Hostilities between Belligerent Parties must not be conducted within neutral territory.
[Commentary]
- The prohibition of conducting hostilities within neutral territory is reflected in Art. 1 of the 1907 Hague Convention (V)[768] and in Art. 1 of the 1907 Hague Convention (XIII).[769] It was reaffirmed by Art. 39[770] and Art. 40 of the HRAW,[771] and is today considered to be part of customary international law.[772] In view of the object and purpose of the law of neutrality, to prevent an escalation of an international armed conflict, Belligerent Parties are under a strict obligation to respect the territorial sovereignty of Neutrals.
- The term “neutral territory” comprises the land territory of Neutrals as well as sea areas which are under the territorial sovereignty of the neutral coastal State, i.e. internal waters, territorial sea and, where applicable, archipelagic waters, and the airspace above those areas. It needs to be emphasized that the prohibition of conducting hostilities within neutral territory is without prejudice to the passage rights Belligerent Parties continue to enjoy in and over international straits and archipelagic sea lanes.
- Although States have certain sovereign rights in the EEZ, they do not enjoy territorial sovereignty therein (see paragraph 8 of the Commentary on Rule 1 (b)). Accordingly, it is not prohibited to conduct hostilities in the EEZ of a Neutral or in international airspace above that EEZ (see Para. 34[773] and Para. 35[774] of the SRM/ACS). This, however, does not mean that Belligerent Parties are entitled to disregard altogether the sovereign rights of the neutral coastal State. Belligerent Parties are obliged to pay “due regard” to the rights and duties of neutral coastal States, inter alia, for the exploration and exploitation of the economic resources of the EEZ and the protection and preservation of the marine environment. This obligation especially applies with respect to safety zones established around artificial islands, installations and structures in the EEZ of Neutrals (see also Rule 107 (e)).[775] The “due regard” principle imposes no absolute obligation. Instead, Belligerent Parties are supposed to balance the military advantages anticipated as against any negative impact on the rights of Neutrals.
- Art. 1 of 1907 Hague Convention (V): “The territory of neutral Powers is inviolable.”
- Art. 1 of 1907 Hague Convention (XIII): “Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.”
- Art. 39 of the HRAW: “Belligerent aircraft are bound to respect the rights of neutral Powers and to abstain within the jurisdiction of a neutral state from the commission of any act which it is the duty of that state to prevent.”
- Art. 40 of the HRAW: “Belligerent military aircraft are forbidden to enter the jurisdiction of a neutral state.”
- See, e.g., Para. 7.3. of NWP: “As a general rule of international law, all acts of hostility in neutral territory, including neutral lands, neutral waters, and neutral airspace, are prohibited. A neutral nation has the duty to prevent the use of its territory as a place of sanctuary or a base of operations by belligerent forces of any side. If the neutral nation is unable or unwilling to enforce effectively its right of inviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities of enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorized to act in self-defense when attacked or threatened with attack while in neutral territory or when attacked or threatened from neutral territory.”
- Para. 34 of SRM/ACS: “If hostile actions are conducted within the exclusive economic zone or on the continental shelf of a neutral State, belligerent States shall, in addition to observing the other applicable rules of the law of armed conflict at sea, have due regard for the rights and duties of the coastal State, inter alia, for the exploration and exploitation of the economic resources of the exclusive economic zone and the continental shelf and the protection and preservation of the marine environment. They shall, in particular, have due regard for artificial islands, installations, structures and safety zones established by neutral States in the exclusive economic zone and on the continental shelf.”
- Para. 35 of SRM/ACS: “If a belligerent considers it necessary to lay mines in the exclusive economic zone or the continental shelf of a neutral State, the belligerent shall notify that State, and shall ensure, inter alia, that the size of the minefield and the type of mines used do not endanger artificial islands, installations and structures, nor interfere with access thereto, and shall avoid so far as practicable interference with the exploration or exploitation of the zone by the neutral State. Due regard shall also be given to the protection and preservation of the marine environment.”
- Art. 60 (4) and (6) of UNCLOS (“Artificial islands, installations and structures in the exclusive economic zone”): “(4) The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. … (6) “All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.”
(a) Belligerent Parties are prohibited in neutral territory to conduct any hostile actions, establish bases of operations or use such territory as a sanctuary. Furthermore, neutral territory must not be used by Belligerent Parties for the movement of troops or supplies, including overflights by military aircraft or missiles, or for operation of military communication systems.
[Commentary]
(b) However, when Belligerent Parties use for military purposes a public, internationally and openly accessible network such as the Internet, the fact that part of this infrastructure is situated within the jurisdiction of a Neutral does not constitute a violation of neutrality.
