Unit-2 Neutrality

2.1 Meaning of neutrality:

When two or more states engage in war they are known belligerents are called neutral states. Belligerents acquire certain rights and are bound by certain duties towards third states who do not the side of any belligerents. Such third states. Neutrality is derived from the Latin world “neuter” which means neither. Thus, neutrality is a status of a state which does not favor or disfavor either of the belligerents.

Oppenheim defines neutrality” as the attitude of the impartiality adopted by thread states towards belligerents and recognition by belligerents, such attitude creating rights and duties between the impartial states and belligerents.

Starke examines the concept of neutrality from two angles: (a) popular sense and (b) technical sense. In its popular sense neutrality denotes the attitude of a state which is not at war with belligerents and does not participate in the hostilities. In its technical sense neutrality denotes a legal status of a special nature, involving a complex of rights, duties and privileges of int. law, which must be respected by belligerents and neutrals alike. There are following essential elements in neutrality:

1. 1. Neutrality is an attitude of impartiality adopted by states in a war. Neutral state does not take part in war and remains impartial. Neutrality therefore discourages war. When a state wishes to remain neutral, it makes an immediate notification of neutrality.
   2. The attitude of neutrality adopted by a state is required to be recognized by the belligerent states.
   3. When the attitude of neutrality of a state is recognized, it gives rise certain rights and duties between the belligerents and the neutral states. These rights and duties are recognized under int. law and should be. Thus the member state of the UN served by the belligerent states and the neutral states.

2.1.1 Neutralization:

Neutralization is a permanent status of neutrality of a state which is guaranteed by an agreement or treaty. A state may declare its permanent neutrality and if such neutrality guaranteed by other states through the medium of int. agreement or treaty then it is called neutralization. For example Switzerland is a neutralized state. Such a state cannot participate in war without violating its neutrality.

Under int. customary law a neutral power remain free to exchange its status of neutrality for that of war, a neutralized state which is a party to a treaty prescribing its permanent neutrality may not do so. It cannot resort to war without a breach of its treaty obligation or release from these by the other parties to the treaty.

Neutralization differ fundamentally from neutrality, which is a voluntary policy as the Security Council assumed temporarily in regard to a state of war and terminable at any time by the state declaring its neutrality. Neutralization on the other hand is a permanent status conferred by an agreement with the interested powers, without whose consent cannot give up.

As compered neutralization and neutralism, neutralism denotes the policy of keeping away from the conflicts of blocks.

A neutralized state or permanent neutral state is a state which in return for a permanent guarantee of its territorial integrity by third powers obliged to maintain neutrality except for situation of its own defense. It has obligation to be neutral both in war and in peace. As a result, permanent neutral state is barred from participating in military alliances.

Historically, there are rear cases of neutralization. Switzerland was neutralized by the Congress of Vienna 1815, reaffirmed by the Treaty of Versailles in 1919 has been successfully maintain ever since. Belgium and Luxembourg neutralized by the treaties of London 1831 lost their permanently neutral status as a result of First World War. The permanent neutrality of Laos is based on the Declaration and Protocal on the Neutrality of Laos signed at the Geneva Conference of 1962 by the five permanent members of the Security Council and several other states. But it has lost much practical significance because Indochina conflicts and Vietnam War.

1. 1. 1. A neutralized state may become a member of the UN because despite the provisions contained in article 2(5), the Security Council under article 48 may exempt such a neutral state from the performance of its obligation.
      2. Austria ids also a neutralized state and its neutrality has been guaranteed under an int. treaty. Austria has become the member of the UN in 1955.
      3. In 1985, referendum was held to decide as to whether Switzerland should join the UN. The result of referendum was not in favor of joining the UN. Latter, in September 1o, 2002 Switzerland became the UN member.

Neutralization is a legal status under int. law and in this regard it must be distinguished from self-neutralization where by a country follows a policy of permanent neutrality without any legal obligation.

Switzerland which after World War First joined the League of Nations on the condition that it would not take part in League’s military actions or permit the passage of foreign troops over its territory. Prior to its admission to the UN 2002 Switzerland formally refused to take part in UN collective security measures. Now its permanent neutralized policy is going liberal. It joined the NATO. In other hand Austria as a member of the UN enforcement measures and during the Gulf War (1991) even permitted over flights of its territory of Allied aircrafts. It also became (1995) member of EU and joined NATO.

