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Published online by Cambridge University Press: 20 April 2017
Despite a widespread hope that in the United Nations mankind had created an organization which would eliminate warfare, events have unfortunately proved that international conflict, with all its attendant legal problems, is not yet a dead issue. Although the United Nations has not extirpated armed conflict, it has, by its very existence and by its actual and potential role as a participant in, and even as an originator of, military actions, altered, of necessity, the status both of Members and nonMembers in the course of such an action. This is a study of that status, together with a consideration of the necessary concomitant changes in the concept of neutrality in the modern world. The laws of neutrality will first be briefly considered; the effect of the League of Nations period will then be examined as background for a comparison with the current period; and the effect and influence of the United Nations will then be studied in greater detail.
1 Convention on Maritime Neutrality, 6th International Conference of American States, 1928, 4 Hudson, International Legislation 2401.
2 Art. 1(c), Harvard Research Draft Convention on the Bights and Duties of Neutral States in Naval and Aerial War, this Journal, Supp., Vol. 33 (1939), pp. 167, 178.
3 Ibid., Comment, at p. 212.
4 Hague Convention of 1907 with Eespect to the Eights and Duties of Neutral Powers and Persons in Case of War on Land, Scott, Texts of the Peace Conferences at The Hague, 1899 and 1907, p. 230; this Journal, Supp., Vol. 2 (1908), p. 117.
5 Jessup, American Neutrality and International Police (1928), p. 14.
6 Ibid., at p. 24. The neutral government was not to send war contraband, however. Moore, “The New Isolation,” this Journal, Vol. 27 (1933), pp. 607, 625.
7 Declaration of Paris of 1856, 7 Moore, Digest of International Law 561–562.
8 Jessup, A Modern Law of Nations (1948), p. 200.
9 Report of the Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, The Hague, 1923, this Journal, Supp., Vol. 32 (1938), p. 1.
10 This Journal, Supp., Vol. 33 (1939), p. 167. However, a principal duty set forth in the Harvard Draft was that a neutral should be impartial (Art. 4) which, though not a new concept, perhaps amounts to an implicit acknowledgment of the inadequacy of the previously delineated definitions and rules of neutrality.
11 Jessup, American Neutrality and International Police (1928), p. 65.
12 Art. 16 (1): “Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13, or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not.”
13 League of Nations Official Journal, Sept. 1920, p. 308, as quoted by Lalive, “International Organization and Neutrality,” 24 British Yearbook of Int. Law (1947) 75, footnote 2.
14 2 Oppenheim, International Law 506 (6th ed., Lauterpacht, 1940); Briggs, The Law of Nations (1938), pp. 865–866; Jessup, American Neutrality and International Police (1928), p. 66.
15 Jessup, op. cit., pp. 66, 72.
16 Lalive, “International Organization and Neutrality,” loc. cit., p. 72.
17 Editorial note, “The Present Position of Neutral States,” 1 Int. Law Quarterly (1947) 212. The Swiss, as a matter of fact, went so far as to forbid the passage of international troops (there were no League of Nations troops) at the time of the Vilna incident in 1920, asserting their rights and duties as neutrals. Bonjour, Swiss Neutrality (1946), p. 115.
18 Reports and Resolutions on the Subject of Article 16 of the Covenant, League of Nations Doe. A. 14.1927.V, pp. 37–38.
19 Ibid.
20 “The Committee is of the opinion that the unilateral action of the defaulting State cannot create a state of war. … If it is admitted that a state of war does not exist, ipso facto, between the defaulting State and the other Members of the League, it follows that those relations, the severance of which is not provided for by Article 16, may continue to exist.” Id. at p. 17.
This, however, it should be noted, remains a right limited by Art. 16. The report further states: “With regard to non-Members, it is, in the Committee’s opinion, important that every possible effort should be made to arrive at arrangements which will at least insure their passive cooperation with the measures to be taken. … Id. at p. 21.
21 Id. at p. 86.
22 Id. at pp. 86–87.
23 Id. at p. 88.
24 See note 14, supra.
25 E.g.: Convention on Maritime Neutrality, 4 Hudson, International Legislation 2401; Geneva Convention of 1929, 5 Hudson, International Legislation 1. See Moore, “The New Isolation,” this Joubnal, Vol. 27 (1933), pp. 607, 622–625.
26 Toynbee, Survey of International Affairs (1933), pp. 393, 409. The nations were Chile, Argentina, Brazil and Peru.
27 4 Hudson, International Legislation 2522.