[Commentary]
- This Rule specifies the general prohibition of conducting hostilities in neutral territory. It is based on Art. 2[776] and Art. 3[777] of the 1907 Hague Convention V; Art. 2[778] and Art. 5[779] of the 1907 Hague Convention XIII; Art. 39,[780] Art. 40,[781] Art. 42,[782] and Art. 47 of the HRAW,[783] and corresponding customary international law.[784]
- The activities referred to in Rule 167 (a) are prohibited in an absolute manner. The Neutral is not entitled to give its consent to such activities. Should it nevertheless do so, this will be in breach of the law of neutrality.
- The provisions of UNCLOS concerning maritime regimes continue to apply. Accordingly, belligerent warships may still exercise the right of innocent passage in neutral territorial sea. However, innocent passage is strictly defined in UNCLOS. Thus, Belligerent Parties may not engage in activities such as “launching, landing, or taking on board of any aircraft” or of “any military device”.[785]
- Art. 2 of the 1907 Hague Convention (V): “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.”
- Art. 3 of the 1907 Hague Convention (V): “Belligerents are likewise forbidden to: (a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea; (b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.”
- Art. 2 of the 1907 Hague Convention (XIII): “Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden.”
- Art. 5 of the 1907 Hague Convention (XIII): “Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea.”
- Art. 39 of the HRAW, see fn. 770.
- Art. 40 of the HRAW, see fn. 771.
- Art 42 of the HRAW: “A neutral government must use the means at its disposal to prevent the entry within its jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction. A neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.”
- Art. 47 of the HRAW: “A neutral state is bound to take such steps as the means at its disposal permit to prevent within its jurisdiction aerial observation of the movements, operations or defenses of one belligerent, with the intention of informing the other belligerent.”
- Para. 7.3 of NWP, see fn. 793.
- Art. 19 (2) of UNCLOS (“Meaning of Innocent Passage”): “Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; …”
- The Group of Experts could not identify either express treaty law or customary international law to substantiate Rule 167 (b). However, according to Art. 8 of the 1907 Hague Convention (V), a “neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals”. The Group of Experts was convinced that a similar Rule could be extrapolated to the Internet.
- Given the complexity and interdependence of an openly accessible network such as the Internet, it is impossible for any State to effectively control or interfere with communications over such a network. After all, most Internet communications are not traceable, since they are transmitted over lines of communications and routers passing through various States before reaching their ultimate destination. Therefore, the mere fact that military communications, including CNAs, have been transmitted via a router situated in the territory of a Neutral is not to be considered a violation of neutrality.
(a) A Neutral must not allow any of the acts referred to in Rule 167 (a) to occur within its territory and must use all the means available to it to prevent or terminate them.
[Commentary]
(b) If the use of the neutral territory or airspace by a Belligerent Party constitutes a serious violation, the opposing Belligerent Party may, in the absence of any feasible and timely alternative, use such force as is necessary to terminate the violation of neutrality.
[Commentary]
- Rule 168 (a) reemphasizes that any military use of neutral territory or airspace will constitute a violation of the law of neutrality under Section X. If a Neutral desires to remain protected by the law of neutrality, it is not allowed to consent to an abuse of its territory. The Neutral’s obligation to “not allow any of the acts referred to in Rule 167 (a) to occur within its territory” is based on Art. 5 of the 1907 Hague Convention (V),[786] and on Art. 42 of the HRAW.[787] It also reflects customary international law.[788]
- Moreover, a Neutral whose territory is abused by one of the Belligerent Parties is under an affirmative obligation to use the means at its disposal to prevent any breaches of its neutral status under Section X. This part of Rule 168 (a) is based on Art. 8 of the 1907 Hague Convention (XIII),[789] as well as on Art. 42[790] and Art. 47 of the HRAW.[791] It also reflects customary international law.[792]
- Depending on the circumstances, the means to be used by a Neutral whose territory is abused by one of the Belligerent Parties may range from diplomatic steps up to the use of force (see also Rule 170).
- Art. 5 of the 1907 Hague Convention (V): “A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory.”
- Art. 42 of the HRAW, see fn. 805.
- Para. 22 of the SRM/ACS: “Should a belligerent State be in violation of the regime of neutral waters, as set out in this document, the neutral State is under an obligation to take the measures necessary to terminate the violation. If the neutral State fails to terminate the violation of its neutral waters by a belligerent, the opposing belligerent must so notify the neutral State and give that neutral State a reasonable time to terminate the violation by the belligerent. If the violation of the neutrality of the State by the belligerent constitutes a serious and immediate threat to the security of the opposing belligerent and the violation is not terminated, then that belligerent may, in the absence of any feasible and timely alternative, use such force as is strictly necessary to respond to the threat posed by the violation.”
- Art. 8 of the 1907 Hague Convention (XIII): “A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war.”
- Art. 42 of the HRAW, see fn. 805.
- Art. 47 of the HRAW, see fn. 806.
- Para. 7.3 of NWP, see fn. 793.
