XV The Law of Neutrality

Chapter Contents
15.1 Introduction
15.2 Application of the Law of Neutrality
15.3 Overview of the Neutrality Laws Framework of Reciprocal Rights and
Duties
15.4 Remedies for Violations of Neutrality Law
15.5 Prohibition on the Use of Neutral Territory as a Base of Operations
15.6 Neutral Persons
15.7 Neutral Waters
15.8 Passage of Belligerent Vessels and Aircraft Through International Straits and
Archipelagic Sea Lanes
15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal
Waters
15.10 Neutral Airspace
15.11 Belligerent Right of Angary
15.12 Neutral Commerce and Carriage of Contraband
15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil
Aircraft
15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and
Neutral-Marked Civil Aircraft
15.15 Capture of Neutral Vessels and Aircraft
15.16 Belligerent Forces Taking Refuge in Neutral Territory
15.17 POWs or Internees Brought to, or Received by, a Neutral State
15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral
Territory
15.1 INTRODUCTION
This Chapter addresses the law of neutrality.
Issues of neutrality law can raise questions of national policy regarding an armed
conflict. 1 In U.S. practice, such national policies would be developed through the National
Security Council (NSC) process by the Department of State and other departments and agencies
represented on the National Security Council. 2
Some of the rules described in this Chapter were formulated long ago. Moreover, treaties
concerning the law of neutrality might, by their terms, apply only to a limited set of international
1

Refer to 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed
Conflict).
2

See, e.g., Barack Obama, Presidential Policy Directive 1, Organization of the National Security Council System,
Feb. 13, 2009.

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armed conflicts, and the rules prescribed in those treaties might not reflect customary
international law. 3 In addition, it may be important to consider the implications of more recent
treaties that might be applicable to a specific legal issue. In particular, the Charter of the United
Nations may, in certain respects, be understood to be consistent with, and, in other respects, to
modify, rules reflected in the law of neutrality. 4
15.1.1 Matters Addressed by the Law of Neutrality. The law of neutrality prescribes the
legal relationship between belligerent States and neutral States. The law of neutrality regulates
relations between: (1) belligerent States, vessels, aircraft, and persons; and (2) neutral States,
vessels, aircraft, and persons. Under the law of neutrality, these categories of belligerents and
neutrals have corresponding rights, duties, and liabilities. Special rules have been developed to
address situations on land, at sea, and in the air.
Certain rules found in the law of neutrality have also been applied in other contexts that
are closely analogous, such as a States duties to prevent a non-State armed groups use of its
territory for hostile expeditions against another State. 5
15.1.2 Classification of States as Belligerent, Neutral, or Non-Belligerent.
15.1.2.1 Belligerent State. Belligerent State refers to a State that is engaged in an
international armed conflict, whether or not a formal declaration of war has been made. 6
15.1.2.2 Neutral State. Neutral State refers to a State that is not taking part in the
armed conflict. 7 In some cases, States formally state their neutral status in relation to an armed
conflict. 8
15.1.2.3 Non-Belligerent State. The term non-belligerent or non-belligerent
State has been used to refer to a State that is not participating in the armed conflict. The term
non-belligerent Power is used in the 1949 Geneva Conventions. 9
In addition, the term non-belligerent has been used to refer to States that sought to
refrain from active participation in hostilities, but that did not adhere to the duties of strict

Refer to 15.1.4 (Application of Treaties on Neutrality and Customary International Law).

Refer to 15.2.3 (The Law of Neutrality Under the Charter of the United Nations).

Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC).

Refer to 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION preamble (Considering that neutrality is the juridical
situation of states which do not take part in the hostilities, and that it creates rights and imposes obligations of
impartiality, which should be regulated;).

Refer to 15.2.1.4 (Proclamations of Neutrality and Other Notifications of Neutral Status).

Refer to 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

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impartiality to which neutrals have traditionally been required to adhere. 10 Such departure from
the traditional duties of impartiality has, at times, been controversial. 11
15.1.3 Purpose of the Law of Neutrality. The law of neutrality seeks to preserve friendly
relations between belligerent and neutral States by permitting States to avoid taking sides in an
armed conflict. 12 The law of neutrality also seeks to prevent additional States from being drawn
into an armed conflict by establishing a clear distinction between belligerent and neutral States. 13
In particular, the law of neutrality seeks to minimize the effects of armed conflict on States that
are not party to the conflict, including by lessening the effect of war on neutral commerce.
15.1.4 Application of Treaties on Neutrality and Customary International Law. The
treaties that address neutrality may be limited in their application as a matter of treaty law, but
provisions of these treaties may reflect customary international law.
For example, many of the treaties that address the law of neutrality were concluded
before World War II, and have not been universally ratified by States. 14 Moreover, certain
treaties only apply between the Parties to the treaty and, in some cases, only if all the belligerent
States are also Parties to the treaty. 15 The principles reflected in those treaties, however, may
still be applicable insofar as they reflect customary international law, even if they do not apply as
a matter of treaty law. 16 However, if the factual circumstances of the current context are quite
different from those underlying the formulation of the original treaty rule, it may be incorrect to
10