28 In his address at the Inter-American Bar Association meeting of March 27, 1941, at Havana, the then Attorney General of the United States, Robert H. Jackson, said: “The Treaty for the Renunciation of War and the Argentine Anti-War Treaty deprived their signatories of the right of war as an instrument of national policy or aggression and rendered unlawful wars undertaken in violation of their provisions. In consequence, these treaties destroyed the historical and juridical foundations of the doctrine of neutrality conceived as an attitude of absolute impartiality in relation to aggressive wars. It did not impose upon the signatories the duty of discriminating against an aggressor, but it conferred upon them the right to act in that manner.” This Journal, Vol. 35 (1941), p. 354. For criticism of this view, see Borchard, “War, Neutrality and Non-Belligerency,” ibid., p. 618.
29 Jessup, “Is Neutrality Essential?”, Proceedings, American Society of International Law, 1933, p. 141. The question was discussed at the 1933 meeting. See ibid., pp. 134–174. A contrary view was expressed by Professor Eagleton. For discussion of various problems of neutrality in this period see Proceedings, American Society of International Law, 1935, pp. 1–153.
30 League of Nations Official Journal, Spec. Supp. 151 (1936), Annex 1, p. 72.
31 Ibid.
32 The first raised the arms embargo on shipments to Ethiopia and placed one on the export to Italy of arms, ammunition and war materials. The second placed an embargo on loans and credits by Member Governments to Italy. The third prohibited imports of all goods made or grown in Italy. The fourth prohibited the export to Italy of rubber, horses, tin, bauxite and other similar goods. The fifth, adopted somewhat later, required the Members applying sanctions to support each other financially. Ibid., Spec. Supp. 150 (1936), pp. 2, 3, 4–5, 6–8, 9–10, 11–12.
33 Fifty-two Members accepted the first and second proposals; fifty accepted the third; fifty-one accepted the fourth; and forty-six accepted the fifth. League of Nations Official Journal, Spec. Supp. 151 (1936), pp. 86, 90.
34 Id. at p. 86, footnote 1.
35 M. Litvinoff, Soviet Representative in the Assembly, Records of the 16th Session of the Assembly, ibid., p. 36.
36 League of Nations Official Journal, Spec. Supp. 146 (1936), p. 13.
37 See Wright, “The Test of Aggression in the Italo-Ethiopian War,” this Journal, Vol. 30 (1936), pp. 45, 49–50.
38 League of Nations Official Journal, Spec. Supp. 150 (1936), pp. 328–331.
39 Id. at p. 327.
40 Id. at p. 327.
41 Id. at p. 315. See Proceedings, American Society of International Law, 1940, p. 46, and discussion, pp. 21–53.
42 2 Oppenheim, International Law (6th ed. Lauterpacht, 1940), pp. 503–504.
43 For a statement of the situation in 1940, see Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), p. 391; note especially conclusions, pp. 414–415.
44 Editorial note, “The Present Position of Neutral States,” 1 Int. Law Quarterly (1947) 212.
45 Brierly, The Outlook for International Law (1944), p. 93.
46 Principle 8, “The International Law of the Future—Postulates, Principles and Proposals,” this Journal, Supp., Vol. 38 (1944), pp. 41 ff.
47 U.N.C.I.O. Doc. 739, I/1/A/19 (a), p. 6 (Vol. 6, p. 722).
48 “The vote was taken on the understanding that the association of the United Nations, representing the major expression of the international legal community, is entitled to act in a manner which will ensure the effective cooperation of non-Member states with it, so far as that is necessary for the maintenance of international peace and security.” Ibid.
49 U.N.C.I.O. Doc. 933, IV/2/44 (2) (Vol. 13, p. 708).
50 Belgian delegate, Summary Eeport of the 12th Meeting of Committee I/1, U.N.C.I.O. Doc. 810 (Vol. 6, p. 348).
51 Kelsen, The Law of the United Nations (1950), p. 107.
52 Id. at pp. 109–110. This is apparently also the view of Goodrich and Hambro, Charter of the U.N., Commentary and Documents (1949), pp. 108–109. But cf. opinion of Belgian delegate, supra, footnote 50.
53 Id. at pp. 708–709.
54 Jessup, A Modern Law of Nations (1948), p. 168.
55 “The Present Position of Neutral States,” 1 Int. Law Quarterly (1947) 212 at 214.
