The relevance of the concepts of war and armed conflict to the law of neutrality.

• Author: Petrochilos, Georgios C.

1. INTRODUCTION

   The law of neutrality is the regime regulating the relations between two or more states waging a war and the states wishing to retain friendly relations with the war-waging parties. It therefore comprises the rules pertaining to the duties and rights of neutrals, and the powers the belligerents possess vis-a-vis neutrals in order to verify whether the latter comply with their neutral duties. These belligerent powers are mainly governed by the Law of Prize.(1)

   The above definition begs the question "what is war?" In common parlance, the term signifies an armed contention of some sort. In law, however, a state of war is a technical concept designating a particular state of affairs, the existence of which is apposite to the application of a special body of rules, the Laws of War.(2) This formula, however, does not spell out precisely what conditions comprise a state of war; this question remains open in the law as it stands. According to the classical state of war doctrine, a state of war exists if at least one of the parties to a conflict admits or declares it to exist. The determination of third states, or indeed, the other party to a conflict is largely irrelevant.(3) The insufficiency of this unilateral and formalistic conception became clear in the practical application of the so-called ius contra bello. The prescription not to "resort to war" contained in the Kellogg-Briand Pact(4) and the Covenant of the League of Nations(5) may be, and has been, circumvented by a state actually initiating or partaking in hostilities while asserting that it did not intend to create a state of war.(6) Despite these circumventions, the classical state of war doctrine persisted in the League of Nations' practice.(7)

   Post-1945 developments in the law took account of these complexities and artificialities, which were a source of potential evasion of the law. The U.N. Charter reaffirmed the prohibition of war, already part of customary law,(8) and restated it in an attempt to lift the ambiguities. Article 2(4) reads: "All Members will refrain in their international relations from the threat or use of force ...."(9) The use of the phrase "state of war" as a term of art has also been abolished in the rules of warfare. The 1949 Geneva Conventions apply, according to a common Article 2, "to all cases of declared wars or any other armed conflict.., even if the state of war is not recognised by one of [the parties]."(10) Generally, it may be said that in the practice of states the legal principle relevant to the application of the whole corpus of the Law of Warfare (ius in bello) has become armed conflict.(11)

   The Laws of War have thus ceased to be entirely conditioned on the existence of a state of war. Despite the changes in the general legal framework, however, old problems persist and have become accentuated with regard to neutrality. Is the existence of a state of war, if such a state may still exist in law, a legal requirement of neutrality--or has it been replaced by the concept of armed conflict? Furthermore, what are the repercussions of outlawing the use of force on the war-dependent institution of neutrality? This Article proposes to address these persistent issues in the following fashion. First, the Article will examine them in the context of the written law. Second, it will briefly spell out the cases in which neutrality is still a lawful position as a necessary precursor to any analysis of state practice. Third, it will analyze critically the pertinent examples in state practice, relying predominately on primary sources. Finally, the Article will systematize the findings in state practice.

2. SOME SOURCES OF DOUBT WITH REGARD TO NEUTRALITY IN CURRENT INTERNATIONAL LAW

   1. The Lacuna in Written Law

      The consolidation of the customary rules of neutrality led to the codification of the law in the two Peace Conferences, in 1899 and 1907. The two 1907 Hague Conventions, namely "Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land,"(12) and "Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War"(13) are significant in that they spell out detailed rules on neutral rights and duties,(14) and therefore provide a starting point for analysis.

      Both Conventions are silent on the main issue of this Article: the legal notions relevant to the application of the law of neutrality. Although the Conventions set forth rules that apply during "war," and as a result often refer to "war," the meaning of the term is not defined for the purpose of the Conventions. The texts adopted in the context of the Peace Conference as a whole, however, may provide some guidance. Convention III "Relative to the Opening of Hostilities" was adopted in the course of the same Peace Conference, and it stipulates that hostilities may not begin prior to an ultimatum or a declaration of war.(15) Furthermore, Article 2 of Convention III contains a specific rule addressing the critical time that a state of war, within the meaning of the said Convention, becomes effective for neutral powers.(16) It is against this background of regulated war that the Neutrality Conventions were conceived, which explains the fact that writers of that period never referred to any confusion on this point.(17)

      Nonetheless, this does not settle the matter. Convention III purports to set forth the conditions for legitimate warfare, not the requirements for the application of neutrality. Neither the wording of Article 2 nor the spirit and economy of that Convention indicate that the law of neutrality is to apply only after a declaration of war.(18) That is, the drafters of, and the parties to, the above Conventions did not intend to state that the law of neutrality may not apply in wars brought about by means other than a declaration of war or an ultimatum--although these were conceived as the lawful ways to initiate war.

      Another point with respect to the neutrality Conventions is that they were conceived then as an ab initio codification of existing customary law.(19) This signifies that the customary international law of neutrality continues to exist and evolve for the process of codification is without prejudice to the existence and content of a customary norm.(20) It is to such developments in the law of neutrality as regards its conditions of application that this Article will turn. First, however, there are two further preliminary points that need to be made in order to delimit the domain of this Article.

   2. Commercial Relations between Individuals and Belligerent States

      A perusal of the Hague Neutrality Conventions indicates that the duties of neutrals constitute specific manifestations of two main principles: the principle of abstention from the conflict, and the principle of impartiality in the application of measures taken in matters of war. Both Conventions contain a common Article 7, however, which limits the duty of abstention incumbent on a neutral state by stipulating that a neutral power is not bound to prevent the export of arms supplies for the use of either belligerent.(21) It is not within the ambit of this Article to explain the logic behind this provision, but the doubts expressed by learned writers about the expediency of preserving this rule(22) have been affirmed by contemporary state practice: an essential manifestation of the observance of neutral duties is the discontinuance of military supplies to the belligerents.(23)

   3. Neutrality under the U.N. Charter(24)

      The premises of neutrality are in sharp conflict with the idea behind the creation of the U.N. Whereas neutrality guarantees peace to states individually through a stance of abstention, in the U.N. system peace is restored by collective action under the guidance of the Security Council. In the more traditional legal fashion of vires, neutrality logically presupposes independence-that is, the legal capacity to determine a state's own position with regard to questions of peace and war. United Nations membership restricts a state's ability to make these decisions independently. This is made clear in Article 2(5) of the U.N. Charter, which provides for a duty of cooperation with the organisation.(25)

      This contradiction of principle, however, does not lead to a tacit abrogation or abolition of neutrality as an institution.(26) In the absence of any express reference to neutrality in the U.N. Charter,(27) any possible conflicts must be resolved with caution.(28) Although the issue merits separate analysis, it is sufficient for the purposes of this Article to state that neutrality is permissible in any case where there is no binding Security Council decision prescribing a certain course of conduct in the form of collective action. Neutrality must therefore not be excluded in case the Security Council does not designate an aggressor party, or does so but fails to prescribe collective action.(29) In this latter case, the nuance is that the conclusive determination of an aggressor by the Security Council(30) precludes the adoption of a neutral position to the extent that doing so involves the granting of rights or facilities to the aggressor party.(31)

      It is only when the Security Council adopts a binding Resolution under Chapter VII, in which collective action is prescribed, that all member states are bound by Articles 2(5) and 25 to participate in such action, and not to take any measures to fetter its exercise.(32) The enforcement action against Iraq, after its invasion of Kuwait, is a particularly interesting case study of collective action in relation to neutrality. Having issued economic sanctions,(33) with which the states have almost universally complied,(34) the Security Council authorized, but did not require, collective action in support of Kuwait in Resolution 678.(35) Again, the question of the precise legal nature of the action actually undertaken merits separate examination.(36) Suffice it to observe...