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XV The Law of Neutrality

Chapter Contents

15.1 Introduction 15.2 Application of the Law of Neutrality 15.3 Overview of the Neutrality Laws Framework of Reciprocal Rights and

Duties 15.4 Remedies for Violations of Neutrality Law 15.5 Prohibition on the Use of Neutral Territory as a Base of Operations 15.6 Neutral Persons 15.7 Neutral Waters 15.8 Passage of Belligerent Vessels and Aircraft Through International Straits and

Archipelagic Sea Lanes 15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal

Waters 15.10 Neutral Airspace 15.11 Belligerent Right of Angary 15.12 Neutral Commerce and Carriage of Contraband 15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil

Aircraft 15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and

Neutral-Marked Civil Aircraft 15.15 Capture of Neutral Vessels and Aircraft 15.16 Belligerent Forces Taking Refuge in Neutral Territory 15.17 POWs or Internees Brought to, or Received by, a Neutral State 15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral

Territory

15.1 INTRODUCTION

This Chapter addresses the law of neutrality.

Issues of neutrality law can raise questions of national policy regarding an armed conflict.1 In U.S. practice, such national policies would be developed through the National Security Council (NSC) process by the Department of State and other departments and agencies represented on the National Security Council.2

Some of the rules described in this Chapter were formulated long ago. Moreover, treaties concerning the law of neutrality might, by their terms, apply only to a limited set of international 1 Refer to 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed Conflict). 2 See, e.g., Barack Obama, Presidential Policy Directive 1, Organization of the National Security Council System, Feb. 13, 2009.

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armed conflicts, and the rules prescribed in those treaties might not reflect customary international law.3 In addition, it may be important to consider the implications of more recent treaties that might be applicable to a specific legal issue. In particular, the Charter of the United Nations may, in certain respects, be understood to be consistent with, and, in other respects, to modify, rules reflected in the law of neutrality.4

Matters Addressed by the Law of Neutrality. The law of neutrality prescribes the 15.1.1legal relationship between belligerent States and neutral States. The law of neutrality regulates relations between: (1) belligerent States, vessels, aircraft, and persons; and (2) neutral States, vessels, aircraft, and persons. Under the law of neutrality, these categories of belligerents and neutrals have corresponding rights, duties, and liabilities. Special rules have been developed to address situations on land, at sea, and in the air.

Certain rules found in the law of neutrality have also been applied in other contexts that are closely analogous, such as a States duties to prevent a non-State armed groups use of its territory for hostile expeditions against another State.5

Classification of States as Belligerent, Neutral, or Non-Belligerent. 15.1.2

15.1.2.1 Belligerent State. Belligerent State refers to a State that is engaged in an international armed conflict, whether or not a formal declaration of war has been made.6

15.1.2.2 Neutral State. Neutral State refers to a State that is not taking part in the armed conflict.7 In some cases, States formally state their neutral status in relation to an armed conflict.8

15.1.2.3 Non-Belligerent State. The term non-belligerent or non-belligerent State has been used to refer to a State that is not participating in the armed conflict. The term non-belligerent Power is used in the 1949 Geneva Conventions.9

In addition, the term non-belligerent has been used to refer to States that sought to refrain from active participation in hostilities, but that did not adhere to the duties of strict

3 Refer to 15.1.4 (Application of Treaties on Neutrality and Customary International Law). 4 Refer to 15.2.3 (The Law of Neutrality Under the Charter of the United Nations). 5 Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC). 6 Refer to 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities). 7 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION preamble (Considering that neutrality is the juridical situation of states which do not take part in the hostilities, and that it creates rights and imposes obligations of impartiality, which should be regulated;). 8 Refer to 15.2.1.4 (Proclamations of Neutrality and Other Notifications of Neutral Status). 9 Refer to 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

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impartiality to which neutrals have traditionally been required to adhere.10 Such departure from the traditional duties of impartiality has, at times, been controversial.11

Purpose of the Law of Neutrality. The law of neutrality seeks to preserve friendly 15.1.3relations between belligerent and neutral States by permitting States to avoid taking sides in an armed conflict.12 The law of neutrality also seeks to prevent additional States from being drawn into an armed conflict by establishing a clear distinction between belligerent and neutral States.13 In particular, the law of neutrality seeks to minimize the effects of armed conflict on States that are not party to the conflict, including by lessening the effect of war on neutral commerce.

Application of Treaties on Neutrality and Customary International Law. The 15.1.4treaties that address neutrality may be limited in their application as a matter of treaty law, but provisions of these treaties may reflect customary international law.

For example, many of the treaties that address the law of neutrality were concluded before World War II, and have not been universally ratified by States.14 Moreover, certain treaties only apply between the Parties to the treaty and, in some cases, only if all the belligerent States are also Parties to the treaty.15 The principles reflected in those treaties, however, may still be applicable insofar as they reflect customary international law, even if they do not apply as a matter of treaty law.16 However, if the factual circumstances of the current context are quite different from those underlying the formulation of the original treaty rule, it may be incorrect to

10 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 192 (Thus one of the marked developments of the second World War was the emergence of so-called nonbelligerency, a term used to indicate the position of states that refrained from active participation in hostilities while at the same time abandoning the duties heretofore imposed upon non-participants.); id. at 198 (It has already been observed that to the extent that this term has not been used merely as a synonym for the usual position occupied by non-participants it has served to indicate varying degrees of departure from the duties traditionally consequent upon a status of non-participation in war.). 11 Refer to 15.2.2 (Qualified Neutrality). 12 Carl Salans, Deputy Legal Adviser, Department of State, comment to R.R. Baxter, The Legal Consequences of the Unlawful Use of Force under the Charter, 62 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT ITS ANNUAL MEETING 68, 76 (1968) (When armed conflict occurs, the purpose of international law ought to be to limit the scope of the conflict. This is also a purpose of the Charter. The law of neutrality serves that purpose. Small states, like Cambodia, would find themselves quickly engulfed in conflict if they had to act on a determination that one side or the other in hostilities was acting unlawfully. And nuclear states run another kind of risk if they have to take sides in every conflict.). 13 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 486 (1101) (1999) (By establishing a clear distinction between neutral states and states parties to the conflict, international law prevents more states from being drawn into the conflict.). 14 See, e.g., 1928 PAN AMERICAN NEUTRALITY CONVENTION; HAGUE V; HAGUE XIII. 15 See, e.g., HAGUE V art. 20 (The provisions of the present Convention do not apply except between Contracting Powers and then only if all the belligerents are parties to the Convention.); HAGUE XIII art. 28 (The provisions of the present Convention do not apply except to the contracting Powers, and then only if all the belligerents are parties to the Convention.). Consider Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89, 90 (1907) (The present Declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede to it.). 16 Refer to 1.8.1 (Relationship Between Treaties and Customary International Law).

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assume that the particular treaty rule reflects (or should reflect) a rule of customary international law applicable to the current factual circumstances.

Domestic Neutrality Laws. States may have domestic legislation relating to the 15.1.5law of neutrality.