56 Lalive, “International Organization and Neutrality,” 24 British Yearbook of Int. Law (1947) 72 at 85.
57 United Nations General Assembly, Doc. A/285.
58 Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, U.N. Doc. A/CN. 4/2 (1948), pp. 37–38.
59 United Kingdom Delegation to the U.N., letter of Aug. 24, 1948, id. at p. 92.
60 “Articles 19 and 20 ought not to appear in the proposed declaration, since the obligations in question are established by particular international law (Charter of the United Nations) and not by general international law. The Creek Government thinks it inadvisable to include in the declaration principles which are laid down solely by particular international law, but are not recognized by general international law. In its opinion, a proclamation of such general scope as the declaration in question should be confined to principles which can be based on general international law or on generally accepted postulates.” Greek Government, letter of Sept. 4, 1947, id. at p. 115.
61 “The Charter of the United Nations creates an obligation on the part of Member States to assist when action is taken in accordance with the Charter. The proposed article is much broader. The obligation to assist would exist with respect to ‘whatever action’ the ‘Community of States’ undertakes. An organization of the entire community of States is presupposed. States may not be willing to agree to ‘every kind of assistance in whatever action’ the unorganized ‘Community of States’ may take. …” U. S. Department of State, letter of March 11, 1949, id. at pp. 208–209.
62 International Law Commission, Summary Records, U.N. Doc. A/CN.4/SE.9 (Apr. 25, 1949), p. 15.
63 Ibid., U.N. Doc. A/CN.4/SR.15 (May 9, 1949), p. 7. (Italics added.)
64 Ibid., U.N. Doc. A/CN.4/SR.9, p. 15.
65 Ibid., U.N. Doc. A/CN.4/SB.15, pp. 3, 6.
66 Id. at p. 3.
67 International Law Commission, Summary Becords, U.N. Doc. A/CN.4/SR.20 (May 13, 1949), pp. 6, 20.
68 Ibid., U.N. Doc. A/CN.4/SB.15, p. 7.
69 Beport of the International Law Commission, General Assembly, 4th Sess., Supp. 10 (A/925), p. 8 (1949); this Journal, Supp., Vol. 44 (1950), p. 17.
70 International Law Commission, Summary Becords, U.N. Doe. A/CN.4/SB.20, p. 8.
71 Ibid., U.N. Doc. A/CN.4/SR.19 (May 12, 1949), p. 2.
72 General Assembly, 4th Bess., Official Records, Sixth Committee, p. 175 (1949). Compare, however, supra, page 385 and footnote 50.
73 Id. at pp. 181, 182, 185, 190, 205, 226.
74 Id. at pp. 178, 199, 200, 215, 223, 225, 241.
75 Id. at p. 166.
76 International Law Commission, Summary Eecords, U.N. Doc. A/CN.4/SR.25 (June 1, 1949), pp. 3, 6.
77 Report of the International Law Commission, General Assembly, 4th Sess., Supp. 10 (A/925), p. 9 (1949).
78 General Assembly, Doc. A/1220 (Dec. 7, 1949).
79 See, generally, Kelsen, “ The Draft Declaration on Bights and Duties of States,” this Journal, Vol. 44 (1950), p. 259.
80 On this distinction, see, generally, Lalive, “International Organization and Neutrality,” loc. cit., p. 72. In considering the problem of the continuing existence of a status of neutrality, the only actions within the scope of this note are those carried out by the international force created under Art. 43 or by a force assembled by United Nations direction, under United Nations supervision and responsible to the United Nations, such as the army engaged in Korea (see infra, page 395) and possibly such a one as envisaged by the General Assembly in the “Uniting for Peace” resolution (General Assembly, Doc. A/1481 (Nov. 4, 1950); this Journal, Supp., Vol. 45 (1951), p. 1).
81 Security Council, Official Records, 485th Meeting (Aug. 10, 1950), p. 9.
82 E.g., Statement of Y. Malik, ibid., 497th Meeting (Sept. 7, 1950), p. 9.
83 Security Council, Doc. S/1501, June 25, 1950.
84 Ibid., Doc. 8/1511, June 27, 1950.
85 General Assembly, Doc. A/1481 (Nov. 4, 1950). E.g., “15. Urges Member States to respect fully, and to intensify, joint action, in co-operation with the United Nations. …”
86 General Assembly, First Committee, Doc. A/C.1/597/Rev. 1, Oct. 28, 1950.
87 Security Council, Doc. S/1894, Nov. 10, 1950.
88 Report of the Collective Measures Committee, General Assembly, Official Records, 6th Sess., Supp. No. 13 (A/1891), 1951. In this report the Committee also proposed that in applying economic and political collective measures against an aggressor, every State, Member or non-Member should participate. Id. at pp. 11, 12, 13, 14, 21 (italics added).