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 192 (Thus one of the marked developments of the second
World War was the emergence of so-called nonbelligerency, a term used to indicate the position of states that
refrained from active participation in hostilities while at the same time abandoning the duties heretofore imposed
upon non-participants.); id. at 198 (It has already been observed that to the extent that this term has not been used
merely as a synonym for the usual position occupied by non-participants it has served to indicate varying degrees of
departure from the duties traditionally consequent upon a status of non-participation in war.).
11

Refer to 15.2.2 (Qualified Neutrality).

12

Carl Salans, Deputy Legal Adviser, Department of State, comment to R.R. Baxter, The Legal Consequences of the
Unlawful Use of Force under the Charter, 62 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW AT
ITS ANNUAL MEETING 68, 76 (1968) (When armed conflict occurs, the purpose of international law ought to be to
limit the scope of the conflict. This is also a purpose of the Charter. The law of neutrality serves that purpose.
Small states, like Cambodia, would find themselves quickly engulfed in conflict if they had to act on a determination
that one side or the other in hostilities was acting unlawfully. And nuclear states run another kind of risk if they
have to take sides in every conflict.).
13

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 486 (1101) (1999) (By establishing a clear distinction between neutral states and states parties to the
conflict, international law prevents more states from being drawn into the conflict.).
14

See, e.g., 1928 PAN AMERICAN NEUTRALITY CONVENTION; HAGUE V; HAGUE XIII.

15

See, e.g., HAGUE V art. 20 (The provisions of the present Convention do not apply except between Contracting
Powers and then only if all the belligerents are parties to the Convention.); HAGUE XIII art. 28 (The provisions of
the present Convention do not apply except to the contracting Powers, and then only if all the belligerents are parties
to the Convention.). Consider Declaration respecting maritime law signed by the Plenipotentiaries of Great
Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856,
reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89, 90 (1907) (The present Declaration is not and shall
not be binding, except between those Powers who have acceded, or shall accede to it.).
16

Refer to 1.8.1 (Relationship Between Treaties and Customary International Law).

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assume that the particular treaty rule reflects (or should reflect) a rule of customary international
law applicable to the current factual circumstances.
15.1.5 Domestic Neutrality Laws. States may have domestic legislation relating to the
law of neutrality.
In some cases, these statutes implement a States obligations under the law of neutrality,
such as its obligations as a neutral to prevent the arming of belligerent warships in neutral
ports. 17 These statutes may also serve to implement a States international obligations outside
the context of international armed conflict, such as its peacetime obligations to prevent its
territory from being used as a base of operations for hostile expeditions against friendly States. 18
Domestic statutes may also implement the rights of States under the law of neutrality,
such as the right of belligerents to conduct captures. 19
Domestic neutrality statutes may also help implement a States national policy with
respect to neutrality. The law of neutrality permits neutral States a degree of policy discretion
with respect to an armed conflict. 20 Some neutrality treaties recognize such domestic
legislation. 21 Such legislation, however, must be applied impartially among belligerents. 22 In

17

For example, 18 U.S.C. 961 (Whoever, within the United States, increases or augments the force of any ship of
war, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war,
cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or
belonging to the subjects or citizens of any such prince or state, or of any colony, district, or people, the same being
at war with any foreign prince or state, or of any colony, district, or people, with whom the United States is at peace,
by adding to the number of guns of such vessel, or by changing those on board of her for guns of a larger caliber, or
by adding thereto any equipment solely applicable to war, shall be fined under this title or imprisoned not more than
one year, or both.).
18

For example, 18 U.S.C. 960 (Whoever, within the United States, knowingly begins or sets on foot or provides
or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to
be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district,
or people with whom the United States is at peace, shall be fined under this title or imprisoned for not more than
three years, or both.). Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC).
19

For example, 10 U.S.C. 7651 ((a) This chapter applies to all captures of vessels as prize during war by
authority of the United States or adopted and ratified by the President. However, this chapter does not affect the
right of the Army or the Air Force, while engaged in hostilities, to capture wherever found and without prize
procedures--(1) enemy property; or (2) neutral property used or transported in violation of the obligations of neutrals
under international law.).
20

Cordell Hull, Secretary of State, Statement at Department of State Press Conference, Sept. 21, 1939, 1
DEPARTMENT OF STATE BULLETIN 280 (Sept. 23, 1939) (I think that you will find from a careful analysis of the
underlying principles of the law of neutrality that this Nation, or any neutral nation, has a right during a war to
change its national policies whenever experience shows the necessity for such change for the protection of its
interests and safety. I do not mean to be understood as saying that such action may be taken at the behest or in the
interests of one of the contending belligerents, it being understood, of course, that any measures taken shall apply
impartially to all belligerents.).
21

For example, 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (When, according to the
domestic law of the neutral state, the ship may not receive fuel until twenty-four hours after its arrival in port, the
period of its stay may be extended an equal length of time.).