In some cases, these statutes implement a States obligations under the law of neutrality, such as its obligations as a neutral to prevent the arming of belligerent warships in neutral ports.17 These statutes may also serve to implement a States international obligations outside the context of international armed conflict, such as its peacetime obligations to prevent its territory from being used as a base of operations for hostile expeditions against friendly States.18

Domestic statutes may also implement the rights of States under the law of neutrality, such as the right of belligerents to conduct captures. 19

Domestic neutrality statutes may also help implement a States national policy with respect to neutrality. The law of neutrality permits neutral States a degree of policy discretion with respect to an armed conflict.20 Some neutrality treaties recognize such domestic legislation.21 Such legislation, however, must be applied impartially among belligerents.22 In

17 For example, 18 U.S.C. 961 (Whoever, within the United States, increases or augments the force of any ship of war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war, cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, or of any colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people, with whom the United States is at peace, by adding to the number of guns of such vessel, or by changing those on board of her for guns of a larger caliber, or by adding thereto any equipment solely applicable to war, shall be fined under this title or imprisoned not more than one year, or both.). 18 For example, 18 U.S.C. 960 (Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned for not more than three years, or both.). Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC). 19 For example, 10 U.S.C. 7651 ((a) This chapter applies to all captures of vessels as prize during war by authority of the United States or adopted and ratified by the President. However, this chapter does not affect the right of the Army or the Air Force, while engaged in hostilities, to capture wherever found and without prize procedures--(1) enemy property; or (2) neutral property used or transported in violation of the obligations of neutrals under international law.). 20 Cordell Hull, Secretary of State, Statement at Department of State Press Conference, Sept. 21, 1939, 1 DEPARTMENT OF STATE BULLETIN 280 (Sept. 23, 1939) (I think that you will find from a careful analysis of the underlying principles of the law of neutrality that this Nation, or any neutral nation, has a right during a war to change its national policies whenever experience shows the necessity for such change for the protection of its interests and safety. I do not mean to be understood as saying that such action may be taken at the behest or in the interests of one of the contending belligerents, it being understood, of course, that any measures taken shall apply impartially to all belligerents.). 21 For example, 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (When, according to the domestic law of the neutral state, the ship may not receive fuel until twenty-four hours after its arrival in port, the period of its stay may be extended an equal length of time.).

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addition, a State may have an obligation to notify other States of its domestic neutrality statutes.23

15.2 APPLICATION OF THE LAW OF NEUTRALITY

The application of the law of neutrality may depend on a States national policy towards an armed conflict. A States obligations under jus ad bellum, including its obligations under the Charter of the United Nations, may alter significantly its rights and duties under the law of neutrality.

Armed Conflict and the Application of the Law of Neutrality. 15.2.1

15.2.1.1 Application of the Law of Neutrality and the National Policies of States Towards an Armed Conflict. Whether the law of neutrality governs a States relations with belligerents in an armed conflict may depend on that States national policy towards that armed conflict.24 For example, if an armed conflict occurs, a State may choose to join the armed conflict, in which case it would no longer be neutral and the law of war rather than the law of neutrality would govern its relations with opposing belligerents.25 Similarly, if two States conduct hostilities against one another, but refuse to recognize a state of armed conflict, third States may reject this position and invoke the law of neutrality to protect their rights in relation to the armed conflict.26 In addition, outside States that recognize the belligerency of a rebel faction in a civil war may choose to apply the law of neutrality in their relations with the rebel faction and with the government.27

22 HAGUE XIII preamble (Seeing that it is desirable that the Powers should issue detailed enactments to regulate the results of the attitude of neutrality when adopted by them; Seeing that it is, for neutral Powers, an admitted duty to apply these rules impartially to the several belligerents;). 23 HAGUE XIII art. 27 (The Contracting Powers shall communicate to each other in due course all Laws, Proclamations, and other enactments regulating in their respective countries the status of belligerent warships in their ports and waters, by means of a communication addressed to the Government of the Netherlands, and forwarded immediately by that Government to the other Contracting Powers.). 24 Compare 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules). 25 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 489 (1104) (1999) (Traditional international law left to each state the sovereign decision of whether, at the outbreak of a conflict between other states, it would participate or remain neutral. The distinction between participation and neutrality is a political, not military, decision. Where the law of neutrality requires decisions to be taken by military command, the government concerned must give political guidance and clarify the position which it takes in relation to a particular conflict.). 26 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 199-200 (Unlike the law governing the mutual behavior of combatants, a large part of which may be considered operative in any international armed conflict, the rules regulating the behavior of neutrals and belligerents remain strictly dependent for their operation upon the existence of a state of war. It may be, however, that states engaged in armed conflict are unwilling to issue a declaration of war or even to acknowledge the existence of a state of war. In such situations it would appear that the decision as to whether or not to recognize the existence of a state of war, and thereby to bring into force the law of neutrality, must rest principally with third states. The attitude of the parties engaged in armed conflict need not prove decisive for third states, the latter being at liberty either to accept the position of the contestants (i.e., the position that war does not exist) or to reject this position and to invoke the law of neutrality.). 27 Refer to 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).

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15.2.1.2 Application of Certain Duties of Neutral States Only in Certain International Armed Conflicts. The duties of neutral States to refrain from certain types of support to belligerent States do not apply to all armed conflicts to which jus in bello rules apply; rather, such duties are only triggered in armed conflicts of a certain duration and intensity.28 However, belligerent States have fundamental duties to respect the sovereignty of neutral States in all international armed conflicts.29

15.2.1.3 Application of Certain Rules in the Law of Neutrality Outside the Context of International Armed Conflict. Certain parts of the law of neutrality may be viewed as applicable outside the context of international armed conflict because certain duties that the law of neutrality imposes are also found in international law applicable in peacetime. For example, under the Charter of the United Nations, States must respect the sovereignty of other States.30 Thus, States have duties of non-intervention and neutrality in relation to a non-international armed conflict against a friendly State.31

15.2.1.4 Proclamations of Neutrality and Other Notifications of Neutral Status. A formal declaration by nonparticipating States of their intention to adopt a neutral status generally would not be required for a State to retain its neutral status.32 However, in light of the importance of national policy in determining whether the law of neutrality is applicable, States traditionally issued proclamations of neutrality in order to make known their neutral status in relation to a conflict.33 These proclamations of neutrality would state the determination of the

28 See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 490-91 (1106) (1999) (The law of neutrality leads to considerable modifications in the relationships between the neutral and the belligerent states, for instance as to the admissibility of exports, the sojurn of warships of the parties to the conflict in neutral waters, and the control of neutral trade. These fundamental changes are not triggered by every armed incident, but require an armed conflict of a certain duration and intensity. Thus, the threshold of application of the law of neutrality is probably higher than that for the rules of the law of war relating to the conduct of hostilities and the treatment of prisoners, which are applicable also in conflicts of less intensity.). 29 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. (88-89) (The Court will now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the position was put as follows by one State: The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. Thus: the territory of neutral powers is inviolable; belligerents are bound to respect the sovereign rights of neutral powers neutral states have equal interest in having their rights respected by belligerents . It is clear, however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the transborder damage caused to a neutral State by the use of a weapon in a belligerent State. The principle so circumscribed is presented as an established part of the customary international law. The Court finds 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.) (citations omitted) (amendments in original). 30 Refer to 1.11.3 (Prohibition on Certain Uses of Force). 31 Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC). 32 Compare 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities). 33 For example, Franklin D. Roosevelt, Proclamation: Proclaiming the Neutrality of the United States in the War Between Germany and France; Poland; and The United Kingdom, India, Australia and New Zealand, Sept. 5, 1939,

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State to observe the duties of neutrality and warn its nationals of the penalties they would incur for joining or assisting a belligerent State.34

Although the practice of issuing formal proclamations of neutrality has declined, States have continued to make public statements of neutrality to indicate their national policy and legal status in relation to an armed conflict.35 States may also communicate their neutral status through diplomatic channels or use other means they deem appropriate.

