CRITICALLY EXAMINE THE IMPACT OF THE PRINCIPLE OF NEUTRALITY

IN ARMED CONFLICTS UNDER INTERNATIONAL LAW

AN ASSIGNMENT

WRITTEN BY

17/LA/2289

FACULTY OF LAW,

UNIVERSITY OF UYO

SUBMITTED TO

DR. MICHAEL HANSON

THE TUTORIAL LECTURER

PUBLIC INTERNATIONAL LAW

FACULTY OF LAW

UNIVERSITY OF UYO

JULY 2023
 THE LAW OF NEUTRALITY IN INTERNATIONAL LAW

The law of neutrality defines the legal relationship between nations engaged in armed

conflict and Sates not taking part in such hostilities (neutrals). 1 Neutrality describes the

‘formal position taken by a State which is not participating in an armed conflict or which

does not want to become involved.’ 2 The purpose of the law of neutrality is to localize war,

limit the conduct of war on both land and sea, and to lessen the impact of war on international

commerce.3 In neutrality is important in achieving geographic (or territorial) completeness of

the legal regime: that is, the 1949 Geneva Conventions which form the bedrock of the

framework of laws on armed conflicts.4

HISTORICAL DEVELOPMENT OF THE CONCEPT OF NEUTRALITY IN

INTERNATIONAL LAW

The concept of neutrality within the context of warfare has evolved significantly over

history, encompassing moral, religious, and legal dimensions. The concept's journey can be

divided into three key sections: the evolution of doctrine, the resurgence of positivism, and

codification.

A. EVOLUTION OF THE DOCTRINE

Historical sources like the Melians and the Roman Livy contemplated the violation of

neutrality as a potential cause for defeat during wars. Livy the Fabian Ambassadors to the

Gauls in Etruria (386 B.C.), for instance, viewed breaking neutrality obligations as worse

1 A. R. Thomas & James C. Duncan (eds) ‘The Law of Neutrality’ in International Law Studies - Volume 73
Annotated Supplement to The Commander's Handbook on the Law of Naval Operations, available at <
https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1558&context=ils> accessed on 11 August
2023.
2 International Committee of the Red Cross, ‘The Law of Armed Conflict-Neutrality’
<https://www.icrc.org/en/doc/assets/files/other/law8_final.pdf> accessed on 11 August 2023.
3 McDougal & Feliciano Williams, Neutrality in Modem Armed Conflicts: A Survey of the Developing Law, 90
Mil. L. Rev. 9 (1980).
4 Tess Bridgeman, The Law of Neutrality and The Conflict with Al Qaeda, (2010) 1887, available at
https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-85-4-Bridgeman.pdf accessed on
11 August 2023.
than the injustices perpetrated by attacking forces. 5 As moral and religious influence grew

within the Church, the notion of "just war" became intertwined with moral and legal thought.

The phrase "just war" was initially a mistranslation of the pre-renaissance Latin phrase

"bellum justum", but it gradually became synonymous with the legal and moral aspects of

warfare. Theological figures like St. Augustine introduced the idea that sometimes engaging

in war could be morally justifiable. This notion implied that, in certain cases, neutrality might

be both morally reprehensible and illegal, suggesting a shift from mere moral judgment to

legal obligation.6

B. THE RESURGENCE OF POSITIVISM

The dominance of positivism was marked by the decline of the Church's authority.

Figures like Alberico Gentili played pivotal roles in shaping the legal landscape. These

positivists argued that laws governing warfare were not abstract principles based on morality,

but rather the result of political expediency and policy choices. 7 The idea of privateering

evolved from private reprisals, and maritime laws, particularly the rules of prize, became

more defined. The 18th century saw a shift from moral and natural law-based arguments to a

more pragmatic and policy-oriented approach to international maritime law.

C. CODIFICATION

As the 19th century progressed, the positivist approach gained further traction.