89 Statement by the Italian Ambassador to the United States, A. Tarchiani: “In spite of not being a Member, we thought it appropriate to say immediately that the United States in their action fulfilling the decision of the United Nations for Korea has the full solidarity of the Italian nation.” N. Y. Times, July 2, 1950, p. 3, col. 2.
90 Ibid., July 9, 1950, p. 18, col. 1.
91 Ibid., July 4, 1950, p. 1, col. 7.
92 Ibid., July 6, 1950, p. 12, col. 7. The Arab League attitude was apparently dictated by resentment against United Nations’ handling of the Palestine question and does not necessarily indicate a legal position by these states that they could not be bound. Lebanon announced support on July 7, however (N. Y. Times, July 8, 1950, p. 4, col. 1), and Egypt gave limited support on July 11, although indicating that it would maintain a “neutral” position (ibid., July 12, 1950, p. 13, col. 3).
93 See U. N. Doc. A/1822, June 25, 1951, and Additions 1 through 9, and Report of the United Nations Commission for the Unification and Rehabilitation of Korea, General Assembly, Official Records, 6th Sess., Supp. No. 12 (A/1881), 1951, Annex VIII; see also N. Y. Times, Oct. 26, 1951, p. 2, col. 7.
94 Report of the Collective Measures Committee (cited supra, note 88), p. 46.
95 Letter of Nov. 11, 1950, from the Chinese People’s Republic, Security Council Doc. S/1902, p. 3 (Nov. 15, 1950); statements by A. Vyshinsky, N. Y. Times, Nov. 8, 1950 (p. 32, col. 4), Dec. 7, 1950 (p. 3, col. 5); Dec. 10, 1950 (p. 6, col. 1). In ceasefire negotiations, Chinese officers present have been denominated representatives of Chinese volunteer forces.
96 As has been pointed out, the position of the Chinese Government is of course complicated by the fact that the government in control of China proper is not the government representing China in the United Nations.
97 U.N. Doc. A/1771, Feb. 1, 1951.
98 See, for example, statement by Egyptian representative, Committee on Collective Measures, U.N. Doc. A/AC.43/SR.1, p. 6.
99 This resolution has also been attacked as illegal by Communist China (U.N. Doe. A/1782, Feb. 23, 1951), and by the Soviet Union (U.N. Doc. A/1808, May 29, 1951).
100 U.N. Doc. A/1805, May 21, 1951 (italics added).
101 The resolution has also been attacked as illegal by the Soviet Union (U.N. Doe. A/1808, May 29, 1951) and the Soviet satellites (U.N. Docs. A/1811, June 1, 1951 (Poland); A/1813, June 4, 1951 (Czechoslovakia); A/1818, June 12, 1951 (Byelorussia); A/1819, June 12, 1951 (Ukraine)).
102 Members complying: Australia, Belgium, Brazil, Canada, Chile, China, Colombia, Cuba, Denmark, El Salvador, Ethiopia, France, Greece, Haiti, Honduras, Iceland, Indonesia, Iran, Iraq, Israel, Lebanon, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Pakistan, Paraguay, Peru, Philippines, Sweden, Thailand, Turkey, Union of South Africa, United Kingdom, United States of America, Uruguay, Venezuela, Yemen, Yugoslavia.
Non-Members complying: Federal Republic of Germany, Italy, Japan, Laos, Spain, Viet Nam.
Ecuador, Panama, Austria, Finland, and Jordan merely acknowledged the resolution. The Soviet Union and the Soviet satellites believe the resolution to be illegal. See supra, footnote 101 (Albania, Hungary and Rumania agreed with this position).
Burma and India abstained on the vote on the resolution. Both report no trade with China in the banned items (as does Cambodia) but neither seems very cordial to the embargo. See Reports from Governments on Measures taken in accordance with General Assembly Res. 500 (V), U.N. Docs. A/1841, July 12, 1951; A/1841, Add. 1, July 25, 1951; A/1841, Add. 2, Aug. 9, 1951; A/1841, Add. 3, Sept. 28, 1951; A/1841, Add. 4, Oct. 23, 1951; A/1841, Add. 5, Dec. 12, 1951.
