A Little Neutrality FAQ

Since the Law of Neutrality automatically applies to all states not party to a war, I thought it might be helpful to beware of what this "law" actually is and why we've got it. Here's a little FAQ.

What is the Law of Neutrality?

The Law of Neutrality (NoL) is an old body of treaty law, common law, judicial decisions, and expert opinions on the Dos and Don’ts of third-party interactions with belligerent states on land and the sea. It has its roots in ancient European norms and state practices, such as those codified in the Consolato del Mare depicted above.

The Law of Neutrality (LoN) creates two groups of actors, which are not the two sides of a war, but the war-fighting parties (belligerents) and the non-war-fighting third parties (neutrals).

It contains provisions for both the rights and duties of neutrals and the rights and duties of belligerents. In the pursuit of subduing their enemy, belligerents are not free to do whatever they want to neutral third parties, while neutrals, too, must accept certain duties regarding their peaceful intercourse with belligerents while hostilities between them are ongoing.

Further reading:
Neff, Stephen C. 2005. War and the Law of Nations: A General History. Cambridge: Cambridge University Press.
Müller, Leos. 2019. Neutrality in World History. New York: Routledge.

Is the Law of Neutrality only for Permanent Neutrals like Switzerland?

No. LoN applies to all non-war-fighting third parties during hostilities of other states. This is called ‘occasional neutrality’. All countries not involved in the fighting (states that are not considered belligerents or co-belligerents) are ipso facto neutrals under LoN.

Is a declaration of neutrality required for the Law of Neutrality to take effect?

No. The law of neutrality applies automatically when two states enter a state of war (de jure or de facto). However, declarations of neutrality serve as a pronouncement and often include a catalogue of expectations by neutral third parties about their political approaches and expectations toward the belligerence. They are powerful unilateral tools to communicate national priorities to all belligerent parties. It is highly advisable that states declare their neutrality for political reasons toward the belligerents.

Does the Law of Neutrality really protect third states?

Yes and No. While LoN does protect neutrals in theory from illegal belligerent coercion, a natural thing to happen during wars is that both fighting sides will find themselves at odds with neutral powers who they would want to side with them, not with the enemy. Hence, belligerents usually take various coercive measures (political and military) to pressure neutral parties into adherence with their strategic objectives.

Further reading:

Abbenhuis, Maartje M. 2014. An Age of Neutrals: Great Power Politics, 1815-1914. Cambridge: Cambridge University Press.

So what good does the Law of Neutrality do if it can’t protect neutrals?

Just as there are realpolitical limits on the actual power of LoN to protect neutrals from coercion, there are also limits on what belligerents can (or should) do to neutrals in their pursuit to subdue the enemy. First, the power of the two enemies might cancel each other out and create an incentive for both to keep third parties neutral. Secondly, pushing neutrals too heavy-handedly might cause them to do the inverse and join the enemy’s alliance. The law of neutrality, first and foremost, constitutes a set of minimum requirements that neutral parties can use toward both belligerents to lay out their expectations for not becoming enemies to them.

Further reading:

Upcher, James. 2020. Neutrality in Contemporary International Law. Oxford: Oxford University Press.

Are neutrals allowed to resist coercion from belligerents?

Yes. Sometimes, neutrals even need to use military means to prevent one or the other belligerent from breaking the Laws of Neutrality to maintain their neutral status.

For instance, if a belligerent tries to use the territory (land, sea, or the sky), neutrals must try to prevent that, even if it means resorting to military means against a belligerent. The prevention of the breach of neutrality by a neutral power (even by means of reprisal) does not itself constitute an act of war under international law and does not transform the neutral party (de jure) into a belligerent.

On the contrary, the failure to prevent breaches of LoN might lead the aggrieved belligerent to conclude that the neutral has become a co-belligerent with the primary enemy and begin military action against it, which will also end in the termination of the status of that country’s neutrality. Hence, even if a neutral party is militarily unable to prevent one belligerent’s breach of its neutrality, it must do everything reasonably in its power to oppose it as a means of signaling to the other belligerent that the breach was not accepted or condoned.

Further reading:

Oppenheim, Lassa F.L. 1912. International Law: A Treatise—War and Neutrality. Vol. II. London: Longmans, Green.

What are the main benefits of neutrality?

The law of neutrality grants important rights, especially to maritime nations, during war at sea:

• The territory (including maritime spaces) of neutral states is inviolable.

• Neutral powers are allowed to trade with all belligerents.

• Neutral ships cannot be attacked or searched by belligerents unless in the vicinity of a blockaded port.

• Neutral goods on belligerent ships are protected from seizure by the other belligerent.

• Neutrals are allowed to resist arbitrary trade restrictions.

Is the Law of Neutrality still valid?

Yes. While there is an argument that the advent of the United Nations and the outlawing of war has made LoN obsolete, the fact of war has never disappeared and, hence, just as the “Law of War” did not disappear but was renamed into “International Humanitarian Law”, LoN also remains part of the international code of conduct of states. While multilateral treaties on neutrality have been updated only rarely since the Second World War, national military manuals of many states have continued to publish and update sections on LoN, indicating strongly that it remains accepted state practice also today.

Further reading:

Upcher, James. 2020. Neutrality in Contemporary International Law. Oxford: Oxford University Press.

Does neutrality mean pacifism?

No. Neutrals are not called upon to lay down their weapons or stop defending their territories. On the contrary, the law of neutrality requires states to sometimes defend their neutral territory against belligerent action even with military force. However, the adherence to the laws of neutrality from all sides—by belligerents and neutrals alike—decreases the risk of wars spreading and offers much potential for mediation and conflict resolution. It also rejects collective war-making (including collective self-defense) and reduces the risk of states becoming parties to proxy wars or coalition wars. It represents a de-escalatory and pacifist approach within the principles of international law and international relations.

Further reading:

Neff, Stephen C. 2020. "A Tale of Two Strategies: Permanent Neutrality and Collective Security." In Permanent Neutrality: A Model for Peace, Security, and Justice, edited by Herbert Reginbogin and Pascal Lottaz. Lanham: Lexington Books.

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