Clarifying Neutrality: The Rise of Different Statuses?
With the armed conflict between Russia and Ukraine, one can witness the rebirth of a classical topic of international law: the law of neutrality. Some argue that neutrality is “obsolete.” An alternative perspective is that a new kind of neutrality, called “qualified neutrality,” is applicable. Others are convinced that classical neutrality is still applicable, and that in this case third-party States have failed repeatedly to observe their legal obligations.
Strikingly, however, the different shades of neutrality and related concepts are not well defined. What is “qualified neutrality”? Does “differential neutrality” differ from “qualified neutrality”? What is non-belligerency and how does it relate to neutrality? This post aims to clarify these concepts.
Ordinary Neutrality
Ordinary neutrality dictates strict adherence to the classic law of neutrality. Part of this law is codified in Hague Convention V (land warfare) and Hague Convention XIII (naval warfare) of 1907, the provisions of which reflect customary law. The law of neutrality requires a State to abstain from hostilities and from contributing to the military activities of other States. The latter includes the prohibition of the supply of military materiel and the obligation to actively defend the inviolability of its territory. The neutral State also has a duty of tolerance for certain acts undertaken by a belligerent, such as the measures taken by a belligerent to curb violations of neutrality or the right to search and visit at sea.
A State can choose to adopt the status of ordinary neutrality, except for those States that have committed themselves by some norm of international or constitutional law to be permanently neutral, like Switzerland through an agreement concluded in 1815. The law of neutrality imposes limited duties on neutral States because such duties are “exceptions” to the general freedom of the neutral State. As a neutral State should not find itself in a worse position because of an international armed conflict it has not chosen, it is also necessary to interpret such duties restrictively.
Differential Neutrality
The advent of the UN collective security system led to a modification of neutrality law. Article 2(5) of the UN Charter obliges member States to assist the organization in all action it undertakes under the collective security umbrella. This is particularly relevant when the UN Security Council (UNSC) resolves upon sanctions or other non-forcible measures in a binding Chapter VII resolution. If the resolution includes measures which would be contrary to neutrality law, even States that have adopted a neutral status must apply these measures.
This kind of diminished neutrality is called “differential neutrality”: the State is neutral, but it may depart from its obligations of ordinary neutrality because the obligations stemming from the Charter prevail in case of conflict (either under Article 103 of the UN Charter, when the conflicting obligations are rooted in a treaty, such as the Hague Conventions V and XIII, or under the lex specialis principle, when the obligations stem from general international law). According to a current conceptualization, neutrality operates in the “horizontal” relationships between States; it is not the result of the “police action” of the UNSC in the “vertical” relationship between it and the various member States of the United Nations.
The legal situation is different when the UNSC authorizes States to use force. Indeed, absent any implementation of Article 43ff of the UN Charter, the Council only authorizes member States to resort to force and does not oblige them to do so. Therefore, such an authorization does not impact neutral status. A neutral State is not bound to act militarily, and its neutrality therefore remains unaltered. Conversely, if it acts upon the authorization to use force, the State would violate its neutral status.
In a comparable way, the UN General Assembly cannot issue resolutions that bind member States. When the General Assembly acts through the “Uniting for Peace” Resolution, it adopts only recommendations. States are free to follow these recommendations or not. Whether it is necessary to rely on such recommendations to allow States to adopt a status of qualified neutrality or of non-belligerency is a question not addressed here. Suffice it to say that international practice does not support such a position.
Differential neutrality is undoubtedly in line with international practice. Thus, Switzerland, as a permanently neutral State, is a member of the UN and has recognized that carrying out the sanctions decided upon by the UN does not contradict neutrality law. There have been no protests by other States to this practice.
Qualified Neutrality
Qualified neutrality is based on the additional premise that a State can only be either neutral or belligerent. It allows a departure from the obligations of military impartiality even when the UNSC has not taken any Chapter VII measure. Its conceptual foundation originates in the development of modern jus contra bellum. In situations where the UN does not implement the collective security system, a State may itself determine the aggressor and militarily discriminate against the aggressor State by supporting the victim. In the context of the conflict between Russia and Ukraine, several authors support the application of qualified neutrality.
Some of these commentators (e.g., here, here, and here) seem to invoke a “de majore ad minus” argument. That is, because collective self-defense was available to States (the majore), a fortiori an exception to the obligation of not supplying arms to Ukraine under neutrality must exist (the minus). Another group of authors argues that such a qualified approach is admissible because, in the present case, the UN General Assembly followed the aforementioned “Uniting for Peace” procedure to adopt a resolution designating Russia as the aggressor. Another author refers to “the community’s interest in international peace and security” in the case of a flagrant aggression. Thus, third-party States acting in support of Russia by supplying arms continue to violate their obligations as neutral States, but this is not the case for neutral States providing support to Ukraine. A last author sees the departure from the obligations of neutrality as an inherent “armed attack exception,” saying “the duties of neutrality would … impair the purpose of the right to self-defense.” The necessities of self-defense therefore allow the qualification of neutrality.
As is apparent, qualified neutrality is a claim of maintaining neutral status while allowing a departure from the duties of abstention and impartiality, based on a unilateral determination of the identity of the aggressor or violator of the UN Charter. Such legal justification presents distinct problems.