2.1.2 Neutralism:

According to Schwarzenberger, “neutralism is a political and ideal concept, the meaning of which may change in different context and circumstances.” Like neutralism, non-alignment is also a political concept. Neutralism is a policy, practice or attitude of neutrality, non-involvement or non-alignment with power blocs.

Neutralism also called non-alignment, in int. relations, the peace time policy of avoiding political or ideological affiliations with major power blocks. The policy was pursued by many states of Asia and Africa during the period of cold war (1945-1990). These countries refused, for the most part, to align themselves with either the communist bloc, led by the Soviet Union, or the western bloc, led by the United States. Though neutralist in this sense, they were not neutral or isolationist, for they participated actively in int. affairs and took positions on int. issues.

Neutralism as a distinct policy was a post-world war II phenomenon, but similar policies were followed prior to that period. The so-called isolationist policy advocated for the US by presidents George Washington and Thomas Jefferson and pursued during the European wars between France and Great Britain following the French revolution and for a century after the peace of 1815,were analogous to the 20^th century policy of neutralism.

In the second half of the 20^th century, many nations took up the position of neutralism with the meeting at the Bandung Conference(1955) of 29 countries for the purpose of, among other issues, establishing there neutralism, the non-alignment movement was conceived. The first conference of the non-aligned nations was in Belgrade in 1961. That after the growing number of neutral nations meet roughly every three years that after.

The new nations of Asia and Africa which made up of the largest group of neutralist states, were mostly former colonies of the Western European powers. Then new nations were, on the one hand, worry of permanent and close alignments with those powers in the western bloc for fear of being drawn into a newer form of dependence, on the other hand though generally attracted by offers of economic assistance from various communist countries, they fear that intimate ties with the Soviet Union could also threaten their independence. As a practical matter, a neutralist policy often enabled them to get much-needed economic assistance from both power blocs.

The non-alignment movement experienced considerable difficulty in establishing a unified policy on many issues in int. affairs. Many of the member nations were enemies (such as Iran and Iraq) and true non-alignment proved an elusive goal. With the end of the cold war and the breakup of the Soviet Union (1991), neutralism lost much of its usefulness as a guiding principle in many nations’ foreign relations.

1. 1. • Neutrality is an attitude of impartiality as well as legal status. As compared to it neutralism is only used to denote the political attitude of a state.
      • Neutrality is meant non-alignment in war while by neutralism is meant non-involvement in cold war, peace time or war time.
      • Neutralization and neutrality are legal status under the int. law, but neutralism is only a political attitude. It has no significance in law and does not give rise to any rights and duties under int. law. It is a policy through which the neutral states may keep itself away from the cold war going on between different blocs.

2.1.3 Non-alignment:

The non-aligned movement (NAM) is a group of states considering themselves not aligned with or against any major power bloc. A significant event in the development of the NAM was the 1955 Bandung Conference of Asian and African states. The conference adopted a “Declaration on Promotion of World Peace and co-operation”. It was the movement to remain neutral in the cold war. Five principles of Declaration were following:

1. 1. 1. Mutual non-aggression.
      2. Mutual respect for each other’s territorial integrity and sovereignty.
      3. Mutual non-interference in domestic affairs.
      4. Equality and mutual benefit.
      5. Peaceful co-existence.

Six years after Bandung the first conference of head of states and governments of non-aligned countries held in September 1961 in Belgrade and this movement is founded. The term non-alignment appears first in the fifth conference in 1976. Non-alignment movement was never established as a formal organization. The requirements for membership are that the candidate state has displayed practices in accordance with the Bandung principles. NAM has following principles to promote peace and co- operation in the world:

1. 1. 1. Respect for fundamental rights and for the purposes and the principles of the charter of the UN.
      2. Respect for the sovereignty and territorial integrity of all nations.
      3. Recognition of the movements for national independence.
      4. Recognition of the equality of the races and the equality of all the nations large and small.
      5. Abstention from intervention or interference in the internal affairs of another country.
      6. Respect for the right of each nation to defend itself singly or collectively in conformity with the charter of the UN.
      7. Refraining from acts or threats of aggression or the use of force of any country.
      8. Settlements of all disputes by peaceful means, in conformity with the Charter of the UN.
      9. Promotion of mutual interests and co-operation.
      10. Respect for justice and int. obligations.

