Rule 166
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.”
Categories: X: General Rules