Qualified Neutrality. The United States has taken the position that certain duties 15.2.2of neutral States may be inapplicable under the doctrine of qualified neutrality.

54 STAT. 2629 (AND I do hereby give notice that all nationals of the United States and others who may claim the protection of this government, who may misconduct themselves in the premises, will do so at their peril, and that they can in no wise obtain any protection from the government of the United States against the consequences of their misconduct.); Woodrow Wilson, Proclamation, Aug. 18, 1914, 38 STAT. 2015 (Whereas the United States is in fact aware of the existence of a state of war between Belgium and Germany; And Whereas the United States is on terms of friendship and amity with the contending powers, and with the persons inhabiting their several dominions;); George Washington, Proclamation of Neutrality, Apr. 22, 1793, reprinted in 32 THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745-1799, 430-31 (1939) (Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, on the one part, and France on the other; and the duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers: I have therefore thought fit by these presents, to declare the disposition of the United States to observe the conduct aforesaid towards those powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition. And I do hereby also make known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding or abetting hostilities against any of the said powers, or by carrying to any of them, those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture; and further that I have given instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the Courts of the United States, violate the law of nations, with respect to the powers at war, or any of them.). 34 1956 FM 27-10 (Change No. 1 1976) 514 (When war occurs, neutral States usually issue proclamations of neutrality, in which they state their determination to observe the duties of neutrality and warn their nationals of the penalties they incur for joining or assisting a belligerent.). 35 For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (Iran and Jordan each issued proclamations of neutrality during the Persian Gulf crisis and, as described, refrained from active participation in the war.); Ronald Reagan, Written Responses to Questions Submitted by Al-Qabas of Kuwait, May 12, 1987, 1987-I PUBLIC PAPERS OF THE PRESIDENTS 529 (The United States is neutral in the Iran-Iraq war.); Jimmy Carter, Situation in Iraq and Iran: Remarks Concerning the Conflict, Sept. 24, 1980, 1980-81-II PUBLIC PAPERS OF THE PRESIDENTS 1921, 1922 (Let me repeat that we have not been and we will not become involved in the conflict between Iran and Iraq.); Royal Government of Laos, Statement of Jul. 9, 1962, reprinted in Burma, Cambodia Canada, Peoples Republic of China, Democratic Republic of Viet-Nam, etc., Declaration on the Neutrality of Laos, Jul. 23, 1962, 456 UNTS 301, 302-03 (The Royal Government of Laos, Being resolved to follow the path of peace and neutrality in conformity with the interests and aspirations of the Laotian people, as well as the principles of the Joint Communiqu of Zurich dated June 22, 1961, and of the Geneva Agreements of 1954, in order to build a peaceful, neutral, independent, democratic, unified and prosperous Laos, Solemnly declares that: (4) It will not enter into any military alliance or into any agreement, whether military or otherwise, which is inconsistent with the neutrality of the Kingdom of Laos; it will not allow the establishment of any foreign military base on Laotian territory, nor allow any country to use Laotian territory for military purposes or for the purposes of interference in the internal affairs of other countries, nor recognise the protection of any alliance or military coalition, including SEATO;).

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The law of neutrality has traditionally required neutral States to observe a strict impartiality between parties to a conflict, regardless of which State was viewed as the aggressor in the armed conflict.36 However, after treaties outlawed war as a matter of national policy, it was argued that neutral States could discriminate in favor of States that were victims of wars of aggression.37 Thus, before its entry into World War II, the United States adopted a position of qualified neutrality in which neutral States had the right to support belligerent States that had been the victim of flagrant and illegal wars of aggression.38 This position was controversial.39

The Law of Neutrality Under the Charter of the United Nations. The Charter of 15.2.3the United Nations may, in certain respects, be understood to be consistent with, and, in other respects, to modify, rules reflected in the law of neutrality.

36 Refer to 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward Contending Parties). 37 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 221 (61) (Similarly, it is open to neutral States as a matter of legal right to give effect to their moral obligation to discriminate against the aggressor and to deny him, in their discretion, the right to exact from neutrals a full measure of impartiality. In some cases neutral States may, having regard to their own safety and the desire not to be involved in the war, continue to accord impartial treatment to the aggressor. But they need not do so wherever they feel in the position actively to assert the principle, as did the United States and other States before entering the Second World War, that the historic foundation of neutrality as an attitude of absolute impartiality has disappeared with the renunciation and the abolition of war as an instrument of national policy. With regard to States bound by the obligations of the Charter of the United Nations that legal faculty and that moral obligation assume the clear complexion of a legal duty.). 38 Address of Robert H. Jackson, Attorney General of the United States, Inter-American Bar Association, Havana, Cuba, March 27, 1941, 35 AJIL 348, 353-54 (1941) (Present aggressive wars are civil wars against the international community. Accordingly, as responsible members of that community, we can treat victims of aggression in the same way we treat legitimate governments when there is civil strife and a state of insurgencythat is to say, we are permitted to give to defending governments all the aid we choose. In the light of the flagrancy of current aggressions, which are apparent on their face, and which all right thinking people recognize for what they are, the United States and other states are entitled to assert a right of discriminatory action by reason of the fact that, since 1928 so far as it is concerned, the place of war and with it the place of neutrality in the international legal system have no longer been the same as they were prior to that date.). 39 See, e.g., Edwin Borchard, War, Neutrality and Non-Belligerency, 35 AJIL 618 (1941) (At Havana on March 27, 1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was now obliged to render to England (and presumably others) all aid short of war, while at the same time it is the declared determination of the government to avoid entry into the war as a belligerent. Apparently convinced that United States military aid to one belligerent alone cannot be justified by the traditional international law, the Attorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality of the past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest Articles of Interpretation of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way of life for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The new international law is thus found in the vague and illusory monuments to the myth called collective security, which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General that many international lawyers do not share his views on international law or how international law is created, or follow his unique construction of documents.).