932

addition, a State may have an obligation to notify other States of its domestic neutrality
statutes. 23
15.2 APPLICATION OF THE LAW OF NEUTRALITY
The application of the law of neutrality may depend on a States national policy towards
an armed conflict. A States obligations under jus ad bellum, including its obligations under the
Charter of the United Nations, may alter significantly its rights and duties under the law of
neutrality.
15.2.1 Armed Conflict and the Application of the Law of Neutrality.
15.2.1.1 Application of the Law of Neutrality and the National Policies of States
Towards an Armed Conflict. Whether the law of neutrality governs a States relations with
belligerents in an armed conflict may depend on that States national policy towards that armed
conflict. 24 For example, if an armed conflict occurs, a State may choose to join the armed
conflict, in which case it would no longer be neutral and the law of war rather than the law of
neutrality would govern its relations with opposing belligerents. 25 Similarly, if two States
conduct hostilities against one another, but refuse to recognize a state of armed conflict, third
States may reject this position and invoke the law of neutrality to protect their rights in relation
to the armed conflict. 26 In addition, outside States that recognize the belligerency of a rebel
faction in a civil war may choose to apply the law of neutrality in their relations with the rebel
faction and with the government. 27
22

HAGUE XIII preamble (Seeing that it is desirable that the Powers should issue detailed enactments to regulate the
results of the attitude of neutrality when adopted by them; Seeing that it is, for neutral Powers, an admitted duty to
apply these rules impartially to the several belligerents;).
23

HAGUE XIII art. 27 (The Contracting Powers shall communicate to each other in due course all Laws,
Proclamations, and other enactments regulating in their respective countries the status of belligerent warships in
their ports and waters, by means of a communication addressed to the Government of the Netherlands, and
forwarded immediately by that Government to the other Contracting Powers.).

24

Compare 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules).

25

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 489 (1104) (1999) (Traditional international law left to each state the sovereign decision of whether, at
the outbreak of a conflict between other states, it would participate or remain neutral. The distinction between
participation and neutrality is a political, not military, decision. Where the law of neutrality requires decisions to be
taken by military command, the government concerned must give political guidance and clarify the position which it
takes in relation to a particular conflict.).
26

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 199-200 (Unlike the law governing the mutual behavior of
combatants, a large part of which may be considered operative in any international armed conflict, the rules
regulating the behavior of neutrals and belligerents remain strictly dependent for their operation upon the existence
of a state of war. It may be, however, that states engaged in armed conflict are unwilling to issue a declaration of
war or even to acknowledge the existence of a state of war. In such situations it would appear that the decision as to
whether or not to recognize the existence of a state of war, and thereby to bring into force the law of neutrality, must
rest principally with third states. The attitude of the parties engaged in armed conflict need not prove decisive for
third states, the latter being at liberty either to accept the position of the contestants (i.e., the position that war does
not exist) or to reject this position and to invoke the law of neutrality.).

27

Refer to 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).

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15.2.1.2 Application of Certain Duties of Neutral States Only in Certain

International Armed Conflicts. The duties of neutral States to refrain from certain types of
support to belligerent States do not apply to all armed conflicts to which jus in bello rules apply;
rather, such duties are only triggered in armed conflicts of a certain duration and intensity. 28
However, belligerent States have fundamental duties to respect the sovereignty of neutral States
in all international armed conflicts. 29
15.2.1.3 Application of Certain Rules in the Law of Neutrality Outside the Context
of International Armed Conflict. Certain parts of the law of neutrality may be viewed as
applicable outside the context of international armed conflict because certain duties that the law
of neutrality imposes are also found in international law applicable in peacetime. For example,
under the Charter of the United Nations, States must respect the sovereignty of other States. 30
Thus, States have duties of non-intervention and neutrality in relation to a non-international
armed conflict against a friendly State. 31
15.2.1.4 Proclamations of Neutrality and Other Notifications of Neutral Status. A
formal declaration by nonparticipating States of their intention to adopt a neutral status generally
would not be required for a State to retain its neutral status. 32 However, in light of the
importance of national policy in determining whether the law of neutrality is applicable, States
traditionally issued proclamations of neutrality in order to make known their neutral status in
relation to a conflict. 33 These proclamations of neutrality would state the determination of the
28

