II. NEUTRALITY IN THE INTERNATIONAL LAW
As a security policy of a state, neutrality became a reality beginning with the 16th century, and the first legal definition was given only in 1856 in the Paris Declaration, referring, at that time, only to the maritime neutrality.
The neutrality, as an institution of the public international law as well as of the rights and duties of neutral states, has been granted a large recognition and a larger legal stability through the regulations of the Second Hague Convention since 1907. Six out of the thirteen conventions of this Conference treat the issue of neutrality, serving as a reference up to the present.
1. Neutrality in war on land
One of the essential conventions of this Conference is the Fifth Convention
regarding the rights and duties of the neutral powers and persons in a war on land.
Article 1 of this convention formulates the fundamental elements of neutrality, namely that the territory of neutral powers is inviolable. Later, this principle is materialized in a totality of duties of the belligerents towards the neutral states and in a correlative way the duties and rights of the neutral state towards the belligerents.
Articles 2 and 3 state that the belligerents are forbidden to move troops or convoys of either ammunition of war or supplies across the territory of a neutral power, as well as to install a wireless telegraphy station or other apparatus on the territory of a neutral power, for the purpose of communicating with belligerent forces on land or sea.
Article 5 compels the neutral power to be capable of maintaining its neutrality through military defense.
Article 6 states that the responsibility of a neutral power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents.
Article 7, 8 and 9 allow the freedom of decisions of a neutral state regarding the commercial relationships with the belligerent countries without prioritizing (favoring) any of these.
Article 10 recognizes the right of a neutral state to take all the measures it considers necessary, including the rejection through military force, with respect to any attempt against its neutrality, in order to impose on the belligerent states the compliance with its status, without considering this action as hostility.
Finally, articles 11-15 address the issues of internment of belligerent troops, the situation of prisoners of war, as well as the principles related to the passage over the territory of a neutral state of the sick and wounded belonging to the belligerent armies.
2. Neutrality in Naval War
The norms devoted to neutrality in the war at sea are particularly included in the 13th Hague Convention since 1907 regarding the rights and duties of the neutral Powers in Naval War.
According to the main ideas of this Convention, the belligerents must refrain from committing hostility acts in the territorial or in the inland waters of the neutral states.
Article 1 of the Convention stipulates that the Belligerents are bound to respect the sovereign rights of neutral powers and to refrain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality.
The acts that do not comply with the neutrality at sea are: capturing enemy ships in the waters of a neutral power; the use of ports and waters of neutral states as a base for maritime operations against the enemy, etc.
A neutral state cannot allow, however, a belligerent state to bring its mari- time spoils to its ports, in order to keep them under arrest. The neutrality of a
state is not achieved by the simple passage through its territorial waters of the war ships and spoils of the belligerents if this is done in compliance with the domestic legislation of the particular state.
3. Neutrality in the Air War
The fundamental principle in this field, namely the compliance with the inviolability of the neutral state is also applied in the Air War. The basic rules regarding this aspect were included in a regulation adopted in Hague in 1923.
The basic right of a neutral state is to intercept in its air space and capture any aircraft that does not subject to control, does not comply with or is sus- pected of violation of the regulations regarding war smuggling, hostile assistance, use of false signs, flight route, etc.
However, as the possibilities of interception of some aircrafts are rather limited, the duty of a neutral state to impede the violation of its neutrality is exercised depending on its capacities, just like in the case of Maritime War.
Some problems arise in situations when the aircrafts of the belligerent coun- tries are forced to land on the territory of a neutral state in case of force majeure or fortuitous cases like straying, engine breakdown, running out of fuel, unfavor- able weather conditions, etc. In such cases, between the regime applicable in the war on land (confiscation of the aircraft and internment of the crew) and the one applicable in the Naval War (the right of asylum on limited term) the practice of the states oriented to the rules of the war on land.
As a result, we can notice that in these conventions the rights and duties related to the status of neutrality are examined only in case of an armed conflict and therefore do not contain references to the rights and duties of the neutral countries in peacetime. Moreover, these conventions do not address the proce- dure of proclamation of neutrality and, respectively, the procedure of its recog- nition by the third countries.
Other documents of international law that approach the issue of neutrality are: the Pact of the Old Society of Nations, Neutrality Act on November 4, 1939, Geneva Conference since 1947 as well as the Protocols of Geneva, since 1977.
Yet, they do not modify or amend the Hague Convention with respect to the peacetime neutrality.
The United Nations Charter (October 24, 1945) does not cover neutrality and neither does it enumerate the neutral states. Some prerogatives are not recog- nized for these states and therefore they should comply with the provisions of the UN Charter regardless of their status. Finally, if all the member-states of the UNO behaved in accordance with this Charter, the status of neutrality would become useless. At the same time, the UN does not exclude the neutrality principle and status, specifying in article 48 that the military sanctions determined by the Security Council against a certain state can be enforced by all the member states or by part of them, depending on their individual decisions.
4. Permanent neutrality
The permanent neutrality emerged in the 19th century, beside the classic neutrality directly related to an armed conflict, characterized by the fact that it is established in peacetime through an international treaty or through a unilateral act (an internal law or a state declaration) which sometimes is recognized or even guaranteed by the international community.
According to the international public law, the states that declared their permanent neutrality assume, as a rule, the following additional duties: not to participate in political or military alliances or assume duties that have the purpose of preparation of a war; not to allow the use of its territory for the placement of foreign military bases; not to possess, produce or experiment mass destruction weapons; to pursue a policy of peaceful collaboration and maintain friendship relations with all the countries of the world.
Taking into account its specific duties, a neutral state is free to take any measures considered necessary for the protection of its territory as well as for the accomplishment of its foreign policy. However, the assumed commitments in peacetime, as a country with a status of permanent neutrality, cannot allow any ambiguous treatment on behalf of the third countries in wartime.