Codification efforts aimed to transform principles derived from diplomatic negotiations,

moral insight, and practice into legally binding rules. Efforts like the 1863 General Orders

100 in the United States8 and the Geneva Convention of 1864 focused on the protection of

wounded and sick individuals during war. This trend reached its peak with the Hague

5 Livy, History of Rome V, 36-49.

6 Alfred P. Rubin, The Concept of Neutrality in International Law’ (1988) Denver Journal of International
Law & Policy.
7 Ibid 362.
8 Schindler & Toman, The Laws of Armed Conflict 18 (2nd rev. ed. 1981) (The "Lieber" Code, arts. 115, 116).
Conventions of 1899 and 1907, which partially codified the laws of war. These conventions

assumed a legal status of neutrality, outlining the rights and obligations of neutral parties.

However, the positivist legal order of states meant that interpretation and implementation of

these conventions were subject to national discretion.9

The concept of neutrality in armed conflicts has undergone a profound transformation

throughout history. It evolved from moral and religious considerations to positivist legal

perspectives, culminating in codification efforts that attempted to standardize rules governing

neutrality. Despite these efforts, the application of neutrality remains complex due to the

political and interpretive nature of international law within the framework of positivism.

KEY DEFINITIONS UNDER NEUTRALITY OF STATES

1. NEUTRAL STATUS: In customary international law, every State has the right to

abstain from engaging in an armed conflict by either declaring or assuming a neutral

stance. Thus, a State which declares itself or assumes a neutral position is called a

neutral State.

2. NEUTRAL SPACE: This comprises the national territory of the neutral State, its

territorial waters and its national air space.

3. NEUTRAL PERSONS: These are nationals of neutral States.

KEY PRINCIPLES, RIGTS AND OBLIGATIONS OF NEUTRAL STATES

The principal right of a neutral State revolves around its inviolability. Thus, the

territory of a neutral State is inviolable. Every other State is prohibited from committing any

act of hostility whatsoever on such territory. In contrast, it becomes the duty of a belligerent

State to respect the right of the neutral State, failure of which such neutral State can seek to

9 Rubin 374.
enforce its rights.10 Neutral status, once established, remains in effect unless and until the

neutral State abandons its neutral stance and enters into or engages in the conflict, in some

form of way.11 Thus, neutral States are required to stay away from participating in any armed

conflict which they hold a neutral stance.

NEUTRALITY UNDER THE CHARTER OF THE UNITED NATIONS

The U.N. Charter, in articles 2(3) and 2(4), places a responsibility on its member

states to resolve international disputes through peaceful methods and to abstain from

employing force or the threat of force in their global relations. Should a breach of peace, a

threat to peace, or an act of aggression occur, the Security Council holds the authority to

engage in enforcement actions on behalf of all member states, which may involve the use of

force, to uphold or re-establish global peace and security. Upon the request of the Security

Council, member states are compelled to offer assistance to the United Nations, or a country

or coalition of countries executing a Security Council enforcement measure, in any

endeavour it undertakes and are required to refrain from aiding any nation that is the target of

such an action.12 Consequently, member nations may be obliged to support a United Nations

action with elements of their armed forces, an action which is incompatible with the

abstention requirement of neutral status. 13 Likewise, a member state might be summoned to

extend support to the United Nations in an enforcement operation that does not entail the

deployment of its military forces. As a result, the state would adopt a biased stance that

contrasts with the impartiality mandated by the conventional principles of neutrality. 14

However, in the event that the Security Council opts against initiating an enforcement

action, each member state of the United Nations retains the autonomy to declare a state of
10 Thomas, 367.
11 Tucker 202; NWIP 10-2, para. 231.
12 U.N. Charter arts. 2(5), 25, 43 & 49.
13 U.N. Charter arts. 43 & 45.
14 U.N. Charter arts. 41 & 49.
neutrality.

NEUTRALITY UNDER REGIONAL AND COLLECTIVE SELF-DEFENSE

ARRANGEMENTS.