Para. 15 of SRM/ACS: “Within and over neutral waters, including neutral waters comprising an international strait and waters in which the right of archipelagic sea lanes passage may be exercised, hostile actions by belligerent forces are forbidden. A neutral State must take such measures as are consistent with Section II of this Part, including the exercise of surveillance, as the means at its disposal allow, to prevent the violation of its neutrality by belligerent forces.”
Also, see Para. 18 of the SRM/ACS: “Belligerent military and auxillary aircraft may not enter neutral airspace. Should they do so, the neutral State shall use the means at its disposal to require the aircraft to land within its territory and shall intern the aircraft and its crew for the duration of the armed conflict. Should the aircraft fail to follow the instructions to land, it may be attacked, subject to the special rules relating to medical aircraft as specified in paragraphs 181–183.”
Finally, see also Para. 22 of SRM/ACS, see fn. 788.
- If a Neutral is either unwilling or unable to prevent or terminate a violation of its neutral status by a Belligerent Party, the aggrieved Belligerent Party is entitled to take the measures necessary to terminate that violation, including — where necessary — the use of force.[793] It follows that, in these exceptional situations, the inviolability of neutral territory is not enforced by the respective Neutral but by the aggrieved Belligerent Party. Where feasible, such measures of “substitutional” enforcement of the law of neutrality are subject to a prior warning and a reasonable time given to the Neutral to terminate the violation.[794] If the violation of the neutral status by a Belligerent Party constitutes an immediate threat to the security of the enemy, the latter may, in the absence of any feasible and timely alternative, use such force as is necessary to terminate the violation.[795]
- Once the conditions spelled out in Rule 168 (b) are met, and a Belligerent Party uses such force as is necessary to terminate a violation of neutrality, its action is not to be regarded by the Neutral as an “armed attack” in the sense of Art. 51 of the UN Charter.[796] Consequently, in these circumstances, the Neutral does not have a right of self-defence against the acting Belligerent Party.
- Para. 22 of the SRM/ACS, see fn. 788.
Para. 7.3 of NWP: “As a general rule of international law, all acts of hostility in neutral territory, including neutral lands, neutral waters, and neutral airspace, are prohibited. A neutral nation has the duty to prevent the use of its territory as a place of sanctuary or a base of operations by belligerent forces of any side. If the neutral nation is unable or unwilling to enforce effectively its right of inviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities of enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorized to act in self-defense when attacked or threatened with attack while in neutral territory or when attacked or threatened from neutral territory.”
- Note that the requirements of warning and time limit are recognized in the UK Manual and in the SRM/ACS but not in NWP.
See Para. 13.9E of the UK Manual: “Should a belligerent State be in violation of the regime of neutral waters, as set out in this manual, the neutral State is under an obligation to take the measures necessary to terminate the violation. If the neutral state fails to terminate the violation of its neutral waters by a belligerent, the opposing belligerent must so notify the neutral State and give that neutral State a reasonable time to terminate the violation by the belligerent. If the violation of the neutral of the State by the belligerent constitutes a serious and immediate threat to the security of the opposing belligerent and the violation is not terminated, then that belligerent may, in the absence of any feasible and timely alternative, use such force as is strictly necessary to respond to the threat posed by the violation.”
- Para. 22 of SRM/ACS, see fn. 788.
- Art. 51 of the UN Charter, see fn. 41.
The fact that a Neutral resists, even by force, attempts to violate its neutrality cannot be regarded as a hostile act. However, the use of force by the Neutral must not exceed the degree required to repel the incursion and maintain its neutrality.
[Commentary]
- Rule 169 is based on Art. 10 of the 1907 Hague Convention (V),[797] Art. 26 of the 1907 Hague Convention (XIII),[798] and Art. 48 of the HRAW.[799] It is also considered to reflect customary international law. Measures taken by a Neutral against a Belligerent Party that is acting in violation of its duty to respect neutral territory are not to be considered unlawful. More specifically, if the Neutral resorts to the use of force against the Belligerent Party, the latter cannot consider those acts of the Neutral as an “armed attack” triggering the right of self-defence under jus ad bellum.[800] Consequently, the Belligerent Party is under an obligation to either tolerate such enforcement measures or to immediately terminate the violation.
- While the Neutral may use force in order to terminate a violation, it is obliged to strictly observe the constraints of the situation. If the measures taken by the Neutral exceed what is necessary for terminating the violation of its neutral status, the affected Belligerent Party is entitled to take countermeasures. This requirement is due to the object and purpose of the law of neutrality that, inter alia, aims at preventing an escalation of an international armed conflict.
- Art. 10 of the 1907 Hague Convention (V): “The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be regarded as a hostile act.”
- Art. 26 of the 1907 Hague Convention (XIII): “The exercise by a neutral Power of the rights laid down in the present Convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles relating thereto.”
- Art. 48 of the HRAW: “The action of a neutral Power in using force or other means at its disposal in the exercise of its rights or duties under these Rules cannot be regarded as a hostile act.”
- Art. 51 of the UN Charter, see fn. 41.