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15.2.3.1 Consistency Between the Rules in the Law of Neutrality and the Charter of the United Nations. In certain cases, the rules on the use of force prescribed in the Charter of the United Nations would be understood to be consistent with rules in the law of neutrality.40

For example, a neutral States acts of participation in a war of aggression against another member of the United Nations would likely violate not only its duties under the law of neutrality,41 but also the Charters prohibition on the unlawful use of force.42

In the past, the law of neutrality was often viewed as not regulating a States decision as to whether to adopt a position of neutrality or hostility towards another State.43 Thus, under this view, the requirements of the law of neutrality could have been avoided by neutral States if they decided to enter the war or by belligerent States if they chose to declare war on a neutral.44 The Charter of the United Nations clarifies that such decisions to resort to force may not be made without a proper legal basis.45 Thus, insofar as provisions of the Charter are coincident with certain rules in the law of neutrality, such requirements of the Charter may not be evaded in the

40 See, e.g., BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 673 (1994) (For the purpose of responding to an armed attack, the state acting in self-defence is allowed to trespass on foreign territory, even when the attack cannot be attributed to the state from whose territory it is proceeding. It does not follow from the fact that the right of self-defence pursuant to Art. 51 is restricted to the case of an armed attack that defensive measures may only affect the attacker. Thus it is compatible with Art. 51 and the laws of neutrality when a warring state fights hostile armed forces undertaking an attack from neutral territory on the territory of the neutral state, provided that the state concerned is either unwilling or unable to curb the ongoing violation of its neutrality.). 41 Refer to 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward Contending Parties). 42 Refer to 1.11.3 (Prohibition on Certain Uses of Force). 43 See Editorial Comment: The Hague Conventions and the Neutrality of Belgium and Luxemburg, 9 AJIL 959 (1915) ([Articles of the Hague V] do not, however, guarantee neutrality, nor do they prevent a state from declaring war against a state wishing to remain neutral, which thus becomes a belligerent and loses the benefit of the convention. If the Hague conventions were violated by Germany in this matter it would appear to be a violation of the spirit, not of the letter, and indeed it is difficult to maintain that there was a violation even of the spirit, because international law in its present development apparently allows nations to go to war whenever they please, and the Hague conventions do not modify or abridge this provision of the law of nations.). 44 See John Delatre Falconbridge, The Right of a Belligerent to Make War Upon a Neutral, 4 TRANSACTIONS OF THE GROTIUS SOCIETY 204, 209-11 (1918) (The fifth [Hague] convention [of 1907] does not relate to the question of the right to convert the relation of belligerent and neutral into that of belligerent and belligerent, but simply defines the rights and obligations incidental to the former relation. The fundamental proposition which has been left untouched by The Hague Conventions is that by the existing rules of international law one State may declare war against another State without any justifiable casus belli, and it commits no breach of law in so doing if it complies with the requirements relating to the declaration of war. Its action may be immoral, but it is not illegal unless there is a treaty forbidding such action (as there was in the case of Belgium).). 45 See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 489 (1104) (1999) (Traditional international law left to each state the sovereign decision of whether, at the outbreak of a conflict between other states, it would participate or remain neutral. At the outbreak of a conflict between two other states, a state is still free to participate or to remain neutral. Modern international law, however, limits the freedom of decision as to which side on which a state may become involved. Support granted to an aggressor is illegal, participation on the side of the victim of aggression, being collective self-defence, is permissible.).

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way that arguably certain requirements of the law of neutrality previously could have been evaded.

15.2.3.2 Modification of Rules in the Law of Neutrality. The Charter of the United Nations and decisions by the U.N. Security Council may, in certain circumstances, qualify rights and obligations under the law of neutrality.46

For example, under the Charter of the United Nations, States may have obligations to support military operations that have been authorized by the U.N. Security Council.47 In such circumstances, the obligations under the Charter would prevail over the obligations under the law of neutrality.48 For example, a State that is not participating in the conflict that received in its territory military forces operating pursuant to a U.N. Security Council resolution might be required to return them, rather than to intern them under the law of neutrality.49 Moreover, U.N. Security Council resolutions may obligate States to take measures that would not be required by neutrality law. For example, the U.N. Security Council may require States to impose restrictions on private conduct within their jurisdiction, such as to prevent private individuals from selling weapons to certain States or non-State armed groups.50

46 1956 FM 27-10 (Change No. 1 1976) 513 (Although these provisions of the Charter have not made it impossible for a State to remain neutral, the obligations which the Charter imposes have to a certain extent qualified the rights of States in this respect.). 47 Refer to 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions). 48 For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (Neutrality in the Persian Gulf War was controlled in part by the 1907 Hague V Convention; but traditional concepts of neutral rights and duties are substantially modified when, as in this case, the United Nations authorizes collective action against an aggressor nation. It was the US position during the Persian Gulf crisis that, regardless of assertions of neutrality, all nations were obligated to avoid hindrance of Coalition operations undertaken pursuant to, or in conjunction with, UNSC decisions, and to provide whatever assistance possible. By virtue of UNSC Resolution 678 (29 November), members were requested to provide appropriate support for the actions undertaken by nations pursuant to its authorization of use of all necessary means to uphold and implement prior resolutions. The language of UNSC Resolution 678 is consistent with Articles 2(5), 2(6), 25, and 49 of the UN Charter.). 49 FINAL REPORT ON THE PERSIAN GULF WAR 628 (Although the situation never arose, the United States advised Iran that, in light of UNSC Resolution 678, Iran would be obligated to return downed Coalition aircraft and aircrew, rather than intern them. This illustrates the modified nature of neutrality in these circumstances. It also was the US position that entry into Iranian (or Jordanian) airspace to rescue downed aviators would be consistent with its international obligations as a belligerent, particularly in light of Resolution 678.). 50 For example, U.N. SECURITY COUNCIL RESOLUTION 1970, U.N. Doc. S/RES/1970, 9 (Feb. 26, 2011) (Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories,); U.N. SECURITY COUNCIL RESOLUTION 713, U.N. Doc S/RES/713 6 (Sept. 25, 1991) (Decides, under Chapter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia;).

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Neutrality Under Regional and Collective Self-Defense Arrangements. Regional 15.2.4and collective self-defense agreements may affect States rights to maintain a neutral status because the States may be required to provide assistance or take military action in collective self-defense until the U.N. Security Council has taken measures necessary to maintain international peace and security.51 The obligations by a State under such an agreement may prevail over the States right under the customary law of neutrality to be impartial among the belligerents and to abstain from the armed conflict.

15.3 OVERVIEW OF THE NEUTRALITY LAWS FRAMEWORK OF RECIPROCAL RIGHTS AND DUTIES

The law of neutrality establishes a framework of reciprocal rights and duties for neutrals and belligerents.

