Rule 169
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.
Categories: X: General Rules
