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The Law of Neutrality

Introduction

The law of armed conflict applies to belligerent parties when war breaks out. All other states may either decide to also take part, and become co-belligerents, or may decide that they want to refrain from taking part in the conflict, and become neutral states.1Crawford, E. (2020). The Temporal and Geographic Reach of International Humanitarian Law. In Ben Saul, Dapo Akande (Eds.), The Oxford Guide to International Humanitarian Law, (pp. 57-75). Oxford: Oxford University Press. Neutral states retain the right to not be adversely impacted by hostilities between belligerents. The law of neutrality is found in the Hague Convention’s V and XIII (1907) and applies in various ways to both neutral and belligerent states during an international armed conflict. The law of neutrality aims to localise war and limit hostilities between belligerents only so that international commerce is not unduly affected.2‘The Law of Neutrality’ (1999) 73 Int’l L Stud Ser US Naval War Col 365 It evolved at a time when states issued declarations of war before engaging in conflict and there was a somewhat clearer demarcation between war and peace.3ibid. This no longer occurs, and as a result, the law of neutrality has been subject to some criticism for being outdated.

This month, at the Diplomacy, Law and Policy Forum, we will be looking at this area of the law of armed conflict, analysing the form in which it persists today and the various rights and duties it places on neutral states. Our articles under this theme explore the law of neutrality and its core tenets, its changing nature, its (non)application to non-international armed conflicts, and the difficulties of applying the regime to cyberspace.

The Law of Neutrality

Under customary international law, all states have the right to refrain from engaging in an armed conflict by adopting neutral status. The law of neutrality confers rights (notably that of inviolability) and imposes duties (of impartiality and abstention) on neutral states as well as belligerents in regard to neutral states (to respect their impartiality and insist upon their inviolability).4ibid. The law developed in the nineteenth and twentieth centuries alongside the evolution of the modern concept of sovereignty and the significant increase in international trade and commerce.5Joshua J. Wolff, ‘Interrupted Broadcasts? The Law of Neutrality and Communications Satellites’ (2021) 45 J Space L 239 It rests upon the notion that neutral states are to be protected from the adverse effects of a conflict, whether physically or commercially, so long as they remain impartial and do not participate in it.6Ibid.

Article 1 of Hague Convention V renders a neutral state’s territory inviolable, prohibiting the transporting of troops or munitions through neutral territory (which includes its waters and airspace).7Crawford, E. (2020). The Temporal and Geographic Reach of International Humanitarian Law. In Ben Saul, Dapo Akande (Eds.), The Oxford Guide to International Humanitarian Law, (pp. 57-75). Oxford: Oxford University Press. In order to remain neutral, a state must not engage in hostilities, directly or indirectly; nor provide military assistance to parties to the conflict, through personnel, material or financial aid; nor allow its territory to be used as a base of military operations, as a sanctuary, or as a means of passage for a belligerent.8ibid. In order to maintain its impartiality, a neutral state must not conclude any agreements in peacetime which, for instance, would allow for wartime transit of a belligerent country’s armed forces or munitions through its territory.9Brian F. Havel, ‘An International Law Institution in Crisis: Rethinking Permanent Neutrality’ (2000) 61 Ohio St LJ 167 A permanent neutral would also prevent the establishment of military bases on its territory during times of peace.10ibid.

Moreover, trade with a belligerent does not fall under the Hague Conventions, therefore, neutral states can maintain a level of trade with a belligerent that they had before hostilities without it falling under the scope of the law of neutrality.11Natalino Ronzitti, ‘Neutrality in Contemporary International Law’ (2019) 29 Italian YB Int’l L 536 This was seen in the Second World War with Swiss and Swedish continued engagement with the Nazi regime’s war economy.12Brian F. Havel, ‘An International Law Institution in Crisis: Rethinking Permanent Neutrality’ (2000) 61 Ohio St LJ 167 However, in the current legal order, this may be subject to Security Council sanctions if one belligerent is deemed an aggressor. While a neutral state can also prohibit its citizens from trading arms or other war material with a belligerent, it is not required to do so.13‘The Law of Neutrality’ (1999) 73 Int’l L Stud Ser US Naval War Col 365 Therefore, private commerce which is non-neutral may continue.14ibid. This exemption came about as a result of the successful lobbying efforts of private war merchants during negotiations of the Hague Conventions.15Brian F. Havel, ‘An International Law Institution in Crisis: Rethinking Permanent Neutrality’ (2000) 61 Ohio St LJ 167 Armed forces of a belligerent party which enter neutral territory are to be disarmed and interned until the war is over.16‘The Law of Neutrality’ (1999) 73 Int’l L Stud Ser US Naval War Col 365 Political statements against or in favour of one party does not impact a state’s neutral status.17Crawford, E. (2020). The Temporal and Geographic Reach of International Humanitarian Law. In Ben Saul, Dapo Akande (Eds.), The Oxford Guide to International Humanitarian Law, (pp. 57-75). Oxford: Oxford University Press. Neutral states must also defend their neutrality by repelling or suppressing any means to violate it, whether through armed means (as is Switzerland and Austria’s position) or through unarmed means (as is Costa Rica’s position).18ibid. Any armed force undertaken in defence of neutrality is subject to the criteria that it be necessary and proportionate.19ibid.