The requirement outlined in the United Nations Charter, compelling member states to abstain

from employing force or making threats against the territorial integrity or political

sovereignty of any state, is tempered by the entitlement to both individual and collective self-

defense. Member states have the liberty to exercise this right until the Security Council has

undertaken actions essential to reinstate global peace and security. The intrinsic right to self-

defense can be operationalized either individually, collectively, or spontaneously, as well as

through structured regional and collective security agreements. 15 Article 103 of the U.N.

Charter states: ‘In the event of a conflict between the obligations of the Members of the

United Nations under the present Charter and their obligations under any other international

agreement, their obligations under the present Charter shall prevail.’

Thus, the possibility of declaring and upholding a state of neutrality within such

agreements is contingent upon the level of obligation among the involved parties to offer

support in a regional endeavor or, in the context of collective self-defense, to intervene in

defense of a victim of an armed assault. The outcome of such treaties could potentially shift

the right of the participating parties to provide assistance to a fellow member under attack

into an obligatory responsibility. This duty might encompass a range of forms, spanning from

economic aid to the deployment of armed forces.16

NEUTRAL TERRITORY

15 Thomas, 370.
16 Ibid.
As a general rule of international law, all acts of hostility in neutral territory, including

neutral lands, neutral waters, and neutral airspace, are prohibited. 17 A State with a neutral

stance is obligated to prevent the use of its territory as a sanctuary or operational base by

belligerent forces from any sides of the hostilities. If a neutral State cannot or is not willing to

adequately uphold its inviolability rights, an offended warring party can undertake necessary

actions within the neutral territory to oppose the actions of enemy forces, which may involve

warships and military aircraft, engaging in unauthorized utilization of that territory. 18

Belligerents are also authorized to act in self-defense when attacked or threatened with attack

while in neutral territory or when attacked or threatened from neutral territory. 19

A neutral nation has the option to allow the movement of injured and sick individuals who

are part of the armed forces of any side through its land, as long as the vehicles transporting

them do not carry military or war supplies. If the movement of sick and wounded soldiers is

allowed, the neutral country takes on the duty of ensuring their safety and supervision. In

cases where prisoners of war flee from their captors and reach neutral territory, they can

either be sent back to their home country or permitted to stay within the neutral nation.

However, they must refrain from engaging in hostile actions during their stay there.20

NEUTRAL INTERNAL WATERS.

Neutral internal waters refer to the waters within a neutral country that are situated on the

landward side of the baseline used to measure the territorial sea. In the instance of

archipelagic states, these waters are defined by the closing lines established for their

boundary delineation.

17 Hague V, art. 1; Hague XIII, art. 2.

18 McDougal & Feliciano 406-07.
19 Thomas 371.

20 Hague V, arts. 13-14.

The internal waters of a neutral State is also governed by the rules of neutrality in

international law. Neutral territorial seas, like neutral territory generally, must not be used by

warring forces either as a sanctuary from their enemies or as a base of operations. 21 Armed

forces of warring States are therefore prohibited from carrying out acts of hostilities in the

territorial waters of a neutral State, except in cases of self defence.

NEUTRAL AIRSPACE

Neutral territory extends to the airspace over a neutral nation's lands, internal waters,

archipelagic waters (if any), and territorial sea. Belligerent military aircraft are forbidden to

enter neutral airspacewith the following exceptions:

1. Belligerent aircraft, including armed military planes, are permitted to use the airspace over

neutral international straits and archipelagic sea lanes for transit or archipelagic sea passage,

including armed military aircraft, engaged in transit or archipelagic sea lanes passage. Such

passage must be uninterrupted, continuous and expeditious and must be undertaken in the

normal mode of flight of the aircraft involved. Belligerent aircraft must refrain from acts of

hostility while in transit but may engage in activities that are consistent with their security

and the security of accompanying surface and subsurface forces.