103 Supra, footnote 92.
104 On Dec. 2, 1951, the Communist negotiators for a cease-fire in Korea suggested that “neutrals” be used to police the proposed armistice (N. Y. Times, Dec. 3, 1951, p. 1, col. 8). On Dec. 5, they named Poland and Czechoslovakia as “neutrals” of their choice and conceded that Denmark, Sweden and Switzerland might be considered “neutrals” (ibid., Dec. 6, 1951, p. 1, col. 1). All except Switzerland are U.N. Members and Denmark and Sweden have contributed a hospital ship and a military hospital to the action. On Dec. 11, the U.N. negotiators accepted “neutral” control (ibid., Dec. 12, 1951, p. 1, col. 8) and the United States, on Dec. 15, notified Switzerland, Sweden and Norway (rather than Denmark) that they would be acceptable to the U.N. Command, though they were referred to as “non-belligerent” rather than “neutral” (ibid., Dec. 15, 1951, p. 2, col. 4).
The more recent plans evolved by the U.N. Command and the Communist forces for a truce also depend on the use of “neutral” states. In April, 1953, the U.N. proposed a nation such as Switzerland to take custody of prisoners refusing repatriation (ibid., April 15, 1953, p. 1, col. 7), but the Communists rejected Switzerland as not a “real neutral” since it had been earlier nominated by the “Allies” as one of the countries to supervise an armistice (ibid., April 27, 1953, p. 1, col. 8). On May 2, the Communists listed India, Pakistan, Burma and Indonesia as Asian nations considered “neutral” in the Korean war (all being U.N. Members) and said that Switzerland, Sweden, Poland and Czechoslovakia were still considered neutral too (ibid., May 2, 1953, p. 1, col. 8). On May 4, the U.N. Command asked for the acceptance of Pakistan “as the neutral nation,” and insisted again on turning the captives over to the custody of a “neutral” in Korea rather than moving them to the neutral nation (ibid., May 4, 1953, p. 1, col. 8, and May 5, 1953, p. 1, col. 8; see id., p. 3, col. 1, for the views of the Asian nations). On May 7, the Communists proposed that a 5-nation “neutral” repatriation commission consisting of Czechoslovakia, Poland, Switzerland, Sweden and India take custody in Korea of prisoners who refuse to go home (ibid., May 7, 1953, p. 1, col. 8), and on May 13, the U.N. Command sharply revised the Communist plan but accepted the 5-nation commission, calling it a “prisoner of war repatriation commission” and not referring to the nations as “neutrals” (ibid., May 14, 1953, p. 4, col. 2 ff.) It was also insisted that India alone should send troops to Korea and should have operational control of all detention forces. This proposal was termed “absolutely unacceptable” by the Communists (ibid., p. 4, col. 6), but on June 8 an agreement along these lines was arrived at (Department of State Bulletin, Vol. 28, No. 730, p. 866.)
The action of the U.N. Command in this matter is obviously one of expediency and does not detract from the arguments above presented. If the employment of the services of certain Powers can bring the conflict to an honorable conclusion, it might well prove a wise policy for the U.N. Command—no precedent is necessarily involved, since this is not in fact a full action by the “unified forces of the world” (as indicated by the earlier Communist suggestion that the Soviet Union serve as a “neutral” too). It is unfortunate, however, that the U.N. has used the term “neutral” for non-participants without making clear that, certainly for Members, old-style neutrality could not be considered as consonant with Charter obligations.
105 Their persistence is recognized in the four conventions signed on behalf of most of the world’s nations at Geneva on Aug. 12, 1949, each of which makes numerous references to “neutrals” and “neutral Powers”; e.g., Condition of the Wounded in the Field, Arts. 4, 43; Condition of the Wounded at Sea, Arts. 5, 32; Protection of Civilians, Arts. 4, 11; Treatment of Prisoners of War, Arts, 10, 110, 111, U. S. Department of State Publication No. 3938 (1950). See also footnote 104, above.
106 Grob, The Relativity of War and Peace (1949), p. 165; supported by Jessup, “International Law of the Air: Neutral Rights and Duties,” Proceedings, American Society of International Law, 1938, p. 86 at p. 89.
107 See, e.g., Eagleton, “Punishment of War Criminals by the United Nations,” this Journal, Vol. 37 (1943), pp. 495 ff.
