Concept of Neutrality under the United Nations Charter
The traditional law of neutrality, according to some jurists, has been abolished by the United Nations Charter. In view of jurists, when a state resorts to war there can be only two conditions. He can either be an aggressor or defender if he is an aggressor then preventive or enforcement action can be taken against him under the Charter. If he is a defender then he should be assisted by the United Nations. Thus the member states of the United Nations cannot remain neutral. Before we criticize the views of these jurists, it will be desirable and necessary to refer to the relevant provision in the United Nations Charter which have affected the old law of Neutrality.
Such provisions are as follows:
- Article 2(5): Provides that all the members shall give the United Nations every assistance in any action it takes in accordance with the present Charter and shall refrain from giving assistance to any State against the United Nations is taking preventive or enforcement action.
- Article 25: Provides that the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. That is to say, if the Security Council decides to take any action, the member states have no option but to carry out their decisions. Under such circumstances, they cannot remain neutral
- Article 49: Provides that the member of the United Nations shall join in affording mutual assistance in carrying out the measures decides upon by the Security Council. It has also affected the old law of neutrality.
- Article 51: Charter confers upon the Member State of the United Nations the right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.
It is clear now, provisions of the United Nations Charter have greatly affected the old law of neutrality. It is on the basis of these provisions that many jurists have expressed the view that the Charter of the United Nations has put an end to the old law of neutrality. That is to say, neutrality can still be practiced under certain circumstances. Professor Oppenheim has expressed the view that the charter has greatly affected the old law of neutrality, but has not completely abolished the law of neutrality. However, there are still certain situations wherein the member states of the United Nations can remain neutral. Thus we can see, as pointed out by Starke, the old law of neutrality has not been completely abolished and can be practiced by the member states of the United Nations in certain special circumstances, although in principle the member states of the United Nations cannot claim to remain neutral. Fenwick also said his opinions that if in respect of certain matters relating to peace and security, the Security Council is not able to make any decisions, and then in such a situation, other member states of the United States can remain neutral on this point.
Duties of Neutral States:
- Abstention: It is the duty of the neutral state to abstain from rendering direct or indirect help to the belligerent State. For example, the neutral State cannot assist either belligerent through war forces or cannot guarantee the loans to be given to them.
- Prevention: It is also the duty of the neutral States to prevent certain things within their territory. For example, it is the duty to ensure that persons are not recruited for the war forces of belligerent States within their territory. They should also prevent the preparation of war in favor of either of the belligerent States.
- Acquiescence: It is the duty of the neutral States to give their acquiescence in respect of certain matters. For example, they should give their acquiescence when a ship using the flag of their States is seized for carrying contraband. If they oppose such seizure it will be deemed to be a violation of the law of neutrality on their part. In addition to the above-mentioned duties, the neutral states have certain other duties although the duties are in consequence or connected with the above-mentioned three duties. Such duties are as follows:
- Restoration- It is the duty of the neutral states not to allow any act connected with the war within their territory and in case if any such act takes place it is their duty to restore it. This means that if one of the belligerents seizes an enemy ship within the neutral State’s territory, it is the neutral State’s responsibility to get the ship returned to the other belligerent State.
- Reparation: If a neutral State contravenes the above-mentioned duties, it may be held liable to pay compensation for the same. A leading case on the point is Albania Claims Arbitration, 1872. In this case, Britain was forced to pay America 1, 55, 00,000 dollars in gold as compensation for breaking the neutrality regulations. This case was related to the civil war of America in which Britain was neutral but had allowed certain facilities of fittings, etc. To Alabama and other destroyers within the territory. Since it was a violation of the laws of Neutrality, Britain was made to pay compensation for the same. The rights and duties of the neutral States have been mentioned in the Hague Convention of 1907.
Conclusion :
Article 12 limits to twenty –four hours period within which belligerent men-of-war remain within the territorial waters. As expressed by Oppenheim: Probably acquiescence in such passage as causes the man of war to remain within the territorial waters for more than 24 hours is not inconsistent with neutrality so long as it does not result in transforming the territorial waters into a base of warlike operations for offensive or for defensive purpose.
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