avoid its escalation, and not to exacerbate political tensions. At the time of increasing military confrontation in Europe, it would be reasonable—and prudent—to re-establish dialogue with Russia and seek ways to de-escalate the situation.