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

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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. …