The Relevance of the Concepts of War and Armed Conflict to the Law of Neutrality

Petrochilos, Georgios C., Vanderbilt Journal of Transnational Law

I. 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.

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

A. 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.

B. 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)

C. 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 that, as in the Korean War, action was not taken under Article 42, but on the initiative of member states under the authorization of the Security Council.(37) In both cases, member states acted lawfully, that is, with the consent of the Security Council, but they were not obliged to act in that manner.

A number of states officially declared that they would remain neutral, and observe the duties of neutrals. Switzerland did not allow the overflight of allied aircraft in its airspace,(38) nor did Jordan or India.(39) Furthermore, Iran stated that any aircraft that entered its airspace would be withheld "until the termination of hostilities."(40) These statements were in perfect accord with the law of neutrality as codified in the Hague Conventions.(41) More importantly, perhaps, there is no evidence that this stance was not considered by the Allied Chief of Staff to be illegal. This would be a position in accord with the traditional law of neutrality.

Thus far, it has been established that neutrality exists under the U.N. Charter, and it subsists even in the presence of collective action authorized, but not prescribed, by the Security Council. Neutrality has applied in such cases regardless of the fact that enforcement action pursuant to the U.N. Charter is not considered to result in a state of belligerency.(42) This last finding, however, is only tentative at this point, and one must turn to contemporary state practice for further guidance.

III. Representative Examples from the Relevant State Practice

In all the examples discussed below, the application of the law of neutrality was an essential aspect of the legal situation ensuing from the conflict. For the purposes of this Article, state practice comprised official statements, conduct, claims, and legislative acts.(43) Judicial decisions are also considered to the extent that they reflect the official position of the forum. Emphasis has been given to material that reflects a legal position, especially of the states particularly affected by the conflicts discussed.(44)

A. The Arab-Israeli Conflict

The Arab-Israeli conflict spanned approximately thirty years, comprising periods of full-scale hostilities followed by lengthy intervals of political tension and isolated hostile incidents (low-intensity conflict). There are four periods of distinct persistent armed conflict, namely 1948-1949, 1955-1956, 1967, and 1973. Throughout the whole period of the conflict, neutrality was a recurring theme. There are two broad issues to be identified and distinguished for the purposes of analysis: (1) the position nonparticipant states adopted with regard to the war-waging parties, and (2) the assertion of belligerent rights by Egypt toward third states.

1. The Supply of Military Materiel to the Parties

It is significant to note at the outset that third party states generally avoided taking a precise legal position regarding the nature of the conflict, and classifying their position accordingly. For instance, Canada adopted a consistent policy of imposing restrictions on arms supplies during the periods of actual hostilities. These restrictions were part of Canada's general foreign policy and were not based on express grounds of neutrality.(45) The U.K.'s official position was that because armed hostilities had been acknowledged, arms supplies would not be discontinued. Mr. Selwyn Lloyd, Secretary of State of the Foreign and Commonwealth Office, stated in 1956 that "over the past five years [the United Kingdom has] managed to keep a fair balance" in arms supplies.(46) France was the major arms supplier to Israel in the 1950s,(47) and a number of East European countries supplied arms, mainly to the Arab belligerents, throughout the years of conflict.(48) By way of contrast, the official position of the Federal Republic of Germany is interesting. The Arab League protested an agreement entitling Israel to pecuniary compensation for World War Two, stating that the 1948 war was still in progress. Bundeskanzler Adenauer conceded that the Federal Republic was subject to the duties of neutrals, and stated that the terms of the agreement precluded Israel from using the funds towards the procurement of military supplies.(49) It was thus a significant policy change when France(50) and the United Kingdom(51) decided to observe strict neutrality during the period of actual hostilities in the later stages of the conflict in 1967 and 1973. The United States, not having supplied arms until 1966, adopted a formal position of neutrality in the course of the 1967 war,(52) but did not maintain that position in the 1973 war.(53)

The application of the law of neutrality may justifiably be described as unsatisfactory due to its inconsistencies. Be that as it may, this Article is concerned with a more formal aspect of the law of neutrality. Despite the inconsistency the evidence presents from a substantive point of view, a certain useful pattern of conduct is apparent so far, to the effect that neutrality is a permissible policy toward parties involved in actual hostilities. One argument against this assertion is based on the fact that a Tripartite Declaration by France, the United States, and the United Kingdom(54) limiting arms supplies to the Middle East was made in 1950, when actual hostilities were not in progress. There is nothing in that agreement, however, to suggest it was prompted by a sense of legal duty, that is, a duty imposed by neutrality, rather than the mere political preference that hostilities not occur again.

This proposition must now be tested in contradistinction with state practice in respect to the invocation of a state of belligerency by Egypt, as the purported source of "active legitimation" for belligerent measures taken by her against vessels flying the flag of a third party state.

2. Prize Action in the Suez Canal

Although the existence of a state of war was an essential argument advanced by the Egyptian government to justify the exercise of visit, search, and seizure on vessels flying the flag of third party states (and their cargoes), the legality of these measures was not dependent solely on rules of neutrality. The Suez Canal is subject to a special regime consecrated by the 1888 Constantinople Convention,(55) which binds Egypt as successor to the Ottoman Empire.(56) The Constantinople Convention provides very limited exceptions when freedom of navigation in the Suez Canal may be limited "in time[s] of peace as in time[s] of war,"(57) and imposes additional conditions for interfering with that freedom, beyond those imposed by the law of neutrality.(58)

Egypt declared war on Israel on May 14, 1948.(59) On the same day, Egypt closed the Suez Canal to all Israeli ships, issued lists of contraband, and instituted a Prize Court in Alexandria.(60) Pursuant to this legislation, the Egyptian authorities exercised the …

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Publication information: Article title: The Relevance of the Concepts of War and Armed Conflict to the Law of Neutrality. Contributors: Petrochilos, Georgios C. - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 31. Issue: 3 Publication date: May 1998. Page number: 575+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 1998 Gale Group.

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