Neutral Rights. Belligerent States are bound to respect the sovereign rights of 15.3.1neutral States (e.g., the inviolability of a neutral States territory).52 The exercise by a neutral State of its rights under the law of neutrality may not be considered an unfriendly act by either of the belligerents.53

15.3.1.1 Inviolability of Neutral Territory - Prohibition on Unauthorized Entry. The territory of neutral States is inviolable.54 The inviolability of neutral territory prohibits any unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by armed forces or instrumentalities of war.55

15.3.1.2 Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of Neutrality. The inviolability of neutral territory also requires belligerent forces to refrain from committing hostile acts or other acts that, if knowingly permitted by a neutral State, would constitute a violation of neutrality in neutral territory (including neutral lands, neutral

51 Refer to 1.11.5.5 (Right of Collective Self-Defense). 52 HAGUE XIII art. 1 (Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.); 1956 FM 27-10 (Change No. 1 1976) 512 (It is the duty of belligerents to respect the territory and rights of neutral States.). 53 HAGUE XIII art. 26 (The exercise by a neutral Power of the rights laid down in the present convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles relating thereto.). 54 HAGUE V art. 1 (The territory of neutral Powers is inviolable.). 55 1956 FM 27-10 (Change No. 1 1976) 515 (b. Application of Rule. The foregoing rule prohibits any unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops or instrumentalities of war.).

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waters, and neutral airspace).56 For example, belligerent warships may not exercise the belligerent right of visit and search, and may not capture vessels in neutral waters.57

However, belligerent forces may use force in self-defense or as part of self-help enforcement actions against enemy forces that have committed violations of neutrality when the neutral State is unwilling or unable to address such violations.58

Neutral Duties -- Abstention From Participation in Hostilities and Impartial 15.3.2Conduct Toward Contending Parties. The principal duties of a neutral State are to abstain from any participation in the conflict and to be impartial in conduct towards contending parties.59

Certain other duties may be viewed as a consequence of these principal duties, but different publicists have categorized these duties differently. For example, the duty of a neutral State to refrain from supporting one side in the conflict may be viewed as a function of its duty to abstain from participation in hostilities.60 On the other hand, the duty of a neutral State to refrain from supporting one side in the conflict may also be viewed as a result of its duty of impartiality.61

The duties of a neutral State may also be classified in terms of: (1) abstention (obligations to refrain from taking certain actions); (2) prevention (obligations to take certain actions); and (3) acquiescence (obligations to accept certain actions by belligerents).62

56 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 3 (Belligerent states are obligated to refrain from performing acts of war in neutral waters or other acts which may constitute on the part of the State that tolerates them, a violation of neutrality.); HAGUE XIII art. 1 (Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.). 57 Refer to 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search); 15.15 (Capture of Neutral Vessels and Aircraft). 58 Refer to 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent Violations of Neutrality). 59 The Three Friends, 166 U.S. 1, 52 (1897) (Neutrality, strictly speaking, consists in abstinence from any participation in a public, private or civil war, and in impartiality of conduct toward both parties, .). 60 Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 485 (1101) (1999) (The duty of non-participation means, above all, that the state must abstain from supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to allow one party to the conflict to use the resources of the neutral state against the will of the opponent. Therefore, the defence of neutrality is part of the duty of non-participation.). 61 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 654 (294) (Since neutrality is an attitude of impartiality, it excludes such assistance and succor to one of the belligerents as is detrimental to the other, and, further, such injuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For neutrals must prevent belligerents from making use of their neutral territories, and of their resources, for military and naval purposes during the war.). 62 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (The duties of a neutral state may also be classifiedand frequently are so classifiedas duties of abstention, prevention and acquiesence [sic] (or toleration). Duties of abstention refer to acts the neutral state itself must refrain from performing; duties of prevention refer to acts the commission of which within its jurisdiction the neutral is obligated to prevent; and, finally, duties of

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15.3.2.1 Duty to Refrain From Providing War-Related Goods and Services to Belligerents. Neutral States have an obligation to refrain from providing war-related goods and services to belligerents.63 A neutral State is prohibited from supplying a belligerent State in any manner, either directly or indirectly, with warships, ammunition, or war material of any kind.64 The neutral State is also prohibited from providing money or loans to a belligerent State.65

A neutral State also has a duty to refrain from placing its various governmental agencies at the disposal of a belligerent in such a way as to aid it directly or indirectly in the prosecution of the war.66

Although a neutral State may not supply war-related goods and services to belligerents, a neutral State is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions, or anything that can be of use to an armed force.67 Commercial transactions between belligerent States and neutral corporations, companies, citizens, or persons resident in a neutral State are not prohibited.68 A belligerent State may purchase from such corporations, companies, citizens, or persons supplies, munitions, or anything that may be of use to an armed force, which can be exported or transported without involving the neutral State.69 acquiescence have reference to neutral obligations to permit belligerent measures of repression against neutral subjects found rendering certain acts of assistance to an enemy.). 63 Philander C. Knox, Attorney General, NeutralityMilitary SuppliesHorses, Apr. 4, 1902, 24 OPINIONS OF THE ATTORNEY GENERAL 15, 18 (1903) (One of the rules of international law which seems to be now fully agreed upon is that a neutral nation shall not give aid to one of the belligerents in the carrying on of the war.). 64 HAGUE XIII art. 6 (The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.). 65 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 16 (The neutral state is forbidden: a) To deliver to the belligerent, directly or indirectly, or for any reason whatever, ships of war, munitions or any other war material; b) To grant it loans, or to open credits for it during the duration of war. Credits that a neutral state may give to facilitate the sale or exportation of its food products and raw materials are not included in this prohibition.). 66 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 208 (As Hyde has observed, the duty to abstain from giving aid is a broad one and covers a vast field of governmental activities; for in addition to the prohibition against supplying belligerents with war materials of any kind the neutral is obligated, in general, to abstain from placing its various governmental agencies at the disposal of a belligerent in such a way as to aid it directly or indirectly in the prosecution of the war. Thus in naval warfare, the public vessels of a neutral state must refrain from rendering services of any kind to belligerent naval units at sea.). 67 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 22 (Neutral states are not obligated to prevent the export or transit at the expense of any one of the belligerents of arms, munitions and in general of anything which may be useful to their military forces.); HAGUE V art. 7 (A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.); HAGUE XIII art. 7 (A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could be of use to an army or fleet.). 68 1956 FM 27-10 (Change No. 1 1976) 527 (Commercial transactions with belligerents by neutral corporations, companies, citizens, or persons resident in neutral territory are not prohibited.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 15 (Of the acts of assistance coming from the neutral states, and the acts of commerce on the part of individuals, only the first are contrary to neutrality.). 69 1956 FM 27-10 (Change No. 1 1976) 527 (A belligerent may purchase from such persons supplies, munitions, or anything that may be of use to an army or fleet, which can be exported or transported without involving the neutral State.).