Modern Issues with the Law of Neutrality

Havel states that the law of neutrality has come under threat due to developments in the twentieth century as “the end of war as an instrument of national policy, the rediscovery of collective security, an unprecedented pace of economic interdependence present a formidable jurisprudential challenge to an institution that derives its meaning from the classical polarization of war and peace and a sovereign right to wage war or to stay aloof from the wars of other states”.20Brian F. Havel, ‘An International Law Institution in Crisis: Rethinking Permanent Neutrality’ (2000) 61 Ohio St LJ 167 The UN Charter and the collective security system that it establishes may have impacted classical notions of sovereignty. This is because it changed the notion that a state can choose to enter an armed conflict or stay neutral, as it imposes certain duties on member states to use force.21‘The Law of Neutrality’ (1999) 73 Int’l L Stud Ser US Naval War Col 365 Under its Chapter VII powers, the Security Council may take enforcement action to maintain or restore international peace and security. Member states are obliged to provide assistance to the Security Council to this end and may be required to support such enforcement action with their armed forces. This goes against the component of impartiality inherent in the law of neutrality.22ibid. However, it has been argued that this would only apply in limited circumstances where the Security Council resolution directs a member state to take action, the Council’s practice has not shown its willingness to direct member state action in conflict.23Joshua J. Wolff, ‘Interrupted Broadcasts? The Law of Neutrality and Communications Satellites’ (2021) 45 J Space L 239

Developments in the law relating to the use of force also impact the law of neutrality. For instance, under the unable or unwilling doctrine, a state may arguably take action against non-state actors in another state so long as that state is unable or unwilling to deal with the threat themselves. Similarly, some states such as the US argue that an aggrieved belligerent may take action against a neutral state which is unable or unwilling to enforce its right of inviolability.24‘The Law of Neutrality’ (1999) 73 Int’l L Stud Ser US Naval War Col 365 This may impact a state’s right and ability to stay neutral.

Recent state practice has also moved away from traditional notions of neutrality to a status of ‘non-belligerency’ or ‘qualified neutrality’ under which states still do not actively participate in hostilities, however, they may not fully comply with the law of neutrality.25Natalino Ronzitti, ‘Neutrality in Contemporary International Law’ (2019) 29 Italian YB Int’l L 536 For instance, Italy claimed a position of ‘non-belligerency’ during the 2003 conflict between the US and coalition forces in Iraq despite having belligerent bases on its territory.26ibid. The US also has been known to adopt neutrality legislation and policies, since the 1930s, which, according to Wolff, are ‘clearly designed to influence the outcome of the conflict’.27Joshua J. Wolff, ‘Interrupted Broadcasts? The Law of Neutrality and Communications Satellites’ (2021) 45 J Space L 239 States argue in favour of ‘non-belligerency’ rather than neutrality for a number of reasons, including that they reserve the right to favour the victim of aggression over the aggressor, moreover, if they face a threat from a belligerent state, they should not be expected to treat that state impartially.28ibid. However, the notion of non-belligerency has not yet achieved customary status but remains significant owing to the growing development of the law of neutrality.29ibid.

Other issues with the obligations of neutral states also persist as the obligation is that the neutral not provide military assistance to parties to the conflict; this can be through the provision of troops, material (such as arms) or military financial aid. The onus is always on military aid though Havel argues that if the law of neutrality were to be drafted today it may include other non-war material assistance within its remit, as many non-arms related goods, particularly technology, can contribute more to the war effort than troops.30Brian F. Havel, ‘An International Law Institution in Crisis: Rethinking Permanent Neutrality’ (2000) 61 Ohio St LJ 167 Neutral states can in this way still support a belligerent without violating their neutral status.

Conclusion

Classical neutrality has been described as a ‘reflex reaction to war’31ibid. as it aims to limit hostilities and localise war to between belligerent parties only. However, given the advent of the collective security regime, globalisation which has increased states’ interconnectedness, as well as changing notions of neutrality to that of ‘non-belligerency’, the law of neutrality may see more changes in the future. It may be that the future law of neutrality is somewhat circumscribed in the ways in which a state may violate its neutral status – in that providing assistance to the victim of aggression may no longer compromise its neutrality.