Neutrality

NEUTRALITY. - In the etymological sense, n. means an impartial attitude between contending parties; in the specific sense that international law attributes to it, it means the juridical condition of a State that does not participate in a war between other States, toward which it assumes an attitude of impartiality. N. is always connected with an existing state of war, so that it does not take place when other violent means are employed that do not produce war, such as reprisals in peacetime, embargo, and so on. As such it implies an abstention from hostilities and the positive continuation of peaceful relations with all belligerents, conditioned, however, by particular restrictions imposed by the exigencies of war.

N. may be voluntary or contractual, according as it depends either on the simple sovereign determination of a State or on a prior convention; particular, if it concerns a determined conflict, general, if it refers to all; temporary or perpetual, according as it is limited in time or not: unarmed or armed, if the State maintains contingents for every possible eventuality or remains unarmed. Perpetual n. has had particular importance, and its effect is the so-called neutralization of a country, the object of a convention by which, while one State obliges itself to remain neutral in any conflict and toward any State, the others undertake to recognize and respect the juridical condition thus created, as, for example, has happened on various occasions for Belgium, Luxembourg, and Switzerland. For the state of n. to arise, with the relative rights and duties, neither a declaration of war and its notification to the neutral by the belligerents is required in itself, nor an explicit notification by the State that intends to remain extraneous to the conflict, although this is commonly done.

The concept of n. is modern. Ancient Catholic doctrine did not know it. Supported by the distinction between just and unjust war and by the principle that the belligerent in a just war exercises an act of vindicative justice against the violator of the law, it could not conceive an impartial attitude toward wrong and right and therefore admitted the obligation to grant transitus innocens to the belligerent waging a just war, and to deny it to the adversary. The theory became common because of the influence of a celebrated text of St. Augustine, who founded the justification of the conquest of the land of the Amorites by Israel on the ground that they had not granted the harmless passage requested by Moses: « innosus enim transitus negabatur, qui iure humanae societatis aequissimo patere debebat » (In Heptinercum, 54). Grotius substantially repeats the doctrine previously established, while recognizing the necessity of guarantees so that the passage might be effectively harmless. On the impossibility of obtaining these guarantees the concept of n. begins to be grafted, adumbrated by Pufendorf and clearly formulated by Vattel, which after the 17th century would be developed and systematized into an international institution. The evolution is accompanied by the gradual abandonment of the distinction between just and unjust war and by the prevalence of the opposite positivist conception, which has come to consider war as an always lawful act and, therefore, impartiality toward belligerents as a political duty, the parties in conflict exercising a faculty admitted by international law.

N., however, requires a different theoretical justification. While holding firm the classical distinction between just and unjust war, according to the exigencies of morality and law, one cannot deny the difficulty for a third State of investigating on which side justice lies, and moreover, even supposing that it succeeds, one must not lose sight of the obligation that the authority has to avoid the evils that would befall the collectivity if it participated in the conflict. A reason of common good justifies, then, n., to which, besides the difficulty noted, is added the absence of any obligation to set out in search of the motives that moved the belligerents to resort to armed conflict.

The duties and rights connected with the state of n. are summed up (Fifth Hague Convention, 1907) in the immunity of neutral territory from every hostile act of the belligerents: passage of troops, munitions, supplies; installation of means of communication or recruitment of combatants. The neutral is bound to see that all this is observed, but not to prevent the passage across its frontier of isolated individuals, the exportation and transit of what may be useful to the contending parties, nor the use of means of communication of its property, with respect to which, if it establishes restrictions, it must apply them in conformable fashion. It is responsible only for acts committed within its territory, and not for those that its subjects may commit outside. Other norms concern the treatment of soldiers who have crossed the border, who must be disarmed and interned, the sick and wounded, to whom it may permit passage to reach their country of origin. It retains the right to repel every attack on its n., even with the use of arms, without this being able to be considered a hostile act. It is not contrary to n. to employ its good offices with the belligerents.

A change regarding the concept of n. has nevertheless been brought about since the constitution of the League of Nations, whose Covenant, in art. 16, obliged all members to lend mutual aid in the application of economic and financial sanctions against the State that had resorted to war, and to take the necessary measures to facilitate the passage across their territory of the military forces that would participate in the common action, to enforce the commitments undertaken toward the League. An equal provision is contained in the statute of the United Nations, which, in art. 43, commits all members of the organization to place at the disposal of the Security Council, in case it has decided on a collective action, the armed forces, assistance, and facilities, including rights of passage, necessary for the maintenance of peace. Without suppressing the Hague Convention of 1907, which remains in force for States that do not belong to the international organization, both the Covenant and the Statute of the United Nations, with the introduction of a mandatory norm for mutual assistance and with the reservation of the right of passage, incompatible with the concept of n., have introduced a profound juridical innovation, rendering impossible, at least for the members, the state of perpetual n. The foundation of the innovation, which returns in part to the old position of Catholic doctrine, is the principle of international solidarity in the maintenance of peace, which influenced the very creation of the two organisms. An excellent principle, if it were applied with coherence to all the questions that usually divide peoples and cause conflicts.

Antonio Messineo