2. Medical aircraft have the option to fly over neutral land after giving advance notice, can

land there if needed, and are allowed to utilize neutral airfield facilities as stopovers,

following specific conditions as the neutral nation may deem fit to apply equally to all

belligerents.22

3. Aircraft of warring States in evident distress may be permitted to enter neutral airspace

and to land in neutral territory under such safeguards as the neutral nation may wish to

21 Hague XIII, art. 5.

22 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
Members of the Armed Forces at Sea, Article 40.
impose. The neutral nation must require such aircraft to land and must intern both aircraft and

crew.23

DUTY OF THE NEUTRAL STATE WITH REFERENCE TO NEUTRAL AIRSPACE

Neutral nations are obligated to take active measures to stop belligerent military aircraft from

violating their airspace, to force such aircraft to land, and to detain both the aircraft and its

crew. In cases where a neutral nation cannot or chooses not to prevent unauthorized entry or

usage of its airspace by belligerent military aircraft, the opposing belligerent forces might

take necessary enforcement actions as deemed necessary by the circumstances.24

NEUTRALITY IN RELATION TO INTERNATIONAL COMMERCE

The law of neutrality does not prohibit neutral nations from engaging in commerce with

States in armed conflict; however, a neutral government cannot supply materials of war or

armaments to any State in armed conflict without violating its neutral duties of abstention and

impartiality and risking loss of its neutral status. Furthermore, Although a neutral State may

forbid its citizens from carrying on non-neutral commerce with States in armed conflicts, it is

not obliged to create this restriction. This principls establishes a balance-of-interests to

protect neutral commerce from unreasonable interference on the one hand and the right of

Statws to interdict the flow of war materials to the enemy on the other.

NEUTRAL STATES ACQUIRING ENEMY CHARACTER

Vessels flying an enemy flag and aircraft displaying enemy markings are considered to have

an enemy status. Nevertheless, the presence of a neutral flag on a merchant ship or neutral

markings on an aircraft doesn't always indicate neutral status. It's important to note that any

merchant ship or civilian aircraft owned or controlled by a belligerent holds an enemy status,

23 Hague V, art. 11; Protocol Additional to the Geneva Conventions of 12 August 1949, art. 31(4).
24 Thomas, 380.
regardless of whether it's using a neutral flag or markings. In such cases, opposing belligerent

forces have the right to treat these vessels and aircraft as if they were indeed enemy entities. 25

When involved in either of the following actions, neutral merchant vessels and

civilian aircraft take on an enemy identity and can be regarded by a belligerent as equivalent

to enemy warships and military aircraft:

1. Taking a direct part in the hostilities on the side of the enemy

2. Acting in any capacity as a naval or military auxiliary to the enemy's armed

forces.

CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT

Neutral merchant vessels and civil aircraft150 are liable to capture by belligerent warships

and military aircraft if engaged in any of the following activities:

1. Avoiding an attempt to establish identity

2. Resisting visit and search

3. Carrying contraband

4. Breaking or attempting to break blockade

5. Presenting irregular or fraudulent papers; lacking necessary, destroying, defacing, or

concealing papers

6. Violating regulations established by a belligerent within the immediate area of naval

operations

7. Carrying personnel in the military or public service of the enemy

8. Communicating information in the interest of the enemy

25 Ibid.
Captured vessels and aircraft are transported to a port or airfield controlled by the armed

authority, where they are submitted as prizes for deliberation by a prize court.26

The neutral Statw is required to treat the opposing belligerent states with fairness. This

obligation does not imply that the State must treat both belligerents identically. Instead, it

signifies a prohibition against discriminatory actions. This prohibition targets only those

instances of differing treatment of the belligerents that cannot be justified given the unique

challenges of armed conflict. Therefore, a neutral nation isn't compelled to remove variations

in its commercial dealings with each conflict party from the time when the armed conflict

began. The neutral nation retains the right to maintain its current commercial relations.

