Customary Law Reflected in Hague Convention No. V
Under customary international law, as reflected in Hague Convention No. V, neutrality on the part of a state
not a party to an armed conflict consists in refraining from all participation in the conflict, and in preventing, tolerating,
and regulating certain acts on its own part, by its nationals, and by the belligerents. In response, it is the duty of the
belligerents to respect the territory and rights of neutral states. Those neutrality rights include the following:
The territory of the neutral state is inviolable. H. V. Art. 1. This prohibits any unauthorized entry into the
territory of the neutral state, its territorial waters, or the airspace over such areas by troops or instrumentalities of war.
Thus, belligerents are also specifically prohibited from moving troops or convoys of war munitions or supplies across the
territory of a neutral state. H. V. Art. 2. In consequence, the efforts of the neutral to resist, even by force, attempts to
violate its territory cannot be regarded as hostile acts by the offending belligerents. H. V. Art. 10. However, if the neutral
is unable, or fails to prevent such violations of its neutrality by the troops of one belligerent, that belligerent's enemy may
be justified in attacking those troops in neutral territory.
Belligerents are also prohibited from establishing radio communications stations in neutral territory to
communicate with their armed forces, or from using such facilities previously established before the outbreak of
hostilities for that purpose. H. V. Art. 3. However, a neutral state may permit the use of its own communications
facilities to transmit messages on behalf of the belligerents, so long as such usage does not lend assistance to the forces of
only one side of the conflict. Indeed, the neutral must ensure that the measure it takes in its status as a neutral state are
impartial as applied to all belligerents. H.V. Art. 9.
While a neutral state is under no obligation to allow passage of convoys or aircraft carrying the sick and
wounded of belligerents through its territory or airspace, it may do so without forfeiting its neutral status. However, the
neutral must exercise necessary control or restrictive measures concerning the convoys or medical aircraft, must ensure
that neither personnel nor material other than that necessary for the care of the sick and wounded is carried, and must
accord the belligerents impartial treatment. H. V. Art. 14; see GWS Art. 37. In particular, if the wounded and sick or
prisoners of war are brought into neutral territory by their captor, they must be detained and interned by the neutral state
so as to prevent them from taking part in further hostilities. GWS Art. 37.
The nationals of a neutral state are also considered as neutrals. H. V. Art. 16. However, if such neutrals
reside in occupied territory during the conflict, they are not entitled to claims different treatment, in general, from that
accorded the other inhabitants. They are likewise obliged to refrain from participation in hostilities, and must observe the
rules of the occupying power. Moreover, such neutral residents of occupied territory may be punished by the occupying
power for penal offenses to the same extent as nationals of the occupied nation. See GC Art. 4.
A national of a neutral state forfeits his neutral status if he commits hostile acts against a belligerent, or
commits acts in favor of a belligerent, such as enlisting in its armed forces. However, he is not to be more severely
treated by the belligerent against whom he has abandoned his neutrality than would be a national of the enemy state for
the same acts. H. V. Art. 17.
The United States has supplemented the above-described rules of international law concerning neutrality by
enacting federal criminal statutes that define offenses and prescribe penalties for violations against U.S. neutrality. Some
of these statutes are effective only during a war in which the U.S. is a declared neutral, while others are in full force and
effect at all times. See 18 U.S.C. 956-968; 22 U.S.C. 441-457, 461-465.
Impact of the United Nations Charter Regime on the Law of Neutrality
In the event of any threat to or breach of international peace and security, the United Nations Security Council
may call for action under Articles 39 through 42 of the UN Charter. In particular, the Security Council may make
recommendations, call for employment of measures short of force, or order forcible action to maintain or restore
international peace and security.
Law of War