Rule 139
The fact that a neutral civilian aircraft has submitted to such measures of supervision as the inspection of its cargo and grant of certificates of non-contraband cargo by one Belligerent Party is not an act of unneutral service with regard to the opposing Belligerent Party.
[Commentary]
- This Rule is based on Para. 133 of the SRM/ACS.[708]
- Because of the doubts raised — especially during WWII — as to the consequences of carrying a navicert issued by a Belligerent Party, the Group of Experts considered it necessary to stress that the mere carrying of an “aircert” does not render the neutral civilian aircraft liable to capture by the enemy.
- The expression “unneutral service” is long-standing in the law of international armed conflict, and is defined in detail in Chapter III of the 1909 London Declaration.[709] The thrust of the definition is that the neutral vessel (in this case: aircraft) engages in activities that are inconsistent with its neutral character.
- Para. 133 of the SRM/ACS: “The fact that a neutral civil aircraft has submitted to such measures of supervision as the inspection of its cargo and grant of certificates of non-contraband cargo by one belligerent is not an act of unneutral service with regard to an opposing belligerent.”
Para. 12.89 of the UK Manual contains an identical provision. - Chapter III of the London Declaration is entitled “Unneutral Service”. See, in particular, Art. 45 of the 1909 London Declaration: “A neutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable to condemnation for carriage of contraband: (1) If she is on a voyage especially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy, or with a view to the transmission of intelligence in the interest of the enemy. (2) If, to the knowledge of either the owner, the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in the course of the voyage, directly assist the operations of the enemy. In the cases specified under the above heads, goods belonging to the owner of the vessel are likewise liable to condemnation. The provisions of the present Article do not apply if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers. The vessel is deemed to be aware of the existence of a state of war if she left an enemy port subsequently to the outbreak of hostilities, or a neutral port subsequently to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.”
Categories: U: Neutral Civilian Aircraft
