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Is Permanent Neutrality Obsolete? Some Thoughts Regarding an Old Institution of International Law

Finland officially joined NATO on the 4th of April 2023 and Sweden almost a year later on the 7th of March 2024. With the aggression of Russia against Ukraine, neutrality policy faced a test and failed. Two countries have given up their neutrality policies, two Member States of the European Union.

One might ask the question, is neutrality becoming extinct? With the adoption of the United Nations Charter in 1945 and the general ban on the use of force between states, neutrality seems to lose significance. Blocks of allied countries in the form of collective security arrangements, like the North Atlantic Treaty Organization (NATO) appeared. The question arises, whether the only possibility for preserving the peace and security of smaller and middle-sized countries is through collective security organizations. This post will share some thoughts regarding the raison d’être of neutrality in the 21st-century Europe. Neutrality still has a place on the international stage of the age of jus contra bellum.

Types of neutrality, rights, and duties of neutrals

Before we go deeper into the question of whether neutrality has a place in today’s Europe, it is necessary to distinguish between the different types of neutrality according to international law and generally define what neutrality means, with the rights and duties entailed.

Neutrality comes from the Latin word “neuter”, which means “neither of each”. This describes the core concept of neutrality: in case of the outbreak of hostilities between two or more states, the neutral country will abstain from participating on any side of the parties of the conflict and from providing aid to any of the parties, influencing the outcome of the armed conflict.

Neutral states have the duty of impartiality, which means they cannot help any of the parties engaged in the conflict, but they do have the right to have their neutrality respected and not be drawn into the conflict. If the armed forces of one of the parties to the conflict enter its territories, the neutral country is obliged to do everything in its power, even to use force to remove or intern the military units of said state.

Neutral countries have a right to continue trade with any of the parties the same way as before the hostilities, however, they cannot supply weapons, ammunition, or war material to any of the parties and the volume of trade cannot change so significantly that it would aid the war efforts of one of the parties (principle of non-discrimination).

These fundamental principles and rules apply to all kinds of legally neutral countries under international law. Fair enough, but how does one become neutral?

Ad hoc neutral status starts at the outbreak of an armed conflict. When international armed hostilities with a certain intensity occur, states not party to the conflict can decide to either participate in it or abstain from it, remaining neutral. This form of neutrality is called natural neutrality by some authors as it occurs “naturally” during the outbreak of the international armed conflict (of a certain intensity). All states must decide how they treat the armed conflict, every third state can become neutral or a party to the conflict in principle, it is up to the state’s discretion. If the third state chooses to become neutral towards the participants of the armed conflict, it can do this by issuing a declaration (like Hungary did at the beginning of the Second World War, but later it became involved in it), agreeing on a treaty or simply by abstaining from the conflict. This decision can be amended at any time, for example, the state can issue a declaration that it intends to participate in the conflict.

There are many interesting contemporary conundrums regarding ad hoc neutrality, like the question of the status of Member States in the EU regarding the war between Russia and Ukraine. However, the subject of this blog post is rather permanent neutrality.   

The other type of neutrality is permanent neutrality, which means that a state decides during peacetime that it will not participate in any international armed conflicts in the future. The obligations of such states to abstain can be based on internal constitutional or other norms of the state (like the example of the Swiss constitution), an act, or even a declaration of the parliament of the government. These are all considered to be binding unilateral declarations of the state in international law, as a source of international law. Other sources of the status of permanent neutrality can be international treaties.

A permanently neutral state cannot make any decisions, or take any measures that would hinder its neutrality obligations in the future, like joining a military alliance. In case it does, it decides to end the permanently neutral status of the state. In some instances, this is possible under international law, in other ones, it can be against international law, in case there is an international treaty requiring the state to remain permanently neutral (like in the case of Switzerland). Neutrality law applies to both types of neutrality in the same way in case hostilities break out for example in their neighborhood. If hostilities break out between two countries, ad hoc and permanently neutral states will be in the same legal status relative to the conflict.

Recently, the number of permanently neutral states seems to be decreasing, although, arguably, that is not the case. Switzerland’s absolute neutrality was guaranteed by the great powers at the 1815 Congress of Vienna, at the request of Switzerland. Their status became a model for other states around the world as well. Austria became a permanently neutral country in 1955, due to the circumstances of the Cold War. The Austrian government negotiated with Moscow to restore the independence of Austria, on the condition that it become a neutral country following the model of Switzerland. Neutral status was introduced by the Federal Constitutional Law of October 26, 1955, which was supported (and still is) by the Austrian people.