First, it opens the door to unpalatable double standards. Not all cases are as clear as Russia-Ukraine. Based on a purely unilateral and thus self-serving assessment of each State, a manifestly non-compatible action would or would not serve to qualify neutrality. A State would in such cases invoke the exception against enemies, while doing the contrary in a case where the aggressor is their ally. The very concept of neutrality would consequently fade away. In each case it would dwindle into an infinite number of shades of qualified neutralities according to the idiosyncrasies of every State’s policy.
Second, the qualification of neutrality would empty the status of neutrality of its substance. If a State that claims to be neutral can freely opt out of its substantive obligations by virtue of merely qualifying it, what remains of neutrality? Neutrality is a status, and in most cases a self-chosen one; if it is opted for, the State must honor the obligations that the law of neutrality establishes, otherwise, the status itself is lost. A State cannot eat the cake and have it, claiming to be neutral while not honoring the obligations inherent in the status; it must then rather abandon the status altogether. Thus, it is impossible to deliver weapons and to claim neutral status at the same time. The conceptual stretch is here beyond what is acceptable; it would reach a contradiction in terms. The better view is that if a State wishes to assist a victim State of aggression, it abstains from claiming at the same time to be neutral.
Looking at the question closely, the difficulties inherent in qualified neutrality stem from the fact that its proponents do not accept that a third status exists or is possible under international law. If such a third status existed, the State claiming to be “qualifiedly” neutral could simply switch to the third status, i.e., non-belligerency.
Non-belligerency
Non-belligerency is an intermediate status, predicated upon the split-up of the exclusive dichotomy between neutrality and belligerency. If one accepts such a third status, then neutrality no longer represents the mandatory and inescapable default status for States deciding not to take part in an international armed conflict. The intermediary status instead becomes an option for a State which does not seek to directly participate in the conflict and yet wants to militarily sustain one party. There would be a legal faculty for the concerned State to waive neutrality while at the same time not becoming belligerent.
Some arguments have been made in favor of such a third status. For one, it is said to be acceptable because the advent of the post-1945 collective security system enabled, or even called for, the emergence of an intermediate status between abstention (neutrality) and belligerency (participation). For another, it is claimed that by non-belligerency, the true neutrality status would be better preserved than by accepting the dirty and straddling category of qualified neutrality. This third status would also not authorize assistance provided to the aggressor. Other commentators dismiss the possibility of such a departure from neutrality. They claim the right to deviate from the obligations of neutrality arises merely from a conflict of norms solved in favor of the rules of jus ad bellum and to the detriment of the rules deriving from the status of neutrality.
There are various arguments in support of non-belligerency status. First, recent practice, especially in the Russia-Ukraine War (and to some extent older: e.g., intervention in Iraq in 2003), supports such an intermediary status. Since the beginning of the aforementioned conflict, Germany, France and many other States have delivered and continue to supply military material to Ukraine (for a wide vision of the support given to Ukraine beyond the military aid, see here.) Moreover, in most cases the denial of an intermediary status would lead to an impressive number of violations of neutrality not accompanied by any significant protest by States. This is highly improbable.
Second, a non-belligerent status would bring States into line with the partially customary rules contained in Articles 41 and 54 of the Articles on Responsibility of States for Internationally Wrongful Acts (ASRIWA). The non-belligerent would and could respect the duty to cooperate in bringing serious violations of international law to an end by lawful means, including military ones, which may be the most promising. The possibility of providing military aid to an aggressor might be lawful through the mere lens of non-belligerency. However, such aid and assistance becomes unlawful because it contravenes the customary rule contained in article 41(2) of the ASRIWA.
Third, the advantage of a third status is that it avoids the State itself “qualifying” its neutrality as it pleases and playing fast and loose with the status. In other words, this legal technique avoids the variable-geometry of qualified neutrality (which in fact is non-neutrality). Instead of maintaining a legal fiction of neutrality, the category of non-belligerency describes accurately what the States concerned do. Thus, non-belligerence allows us to explain conceptually the delivery of arms to a belligerent while at the same time not becoming a belligerent. It prevents States from adopting neutrality in pure disguise and almost in false pretense.
Finally, if there existed only two statuses, to abandon its neutrality a State would have to use force or be seen by other States has having resorted to the use of force. That would make its territory targetable as a party to the armed conflict. This solution is at odds with the peaceful purpose of the law. Non-belligerency offers an additional status without pushing invariably into belligerency.
Overall, the crucial point is to determine if States, the legislators in international law, have accepted such an intermediary status. Recent practice seems to put that beyond doubt.
Conclusion
The aim of this short post was to clarify the main concepts that one encounters when dealing with neutrality. However, questions remain. The content of non-belligerency needs defining. Is it only a factual status or does it contain special legal rights and duties? From which obligations of neutrality does this intermediary status permit States to depart, and from which does it not? How does it relate to co-belligerency? Where is the outer boundary of non-belligerency from where a State gets entangled into belligerency? Does recent practice around the war in Ukraine modify that boundary? In any event, and whatever the answers to the questions raised, the law of neutrality is currently evolving under the powerful stress-test of the ongoing conflict in Ukraine.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC.
Benjamin Meret is a PhD Candidate and teaching assistant at the University of Geneva.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: U.S. Army, Sgt. Cecil Elliott II