However, altering these commercial relationships might potentially be seen as taking sides,

which conflicts with the stance of neutrality.27

KEY PRINCIPLES, RIGHTS AND OBLIGATIONS OF STATE IN ARMED

CONFLICT (BELLIGERENT STATES)

Belligerent States have the duty of establishing a neutrality policy that ensures respect for

neutral space. This is so that armed forces involved in the conflict do not enter into the

neutral space and that neutral States are not affected by the collateral effects of hostilities.

To prevent violations of neutral space, comprehensive instructions and orders must be

provided to the armed forces operating near such areas. These instructions should encompass

the following prohibitions:28

1. Movement: Troops and combat supply convoys must not cross or traverse neutral territory.

This requires specific delineation of borders and boundaries.

26 Ibid 397.
27 HC V, Arts. 5 & 10.
28 HC V, Arts. 2-4.
2. Formation and Recruitment: The creation of units or recruitment of combatants within

neutral territory is prohibited.

3. Telecommunications: Erecting military telecommunication installations on neutral territory

is not allowed. Similarly, pre-existing military telecommunication facilities established

before the conflict should not be utilized.

Despite the issuance of clear instructions, errors can occur. For instance, a patrol might

accidentally enter neutral space due to a map-reading mistake. In such cases, troops need to

be briefed on appropriate actions. If they realize their error without being detected, they

should swiftly retreat to their own territory. If discovered, admitting the mistake and avoiding

escalation into a confrontation is advised.

Typically, the neutral State will caution these violators and offer them the chance to depart

peacefully. However, in certain situations outlined below, internment might be considered.

HUMANITARIAN AID IMPLICATIONS OF NEUTRALITY IN ARMED CONFLICT

The humanitarian implications of the principle of neutrality in armed conflict are far-

reaching, playing a crucial role in safeguarding civilian populations and ensuring the delivery

of vital humanitarian aid. In the context of armed conflict, civilians often find themselves

vulnerable to the devastating impacts of hostilities, lacking the protective resources available

to combatants. Neutrality, as a guiding principle, steps in as a mechanism to prevent harm to

non-combatants.

Civilian populations are comprised of individuals who are not directly involved in hostilities.

Their vulnerability stems from their non-participation, making them prone to the adverse

effects of conflict. Neutrality addresses this vulnerability by restraining neutral states from
participating in the conflict, effectively minimizing collateral damage that could potentially

harm civilians.

Furthermore, neutrality's role in facilitating humanitarian access and assistance within neutral

states cannot be understated. Neutral states provide a safe haven for humanitarian agencies to

operate, enabling them to establish bases for the efficient distribution of aid. However, this

facilitation is not without challenges. The safe passage and delivery of aid through conflict

zones present complex hurdles.29

Physical obstacles such as geographical barriers, damaged infrastructure, and active

hostilities pose significant threats to aid delivery. Security concerns arise due to the risks

faced by humanitarian workers, who may be inadvertently caught in crossfire or even

targeted deliberately. Distinguishing humanitarian workers from combatants becomes

challenging in the chaotic environments of conflict zones. Negotiations and consent from

conflicting parties become pivotal, ensuring that aid reaches those in need without

impediments.

In essence, the humanitarian implications of neutrality during armed conflicts illuminate its

essential role in minimizing civilian suffering and facilitating life-saving aid delivery. It's a

reminder that even in the midst of hostilities, the protection of innocent lives remains a

universal concern that transcends political and military considerations.

In the Persian Gulf Conflict, the ICJ found that:

as in the case of the principles of humanitarian law applicable in armed conflict,

international law leaves no doubt that the principle of neutrality, whatever its content,
which is of a fundamental character similar to that of the humanitarian principles and
rules, is applicable (subject to the relevant provisions of the United Nations Charter),
to all international armed conflict, whatever type of weapons might be used.

29 GC IV, Arts. 23 & 59; GP I, Arts. 69 & 70