Consisting of many governments with vastly different ideologies, the NAM is unified by its commitment to world peace and security. The movement described itself as biggest peace movement. The movement places equal emphasis on disarmaments. During the 1970 and early 1980, the NAM also sponsored campaigns for restructuring commercial relation between developed and developing nations, namely the New International Economic Order. Many of the members of the NAM are also members of the UN. Both have a policy of peaceful co-operation.

The purpose of the movement of is to ensure the national independence, sovereignty, territorial integrity of non –aligned countries in their struggle against imperialism, colonialism, neo-colonialism, racism and all forms of aggression, occupation, domination, interference as well as against bloc policies. The countries of the NAM represent nearly two-thirds of the UN’S members and contain 55% of the world population.  Membership is particularly concentrated in countries considered to be developing or part of the third world. The eighteen NAM summit 2019 took place in Azerbaijan. The Nam has 120 members and 25 observers. Its coordinating bureau now is in New York City of US and head of the administrative body is secretary-general. Principal decision making organ of the NAM is conference of Heads of state or Government.

Since end of the cold war and the end of the colonialism, the NAM has been forced to redefine itself and reinvent Purpose in the current world system. The movement has emphasized its principles of multilateralism, equality and mutual non-aggression in attempting to become a stronger voice for the global south, and an instrument that can be utilized to promote the needs member nations at the int. level and strengthen their political power within negotiating with developed nations. It has shifted to focus on the socio-economic challenges facing member states, especially the inequalities manifested by globalization and the implications of neo-liberal policies.

There are following main differences between neutrality and non-alignment:

1. 1. 1. The attitude of neutrality is originated in time of war but the policy of non-alignment is applicable both in time of war and peace.
      2. Neutrality is a legal status and regulated by int. law. Non-alignment is only a policy of the state and depend on by national law and policy.
      3. Neutral state cannot involved in war between belligerent states but non-align country can participate in war. Non-align state has no any legal duty not to participate in war between belligerent states.
      4. Any state who declared its position neutral from war, it should carry out int. responsibilities, if it violated its obligations. But any responsibilities are not arises when non-align state join in any bloc.
      5. By the attitude of neutrality there are arises some rights and duties between neutral state and belligerent states. No any rights and duties are arises by the declaration of non-alignment.

Neutrality is a temporary position which remains until the war is ended, Non-alignment is a policy of a state and remains a long duration of time.

2.3 Neutrality under the UN Charter

UN Charter has greatly affected the old law of neutrality. Many jurists have expressed the view that the Charter of the UN has put an end to the old law of neutrality. When a state resorts to war there can be only two conditions. He can be an aggressor or defender. If he is an aggressor than preventive or enforcement action can be taken against him under the Charter. If he is a defender then he should be assisted by the UN. Thus the member states of the UN cannot not remain neutral. There are following provisions of the UN Charter which have affected the old law of neutrality:

1. 1. 1. The Security Council has been given real power and competence for the application of sanction against a state. Its decisions are binding on all members of the UN. Article 2(5) provides that members shall give to the UN every assistance in any actions it takes in accordance with the present Charter.
      2. Article 25 provides that members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. It means, if the Security Council decides to take any action the member states have carry out the decision. Under such circumstances they cannot remain neutral.
      3. Section VII of the UN Charter has been empowered to ask the member states to assist it. Under such conditions they cannot remain neutral.
      4. Article 51 of the Charter confers upon the member states the right of individual or collective self-defense if an armed attack occurs against as member of the UN.

Although the provisions of the Charter have greatly affected the old law of neutrality, but they have not completely abolished it. Neutrality can still be practiced in the following cases:

