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A Review on the Effectiveness of the Law of Neutrality in Modern International Law

  • DONG-A LAW REVIEW
  • 2012, (56), pp.389-414
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Kim Sung Won 1

1원광대학교

Accredited

ABSTRACT

International law has been developed to solve various matters that international society has. Paralleled with emergence of new problems, such as degradation of global environment, spread of deadly infectious diseases, and devastating impact of natural disasters, there is a growing need to create new areas of international law. As a result, international environmental law, international law on public health and international disaster response law are now increasing their voices in areas of international law. To the contrary, once understood as backbone of international law, some areas of international law seem to be on the fast track to extinction. Among them, the law of neutrality would be the first nominee for this extinction. Prior to creation of the United Nations, States can freely go to war. In this context, the status of neutrality has a special meaning for States not participated in belligerency. Once taking neutral status, neutral States can maintain their economic interests through international trade and keep themselves away from adverse influences of war. The 1907 Hague Convention V (Neutrality on Land War) and the 1907 Hague Convention XIII (Neutrality on Naval War) reflect consolidated efforts of the international society to achieve main goals of the law of neutrality. With the emergence of the UN system, views on neutrality are dramatically changed because war or the use of force is prohibited comprehensively except the case of self-defense. In addition, international society can declare one state as an aggressor and the other state as a victim of aggression through decisions of United Nations Security Council. This development created by the UN Charter undoubtedly dismantles basic rules of neutrality such as duty of impartiality and duty of non-participation. In this sense, some scholars argue that the law of neutrality is obsolete, a product of the international anarchy of the times, doomed to be replaced by a new centralized international community. In the collective security system created by the UN Charter and its prohibition of the use of force, the traditional rules of neutrality do not find scope of application. However, can we definitely declare the death of the law of neutrality without hesitation? Does the UN Charter always prevail over the law of neutrality? What role of the law of neutrality does play in assessing the legitimacy of unilateral humanitarian intervention with use of force? Is there any possibility to use the law of neutrality to address issues concerning War on Terror? These questions successively resurrect the necessity to appraise raison d'êre of the law of neutrality. Although the law of neutrality in existence today has a decidedly auxiliary role to play, the rumors of extinction have been exaggerated.

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