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The supply of services and goods to a belligerent State, however, must not convert neutral territory into a base of operations.70

If a neutral State prohibits the export or transport of arms, munitions, or anything that can be of use to an armed force, every measure of restriction or prohibition taken by a neutral State in regard to the provision of such supplies or munitions must be impartially applied by it to all belligerent States.71

15.3.2.2 Duty to Prevent Violations of Neutrality Within Its Jurisdiction. A neutral State has certain obligations to prevent violations of its neutrality within its territory. A neutral State has an obligation to prevent violations of its neutrality committed by belligerent forces.72 A neutral State also has an obligation to prevent violations of its neutrality committed by persons within its jurisdiction.73

15.3.2.3 Public Expressions of Sympathy Are Not Violations of Neutrality. Public expressions of sympathy for one belligerent or disapproval of another belligerent are not violations of duties of neutrality.74

15.3.2.4 Authorized Humanitarian Assistance Is Not a Violation of Neutrality. Humanitarian assistance given in accordance with international law is also not a violation of duties of neutrality.75 For example, a neutral States performing of the role of the Protecting Power in accordance with the 1949 Geneva Conventions is not regarded as unneutral conduct.76

70 Refer to 15.5.1 (Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a Belligerent From Neutral Territory). 71 HAGUE V art. 9 (Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.). 72 HAGUE XIII art. 25 (A neutral Power is bound to exercise such surveillance as the means at its disposal allow to prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.); HAGUE V art. 5 (A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.). 73 See, e.g., Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist certain standards recognized by the American Republics applicable in these circumstances and that in accordance with them they: ... (b) Shall prevent, in accordance with their internal legislations, the inhabitants of their territories from engaging in activities capable of affecting the neutral status of the American Republics.); Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral Government is bound Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.). 74 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 655 (294) (The required attitude of impartiality is not incompatible with sympathy with one belligerent, and disapproval of the other, so long as these feelings do not find expression in actions violating impartiality. Thus, not only public opinion and the press of a neutral State, but also its Government, may show their sympathy to one party or another without violating neutrality.). 75 LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 655 (294) (Moreover, acts of humanity on the part of neutrals and their subjects, such as the sending to military hospitals of doctors, medicine, provisions, dressing

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Correlative or Reciprocal Nature of Rights and Duties Under the Law of 15.3.3Neutrality. The rights and duties of belligerents and neutrals under the law of neutrality may be understood as correlative or reciprocal.

The duties of neutrals often correspond to rights of belligerents, and rights of neutrals often correspond to the duties of belligerents.77 For example, the duty of a neutral to abstain from hostilities is also a right of a belligerent not to have its adversary aided in hostilities by the neutral State. The right of a neutral State to have its territory be inviolable is also a duty of belligerent States to avoid conducting hostilities in neutral territory.

Similarly, the ability of a neutral to assert its rights may depend on whether it has fulfilled its corresponding neutral duties.78 For example, the right of a neutral State to have its territory be inviolable may not be asserted to the extent it has failed in its duty to ensure that its territory is not used as a base of operations by a belligerent.

In light of the correlative nature of the rights and duties of belligerents and neutrals under the law of neutrality, a single rule in the law of neutrality may reflect multiple rights and duties of both belligerents and neutrals. For example, hostile acts are not to be committed on neutral territory. This rule involves the right of the neutral State for its territory to be inviolable, and involves a duty on the part of the neutral State to prevent such acts. This rule also reflects a duty of the belligerent State to refrain from such acts, and a right of the belligerent State not to have such acts conducted by an opposing belligerent.

15.4 REMEDIES FOR VIOLATIONS OF NEUTRALITY LAW

Distinction Between Violations of Neutral Duties and the End of Neutral Status. 15.4.1Violations of neutrality by belligerent or neutral States should be distinguished from the end of a

material, and the like, and the sending of clothes and money to prisoners of war, can never be construed as acts of partiality, even if these comforts are provided for the wounded and the prisoners of one belligerent only.). 76 LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 269 (2nd ed., 2000) (Frequently, as has been seen in the discussion concerning protecting powers, a neutral power is appointed to represent the interests of one belligerent in the territory of the adverse party or for some of its nationals to be appointed to the Fact Finding Commission called for in Protocol I in relation to the investigation of alleged breaches of the law of armed conflict. In neither case can a belligerent suggest that such action is in breach of the obligations of neutrality.). 77 TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (It is also helpful to observe that the duties of a neutral correspond to the rights of a belligerent, and that the rights of a neutral correspond to the duties of a belligerent. The neutrals duty to observe a strict impartiality corresponds to the belligerents right to demand impartiality on the part of the neutral. At the same time, the neutral has a right to demand that the belligerent will act toward it in such a manner as to respect its position of impartiality, and there is no question but that the belligerent is under a duty to do so.). 78 G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 305 (28.1) (1908) (The rights and duties of neutrality are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State fail to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral duties, they are liable to the punishment of being treated in their persons or property as public enemies of the offended belligerent.).

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States neutral status. Rather, whether violations of neutrality result in the end of the neutral status of a State may depend on the national policies of that State and the belligerent States.79

Acts that are incompatible with the relationship between the neutral State and a belligerent State under the law of neutrality need not end the neutral States neutrality and bring that State into the conflict as a belligerent. For example, despite Vichy Frances violations of its neutral duties during World War II and despite the Allied invasion of French North Africa, diplomatic relations persisted between the United States and France during World War II.80

Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to 15.4.2Prevent Violations of Neutrality. Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the forces of one belligerent entering or passing through its territory (including its lands, waters, and airspace), the other belligerent State may be justified in attacking the enemy forces on the neutral States territory.81 This view has been reflected in the military manuals of other States.82 For example, consistent with the jus ad bellum requirements

79 Refer to 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed Conflict). 80 DWIGHT D. EISENHOWER, CRUSADE IN EUROPE 86-88 (1997) (Vichy France was a neutral country and during the entire period of the war the United States had maintained diplomatic connection with the French Government. Never, in all its history, had the United States been a party to an unprovoked attack upon a neutral country and even though Vichy was avowedly collaborating with Hitler, there is no doubt that American political leaders regarded the projected operation, from this viewpoint, with considerable distaste. The Allied invasion of Africa was a most peculiar venture of armed forces in the field of international politics; we were invading a neutral country to create a friend.). 81 1956 FM 27-10 (Change No. 1 1976) 520 (Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent State may be justified in attacking the enemy forces on this territory.). 82 2004 UK MANUAL 1.43a (Neutral states must refrain from allowing their territory to be used by belligerent states for the purposes of military operations. If a neutral state is unable or unwilling to prevent the use of its territory for the purposes of such military operations, a belligerent state may become entitled to use force in self-defence against enemy forces operating from the territory of that neutral state. Whether or not they are so entitled will depend on the ordinary rules of the jus ad bellum.); 2006 AUSTRALIAN MANUAL 11.8 (As a general rule of international law, all acts of hostility in neutral territory, including neutral land, neutral waters and neutral airspace are prohibited. A neutral state has a duty to prevent the use of its territory as a sanctuary or a base of operations by the belligerent forces of any side. If the neutral state is unable or unwilling to enforce effectively its right of inviolability, an aggrieved belligerent may resort to acts of hostility in neutral territory against enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorised to act in self-defence when attacked or threatened with attack while in neutral territory or when attacked or threatened from neutral territory); 2001 CANADIAN MANUAL 1304(3) (A neutral state is permitted to resist any attempted violation of its borders by force and such resistance does not make the neutral a party to the conflict. If enemy forces enter neutral such territory and the neutral state is unwilling or unable to intern or expel them, the opposing party is entitled to attack them there, or to demand compensation from the neutral for this breach of neutrality.); 2002 GERMAN COMMANDERS HANDBOOK: LEGAL BASES FOR THE OPERATIONS OF NAVAL FORCES 232 (On the one hand, the parties to the conflict are obliged to respect the inviolability of neural [sic] territory, neutral internal waters, neutral territorial seas and the neutral airspace above these areas. Within and above these areas all hostilities, that is the use of armed force and of other measures of maritime war (including measures based on the law of prize) are prohibited. There is one exception to this principle which applies to measures of self-defence, that is the event that one of the parties to the conflict is attacked or endangered to be attacked in these areas. On the other hand, a neutral state is obliged to prevent the parties to the conflict from misusing these areas as sanctuary or