1. 1. 1. Incompetency of the Security Council: The Security Council can take enforcement measures against a state which is guilty to have committed a breach of the peace, threat to the peace or act of aggression. It imposes obligation on states to severe economic relations with the guilty state and to assist the victim. In this situation it becomes legally impossible for a state to fulfil the duties of neutrality. But where it fails to take any action or it does not determine that the armed conflict has resulted into threat to the peace or an act of aggression because of the exercise of the ‘veto’ power by the permanent members. In this situation other states may adopt the attitude of neutrality.
      2. Self-defense:- The right of self-defense may be exercised by a state when armed attack occurs against it. A state would continue to use the armed forces in self-defense until the Security Council has taken measures to maintain int. peace and security. But if the Security Council fails to take any measures because of the exercise of the ‘veto’ power, the armed conflict between two states would continue and the other states may adopt the attitude of neutrality.
      3. Domestic jurisdiction: If an armed conflict between the states occurs and it the Security Council determines that the action of a state is a matter of domestic jurisdiction of a state and it has not constituted threat to the peace or if the Security Council fails to take any action, other states may adopt the attitude of neutrality in such armed conflicts.
      4. Unwillingness to participate: In a particular armed conflict, if a state express unwillingness to participate because of its geographical situation or because of poor economic conditions, it would remain neutral. According to the Charter of the UN, Security Council can decide for participation in actions taken by it by all the members of the UN or by some of them.
      5. Non-member of the UN: A non-member is not directed at all either to assist any of the belligerents or to remain neutral. Non-member states may adopt the attitude of neutrality.
      6. Self-determination:- The use of force by a state in order to make a territory independent is permissible under the provisions of the UN Charter. In such cases of armed conflict, other states may adopt the attitude of neutrality.
      7. Recovery of lost territory: If a state has lost some of its territory or it has been occupied by another state by the use of force, in such cases of armed conflict other states may adopt the attitude of neutrality.

The provisions of the Charter have greatly affected the old law of neutrality, but they have not completely abolished it. Neutrality can still be practiced under certain circumstances.

2.4 Rights and duties of a neutral country:

The term neutrality does not mean merely the non-involvement of a state during a war. They have been conferred to rights and duties in relation to belligerents by the rule of int. Law. Rules of neutrality were formulated by the Hague Convention 1907. Following are the rights and duties of the neutral states:

1. 1. Rights of the neutral states:
   2. Inviolability of territory: The most important right of the neutral state is the inviolability of its territory. War-like acts cannot be committed by the belligerents within the territory of the neutral state. It is the duty of a belligerent state not to undertake hostile activities on neutral territory, in neutral water or air space over neutral territory.
   3. Trade with other states: The neutral state is free to carry on trade with states other than belligerents.
   4. Treatment on neutral property: The neutral state has a right to see that its subjects residing in the territory of belligerents are not given ill treatment. Neutral state property lying in the territory of belligerents are not sized and destroyed. Their cable lines in seas, etc. should not be damaged as far as possible. As an unfriendly act. Not to treat asylum
   5. Right to grant asylum:-The neutral state has a right to grant asylum to the members of the armed forces. If asylum is granted to the belligerent troops, they well be disarmed. Also, a neutral state may grant asylum to ship-wrecked, wounded or sick persons belonging to a belligerent. It is a duty of the belligerent state not to treat asylum as an unfriendly act.
   6. Compensation and restoration: Neutral state possess the right that if their neutrality is violated they may get compensation for that. The neutral state has a right to demand the restoration of any property captured within neutral territory as well as the payment of damages resulting from capture.
   7. Duties of the neutral states:
   8. Abstention:-The neutral state must not give any direct or indirect assistance to any of the belligerents. The neutral state has fulfilled its duty of impartiality. It must not supply troops or provide shelter or allow construction or fitting of warships in its territory. A neutral state is required not to lend money or to sell arms and ammunition to any of the belligerents. The neutral state should not permit use of public vehicles of transportation by land or sea to any belligerents.
   9. Prevention: A neutral state is under a duty to prevent any of the belligerents from carrying on certain activities within its territories and territorial sea. It should prevent the preparation of war in favor of the either of the belligerent states. The neutral state should prevent the opening of the recruiting offices on neutral territory in the interest of belligerents. The obligation of neutral state to prevent the commission of any act is based on the ground that the commission of it will amount to participation in the conflict, injurious to one belligerent and favorable to its enemy.
   10. Acquiescence: It is also the duty of the neutral states to give their acquiescence in the legal acts of belligerents as are permitted by the laws of war. They should give their acceptance when a ship using the flag of their states is seized for carrying contraband. If they oppose such seizure it will be deemed to be the violation of the law of neutrality by the neutral state.
   11. Reparation:-It is the duty of the neutral state to pay compensation to the belligerents for the violation of the duty.
   12. Restoration: The neutral state is under a duty not to all any act in their territory connected with the war. If any such act takes place it is their duty to restore it. For instance, if a belligerent captures an enemy vessel in the neutral’s territorial waters, neutral has a duty to restore the vessel to the other belligerent. If the neutral state fails to do so the aggrieved belligerent may ask for compensation or restoration with neutral state.