Rule 173

A Neutral is not bound to prevent the private export or transit on behalf of a Belligerent Party of aircraft, parts of aircraft, or material, supplies or munitions for aircraft. However, a Neutral is bound to use the means at its disposal:

[Commentary]

(a) To prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a Belligerent Party, if there is reason to believe that such aircraft is destined for such use.

[Commentary]

(b) To prevent the departure from its jurisdiction of the crews of military aircraft, as well as passengers and crews of civilian aircraft, who are members of the armed forces of a Belligerent Party.

[Commentary]

  1. The first sentence of Rule 173 is based on Art. 45 of the HRAW,[816] Art. 7 of the 1907 Hague Convention (V),[817] and Art. 7 of the 1907 Hague Convention (XIII).[818]

  2. Without prejudice to an embargo decided upon by the UN Security Council, Rule 173 exclusively applies to private activities and not to government activities. Accordingly (see Art. 44 of the HRAW), “[t]he supply in any manner, directly or indirectly, by a neutral government to a belligerent Power of aircraft, parts of aircraft, or material, supplies or munitions required for aircraft is forbidden.”

  3. The distinction between public and private export and transit activities has been recognized by Art. 6[819] , Art. 7[820] and Art. 8[821] of the 1907 Hague Convention (XIII), as well as by Art. 44,[822] Art. 45[823] and Art. 46 of the HRAW.[824] There has nevertheless been some scepticism as to its continued validity. It has been argued that,[825] in an era when exports of military and “dual-use” goods are subject to State regulation, it is no longer correct to say that Neutrals are at liberty to allow private exports of such goods in an unregulated manner. Still, the majority of the Group of Experts has not been able to confirm on the basis of State practice that a modification of the traditional rule relating to the distinction between public and private exports has occurred. State practice clearly gives evidence of an increasing control of exports of arms and other military equipment by States. However, it gives no evidence that States consider themselves obliged by the law of neutrality to exercise such control. It seems that this is only a policy preference and not an expression of opinio juris.

  1. Art. 45 of the HRAW: “Subject to the provisions of Article 46, a neutral Power is not bound to prevent the export or transit on behalf of a belligerent or aircraft, parts or aircraft, or material, supplies or munitions for aircraft.”

  2. Art. 7 of the 1907 Hague Convention (V): “A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.”

  3. Art. 7 of the 1907 Hague Convention (XIII): “A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet.”

  4. Art. 6 of the 1907 Hague Convention (XIII): “The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.”

  5. Art. 7 of the 1907 Hague Convention (XIII), see fn. 817.

  6. 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.”

  7. Art. 44 of the HRAW: “The supply in any manner, directly or indirectly, by a neutral government to a belligerent Power of aircraft, parts of aircraft, or material, supplies or munitions required for aircraft is forbidden.”

  8. Art. 45 of the HRAW, see fn. 816.

  9. Art. 46 of the HRAW: “A neutral government is bound to use the means at its disposal: (1) To prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a belligerent Power, or carrying or accompanied by appliances or materials the mounting or utilization of which would enable it to make a hostile attack, if there is reason to believe that such aircraft is destined for use against a belligerent Power. (2) To prevent the departure of an aircraft the crew of which includes any member of the combatant forces of a belligerent Power. (3) To prevent work upon an aircraft designed to prepare it to depart in contravention of the purposes of this Article ; On the departure by air of any aircraft despatched by persons or companies in neutral jurisdiction to the order of a belligerent Power, the neutral government must prescribe for such aircraft a route avoiding the neighborhood of the military operations of the opposing belligerent, and must exact whatever guarantees may be required to ensure that the aircraft follows the route prescribed.”

  10. Para. 1112 of the German ZDv: “State practice has modified the former convention rule that a neutral state is not bound to prohibit export and transit of war material by private persons for the benefit of one of the parties to the conflict (Art. 7 HC V). To the extent that arms export is subject to control by the state, the permission of such export is to be considered as a non-neutral service.”

  1. This Rule is based on Art. 46 (1) of the HRAW.[826]

  2. Rule 173 (a) is historically an outgrowth of a similar prohibition relating to warships, having its roots in the famous 1872 Arbitral Award in the “Alabama” case.[827]

  3. The words “in a condition to make a hostile attack” mean that the aircraft is fuelled, armed and manned, ready for immediate hostile action after departure.

  1. Art. 46 (1) of the HRAW, see fn. 824.
    See also Art. 8 of the 1907 Hague Convention (XIII), see fn. 821.

  2. See Alabama Claims Award (1872), 1 History and Digest of the International Arbitrations to which the United States Has Been a Party 653 (J.B. Moore ed., 1898).

  1. This Rule is based on Art. 46 (2) of the HRAW.[828]

  2. Members of the armed forces of a Belligerent Party must be interned by the Neutral for the duration of the international armed conflict (see Rule 170 (c)). It follows that the Neutral must prevent their departure from its jurisdiction.

  3. The category “members of the armed forces of a Belligerent Party” is comprehensive. It includes not only crews of military aircraft, but also passengers and crews of civilian aircraft who are members of those armed forces.

  1. Art. 46 (2) of the HRAW, see fn. 824.

Categories: X: Specifics of Air or Missile Operations