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for self-defense, belligerent forces may act in self-defense when attacked or threatened with attack from enemy forces unlawfully present in neutral territory,83 including by taking appropriate action to counter the use of neutral territory as a base of enemy operations when the neutral State is unwilling or unable to prevent such violations.84

Neutral States Use of Force to Defend Its Neutrality. A neutral State may also 15.4.3engage in self-help to prevent violations of neutrality on its territory. Such self-help is also an obligation of the neutral State.85

The fact that a neutral State resists, even by force, attempts to violate its neutrality cannot be regarded as a hostile act.86 For example, a State whose territory is adjacent to a theater of war normally mobilizes a portion of its forces to prevent the forces of either belligerent from entering its territory, to intern such persons as may be permitted to enter, and generally to carry out its

base of operations. If it is unwilling or unable to do so, the other party to the conflict is entitled to take all measures necessary to terminate the misuse of neutral territory or neutral waters.). 83 2007 NWP 1-14M 7.3 (If the neutral nation is unable or unwilling to enforce effectively its right of inviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities of enemy forces, including warships and military aircraft, making unlawful use of that territory. 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.). 84 For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, Apr. 30, 1970, 1970 PUBLIC PAPERS OF THE PRESIDENTS 405, 406-08 (American policy since then has been to scrupulously respect the neutrality of the Cambodian people. North Vietnam, however, has not respected that neutrality. For the past 5 yearsas indicated on this map that you see hereNorth Vietnam has occupied military sanctuaries all along the Cambodian frontier with South Vietnam. Some of these extend up to 20 miles into Cambodia. The sanctuaries are in red and, as you note, they are on both sides of the border. They are used for hit and run attacks on American and South Vietnamese forces in South Vietnam. These Communist occupied territories contain major base camps, training sites, logistics facilities, weapons and ammunition factories, airstrips, and prisoner-of-war compounds. [T]his is the decision I have made. In cooperation with the armed forces of South Vietnam, attacks are being launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border. This is not an invasion of Cambodia. The areas in which these attacks will be launched are completely occupied and controlled by North Vietnamese forces. Our purpose is not to occupy the areas. Once enemy forces are driven out of these sanctuaries and once their military supplies are destroyed, we will withdraw.); SPAIGHT, AIR POWER AND WAR RIGHTS 434 (Justifiable entry of neutral jurisdiction.The international law of neutrality is based on the principle that neutral States exclude both belligerent parties from entry into or passage through their territory. If that condition is not fulfilled, to advantage of one party and the detriment of the other, the latter is entitled, after protest, to take the action necessary to protect his interests. He is entitled to follow his enemy into neutral jurisdiction and to attack him there. It was for this reasons that Japan was able to justify her action in 1904 in cutting out the Russian cruiser Reshitelni from the Chinese harbor of Chifu when it became apparent that China was unable or unwilling to disarm the vessel in accordance with the requirements of international law. It was on the same principle that the British intervention in Syria in 1941 was justifiable. The Vichy authorities there were allowing German aircraft to use the Syrian airfields, and such use was particularly damaging to British interests at that time, in view of the revolt in Iraq.). 85 Refer to 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its Jurisdiction). 86 HAGUE V art. 10 (The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be regarded as a hostile act.).

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duties of neutrality.87 Such military operations are not regarded as hostile acts against the belligerent State.

Redress of Certain Violations of Neutrality. In addition to the obligations to 15.4.4prevent violations of neutrality, a State may also have obligations to redress violations of neutrality that have been committed.

For example, violations of the law of neutrality may result in liability for payment of damages in certain cases.88 As a case in point, if harm is caused in a neutral State by the unauthorized entry of belligerent forces, the offending State may be required, according to the circumstances, to respond in damages.89

Similarly, when a ship has been captured in the territorial waters of a neutral State, the neutral State must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew.90 If the prize is no longer in the jurisdiction of the neutral power, the captor State, on the demand of the neutral State, must liberate the prize with its officers and crew.91 The neutral State has a duty to make this demand.92

15.5 PROHIBITION ON THE USE OF NEUTRAL TERRITORY AS A BASE OF OPERATIONS

Neutral territory (including neutral lands, waters, and airspace) may not be used as a base of operations against belligerent forces.93 For example, belligerent States are forbidden to use a

87 1956 FM 27-10 (Change No. 1 1976) 519 (In order to protect its neutrality, a State whose territory is adjacent to a theater of war normally mobilizes a portion of its forces to prevent troops of either belligerent from entering its territory, to intern such as may be permitted to enter, and generally to carry out its duties of neutrality.). 88 Refer to 18.16 (Compensation for Violations of the Law of War). 89 1956 FM 27-10 (Change No. 1 1976) 515 (If harm is caused in a neutral State by the unauthorized entry of a belligerent, the offending State may be required, according to the circumstances, to respond in damages.). 90 HAGUE XIII art. 3 (When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew.). 91 HAGUE XIII art. 3 (If the prize is not in the jurisdiction of the neutral power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew.). 92 William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (And whereas the Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present concurring therein) did advise and consent to the adherence by the United States to the said Convention with the reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of the United States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate, did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;). 93 Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist certain standards recognized by the American Republics applicable in these circumstances and that in accordance with them they: (a) Shall prevent their respective terrestrial, maritime and aerial territories from being utilized as

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neutral States ports and waters as a base of naval operations against their adversaries,94 and a neutral State has a corresponding obligation to prevent such use.95

The prohibition against the use of neutral territory as a base of operations extends to any hostile expeditions against a belligerent State, and thus includes such expeditions by non-State actors.96 For example, a neutral State has an obligation to prevent the arming of any vessel within its jurisdiction that is intended to engage in hostile operations against a State with which it is at peace and to prevent the departure from its jurisdiction of any vessel intended to engage in hostile operations that has been adapted entirely or partly within such jurisdiction for use in war.97

The prohibition on the use of neutral territory as a base of operations includes prohibitions against (1) outfitting hostile expeditions with supplies and services; (2) recruiting forces in neutral territory; (3) establishing military communications facilities in neutral territory; and (4) moving belligerent forces or convoys of military supplies on land.

Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a 15.5.1Belligerent From Neutral Territory. It is forbidden to permit the use of the neutral States territory for the fitting out of hostile expeditions.98 As a case in point, a belligerent States warships may not make use of a neutral States ports, roadsteads, and territorial waters to bases of belligerent operations.); 1955 NWIP 10-2 442 (Belligerents are forbidden to use neutral territory, territorial sea, or air space as a base for hostile operations.). 94 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 4 (Under the terms of the preceding article, a belligerent state is forbidden: a) To make use of neutral waters as a base of naval operations against the enemy, or to renew or augment military supplies or the armament of its ships, or to complete the equipment of the latter;); HAGUE XIII art. 5 (Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea.). 95 See, e.g., Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral Government is bound Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.). Refer to 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its Jurisdiction). 96 Refer to 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed Groups Against Other States). 97 HAGUE XIII art. 8 (A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which has been adapted entirely or partly within the said jurisdiction for use in war.); Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral Government is bound First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.). 98 1956 FM 27-10 (Change No. 1 1976) 526 (It is also forbidden to permit the use of its territory for the fitting out of hostile expeditions.).

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replenish or increase their supplies of war materials or their armaments, or for completing their crews.99

Prohibition Against Recruiting and Forming Corps of Combatants. Units of 15.5.2combatants may not be formed nor may recruiting agencies be established on the territory of a neutral State to assist a belligerent State.100 This means that the establishment of recruiting agencies, the enlistment of personnel, the formation and organization of hostile expeditions on a neutral States territory, and the passage across its frontiers of organized bodies of personnel intending to enlist are prohibited.101

15.5.2.1 Exception for Authorized Medical Personnel. This prohibition does not extend to medical personnel and units of voluntary aid societies of a neutral State who are duly authorized to provide medical assistance to a belligerent State.102 In no circumstance shall such assistance by medical personnel and units of voluntary aid societies of the neutral State be considered as interference in the conflict.103

15.5.2.2 Exception for Persons Crossing a Neutral States Frontiers Separately to Assist a Belligerent State. The prohibition against organizing units of combatants is directed against organized bodies, which only require being armed to become an immediate fighting force.104 Thus, the responsibility of a neutral State is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerent States.105 Individuals crossing the frontier singly or in small bands that are unorganized create no obligation on the neutral State.106

99 HAGUE XIII art. 18 (Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews.). 100 HAGUE V art. 4 (Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.). 101 1956 FM 27-10 (Change No. 1 1976) 522b (Application of Rule. The establishment of recruiting agencies, the enlistment of men, the formation and organization of hostile expeditions on neutral territory, and the passage across its frontiers of organized bodies of men intending to enlist are prohibited.); Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist certain standards recognized by the American Republics applicable in these circumstances and that in accordance with them they: ... (c) Shall prevent on their respective territories the enlistment of persons to serve in the military, naval, or air forces of the belligerents;). 102 1956 FM 27-10 (Change No. 1 1976) 522c (This prohibition does not extend to medical personnel and units of a voluntary aid society duly authorized to join one of the belligerents. (See GWS, art. 27; par. 229 herein.)). 103 Refer to 4.12 (Staff of a Recognized Aid Society of a Neutral Country). 104 1956 FM 27-10 (Change No. 1 1976) 524a (The prohibition in Article 4, H. V (par. 522), is directed against organized bodies which only require to be armed to become an immediate fighting force.). 105 HAGUE V art. 6 (The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents.). 106 1956 FM 27-10 (Change No. 1 1976) 524a (Individuals crossing the frontier singly or in small bands that are unorganized create no obligation on the neutral State.).

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Neutral States shall not oppose the voluntary departure of nationals of belligerent States even though they leave simultaneously in great numbers; but they may oppose the voluntary departure of their own nationals going to enlist in the armed forces of belligerent States.107 Neutral States are not required to enact legislation forbidding their nationals to join the armed forces of belligerent States.108

Neutral States, however, may not send regularly constituted military units across the frontier in the guise of volunteers or small unorganized bands.109

Prohibition Against Establishment or Use of Belligerent Communications 15.5.3Facilities in Neutral Territory. Belligerent States are prohibited from erecting on the territory of a neutral State any apparatus for the purpose of communicating with belligerent forces on land or sea.110 Belligerent States are prohibited from using any installation of this kind established by them before the armed conflict on the territory of a neutral State for purely military purposes, and which has not been opened for the service of public messages.111

15.5.3.1 Use of Neutral Facilities by Belligerents Not Prohibited. A neutral State does not, however, have to forbid or restrict the use on behalf of belligerent States of communications equipment and facilities belonging to the neutral State, or belonging to companies or private individuals.112

That a neutral State, if it so desires, may transmit messages by means of its communications facilities does not imply that the neutral State may use such facilities or permit

107 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 23 (Neutral states shall not oppose the voluntary departure of nationals of belligerent States even though they leave simultaneously in great numbers; but they may oppose the voluntary departure of their own nationals going to enlist in the armed forces.). 108 1956 FM 27-10 (Change No. 1 1976) 524a (Neutral States are not required to enact legislation forbidding their nationals to join the armed forces of the belligerents.). 109 1956 FM 27-10 (Change No. 1 1976) 524a (The foregoing rules do not, however, permit a State professing to be neutral to send regularly constituted military units across the frontier in the guise of volunteers or small unorganized bands.). 110 HAGUE V art. 3 (Belligerents are likewise forbidden to: (a.) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;); HAGUE XIII art. 5 (Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 4 (Under the terms of the preceding article, a belligerent state is forbidden: b) To install in neutral waters radio-telegraph stations or any other apparatus which may serve as a means of communication with its military forces, or to make use of installations of this kind it may have established before the war and which may not have been opened to the public.). 111 HAGUE V art. 3 (Belligerents are likewise forbidden to: ... (b.) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.). 112 HAGUE V art. 8 (A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.).

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their use to lend assistance to the belligerents on one side only.113 Every measure of restriction or prohibition taken by a neutral State in regard to the use of its communications facilities and equipment must be impartially applied by it to all belligerent States.114 It also must see to the same obligation being observed by companies or private individuals owning such communication equipment and facilities.115

Movement of Belligerent Forces and Convoys of Supplies Through Neutral Land 15.5.4Territory. Belligerent States are forbidden to move forces or convoys of either munitions of war or supplies across the land territory of a neutral State.116 This rule only prohibits the official acts of a belligerent State in convoying or shipping munitions and supplies through a neutral State as part of an expedition; it does not prohibit the shipment of such supplies by private persons.117

However, a neutral State may authorize passage through its territory of the wounded and sick, including the overflight of its territory by certain medical aircraft.118

15.6 NEUTRAL PERSONS

Definition of Neutral Person. The nationals of a State that is not taking part in the 15.6.1war are considered neutral persons.119

Forfeiture of Protections of Neutral Status by a Neutral Person. A national of a 15.6.2neutral State would not retain the protections that a person would derive by virtue of the neutral status of his or her State of nationality if that person commits:

hostile acts against a belligerent State; or

acts in favor of a belligerent State, particularly if that person voluntarily enlists in the ranks of the armed forces of one of the parties to the armed conflict.120

113 1956 FM 27-10 (Change No. 1 1976) 530 (The liberty of a neutral State, if it so desires, to transmit messages by means of its telegraph, telephone, cable, radio, or other communications facilities does not imply the power so to use them or to permit their use as to lend assistance to the belligerents on one side only.). 114 HAGUE V art. 9 (Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.). 115 HAGUE V art. 9 (A neutral Power must see to the same obligations being observed by companies or private individuals owning telegraph