In the case of Finland and Sweden, the situation is somewhat different. There were origins of Finish neutrality before 1935, but it was adopted as a policy explicitly in 1935. Finland was attacked by the Soviet Union in 1939, it fought in alliance with Germany between 1941-1944. The Paris Peace Treaty of 1947 and the Treaty on Friendship, Cooperation, and Mutual Assistance concluded between Finland and the Soviet Union in 1948 shaped the foreign policy of Finland and allowed for it to be able to follow a path of neutrality policy, staying out of international conflicts of the great powers. However, its neutrality was not enshrined in the constitution or in international treaties.

Much like Finland, Sweden did not have an obligation stemming from an international treaty or a constitutional norm to be neutral. During the conflicts of the 19th century, Sweden maintained a policy of neutrality, which was formally declared in 1834 by King Gustav XIV. Sweden adapted its neutrality policy to its current political considerations, for example, it allowed German forces to transit through Swedish territory in 1941. After Sweden joined the EU, many have argued that it left neutrality behind and chose a policy of non-alignment.

Both Finland and Sweden joined NATO recently, leaving between the policies of neutrality and non-alignment. However, one could argue that from the perspective of international law, they were not permanently neutral countries to begin with. There were no international treaties supporting their permanently neutral status. It is a relevant question though, whether they had unilateral declarations supporting their absolute neutrality that could be taken into consideration from the perspective of international law, however, this is debatable. One thing is for sure, they did have the political obligation to be ad hoc neutral countries relative to hostilities breaking out by other states until they left neutrality policy behind.

Is neutrality obsolete?

One could argue that Finland and Sweden were not permanently neutral countries to begin with, thus, their departure from their neutral (and non-aligned) policies recently did not change the number of permanently neutral countries around the world. Even if they could be counted as formerly absolutely neutral countries, Switzerland, Austria, Malta, Lichtenstein, The Holy Sea, Ireland, and other countries around the world still follow either a neutral policy or have permanently neutral status under international law. Therefore, permanent neutrality is not obsolete, the law of neutrality is still applicable to many permanently neutral countries or countries following a neutral policy (ad hoc neutrality relative to a specific international armed conflict). Furthermore, at the outbreak of hostilities between two states, every state must decide whether they will stay neutral (ad hoc neutrality) and thus will have the legal status of a neutral state, with the obligations and rights connected to that status.

There are, however, other debates regarding neutrality as well. With the adoption of the general ban on the use of force in international law, the legal framework around neutrality and thus its application changed significantly as well. The question arises, whether a neutral state has the obligation to support the victim of aggression, the state attacked illegally by another state. The short answer is that when the United Nations Security Council adopts a binding resolution and the neutral state is addressed, neutrality law is amended relating to that situation. In some cases, if the Security Council is blocked, the United Nations General Assembly can adopt a resolution dealing with the preservation of international peace and security as well.

Nevertheless, if this is not the case, neutrality law may apply depending on the decision of the neutral country to stay neutral. It can support the victim through humanitarian means as well, however, the neutral party is not obliged to support the victim with measures that would breach its neutrality. Furthermore, some states decided to declare themselves a “non-participating” state and thus not have to adhere to the obligations of neutrality law, being able to, for example, supply the victim with weapons. Some authors argue that supplying weapons is not even a breach of international law, as the aggressor is in violation of an erga omnes obligation and thus all states may adopt countermeasures against it. These positions are, however, controversial, and still under development.

Neutrality is still trying to preserve international peace and security

The topic of non-participation/qualified neutrality and supplying weapons to the neutral state is a complex one that warrants further analysis. For the sake of this post, it is sufficient to conclude that the law of neutrality is still relevant today, as there are many permanently neutral countries. The debates regarding the relationship between neutrality and the general ban on the use of force in international law do not completely refuse the existence of neutrality, quite the contrary, they are trying to find ways to establish exceptions to the law of neutrality. The idea of just war returned to international law, nonetheless, thinking practically, the United Nations Security Council is blocked in many cases of dangers to international peace and security. The law of neutrality can serve as a supplement to jus contra bellum, when the United Nations is unable to take steps against an aggressor, or in some cases, even identify them. The question remains open for further analysis, whether non-participation (and qualified neutrality) is an exception to neutrality due to aggression or whether only the classical notion of neutrality exists. Notwithstanding, one thing is for sure: neutrality is not extinct.

Árpád Lapu is an adviser at the Minister’s Cabinet of the Ministry of European Affairs of Hungary and an assistant research fellow at the Károli Gáspár University of the Reformed Church in Hungary. He was a policy adviser on constitutional issues at the European Parliament between 2019-2024. In the years 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is neutrality and non-participation in armed conflicts in international law and constitutional norms regarding permanent neutrality. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and research in the field of social sciences.

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