See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 490-91 (1106) (1999) (The law of neutrality leads to considerable modifications in the relationships
between the neutral and the belligerent states, for instance as to the admissibility of exports, the sojurn of warships
of the parties to the conflict in neutral waters, and the control of neutral trade. These fundamental changes are not
triggered by every armed incident, but require an armed conflict of a certain duration and intensity. Thus, the
threshold of application of the law of neutrality is probably higher than that for the rules of the law of war relating to
the conduct of hostilities and the treatment of prisoners, which are applicable also in conflicts of less intensity.).
29

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. (88-89) (The Court will
now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings
brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, the position was put as follows by one State: The principle of neutrality, in its classic sense, was aimed at
preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals.
Thus: the territory of neutral powers is inviolable; belligerents are bound to respect the sovereign rights of neutral
powers neutral states have equal interest in having their rights respected by belligerents . It is clear,
however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the
transborder damage caused to a neutral State by the use of a weapon in a belligerent State. The principle so
circumscribed is presented as an established part of the customary international law. The Court finds that as in the
case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the
principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian
principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all
international armed conflict, whatever type of weapons might be used.) (citations omitted) (amendments in
original).

30

Refer to 1.11.3 (Prohibition on Certain Uses of Force).

31

Refer to 17.18 (Non-Intervention and Neutral Duties in NIAC).

32

Compare 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

33

For example, Franklin D. Roosevelt, Proclamation: Proclaiming the Neutrality of the United States in the War
Between Germany and France; Poland; and The United Kingdom, India, Australia and New Zealand, Sept. 5, 1939,

934

State to observe the duties of neutrality and warn its nationals of the penalties they would incur
for joining or assisting a belligerent State. 34
Although the practice of issuing formal proclamations of neutrality has declined, States
have continued to make public statements of neutrality to indicate their national policy and legal
status in relation to an armed conflict. 35 States may also communicate their neutral status
through diplomatic channels or use other means they deem appropriate.
15.2.2 Qualified Neutrality. The United States has taken the position that certain duties
of neutral States may be inapplicable under the doctrine of qualified neutrality.

54 STAT. 2629 (AND I do hereby give notice that all nationals of the United States and others who may claim the
protection of this government, who may misconduct themselves in the premises, will do so at their peril, and that
they can in no wise obtain any protection from the government of the United States against the consequences of their
misconduct.); Woodrow Wilson, Proclamation, Aug. 18, 1914, 38 STAT. 2015 (Whereas the United States is in
fact aware of the existence of a state of war between Belgium and Germany; And Whereas the United States is on
terms of friendship and amity with the contending powers, and with the persons inhabiting their several
dominions;); George Washington, Proclamation of Neutrality, Apr. 22, 1793, reprinted in 32 THE WRITINGS OF
GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745-1799, 430-31 (1939) (Whereas it appears
that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, on the one
part, and France on the other; and the duty and interest of the United States require, that they should with sincerity
and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers: I have therefore
thought fit by these presents, to declare the disposition of the United States to observe the conduct aforesaid towards
those powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts and
proceedings whatsoever, which may in any manner tend to contravene such disposition. And I do hereby also make
known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture
under the law of nations, by committing, aiding or abetting hostilities against any of the said powers, or by carrying
to any of them, those articles which are deemed contraband by the modern usage of nations, will not receive the
protection of the United States against such punishment or forfeiture; and further that I have given instructions to
those officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the
cognizance of the Courts of the United States, violate the law of nations, with respect to the powers at war, or any of
them.).
34

1956 FM 27-10 (Change No. 1 1976) 514 (When war occurs, neutral States usually issue proclamations of
neutrality, in which they state their determination to observe the duties of neutrality and warn their nationals of the
penalties they incur for joining or assisting a belligerent.).
35

For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (Iran and Jordan each issued proclamations of
neutrality during the Persian Gulf crisis and, as described, refrained from active participation in the war.); Ronald
Reagan, Written Responses to Questions Submitted by Al-Qabas of Kuwait, May 12, 1987, 1987-I PUBLIC PAPERS
OF THE PRESIDENTS 529 (The United States is neutral in the Iran-Iraq war.); Jimmy Carter, Situation in Iraq and
Iran: Remarks Concerning the Conflict, Sept. 24, 1980, 1980-81-II PUBLIC PAPERS OF THE PRESIDENTS 1921, 1922
(Let me repeat that we have not been and we will not become involved in the conflict between Iran and Iraq.);
Royal Government of Laos, Statement of Jul. 9, 1962, reprinted in Burma, Cambodia Canada, Peoples Republic of
China, Democratic Republic of Viet-Nam, etc., Declaration on the Neutrality of Laos, Jul. 23, 1962, 456 UNTS 301,
302-03 (The Royal Government of Laos, Being resolved to follow the path of peace and neutrality in conformity
with the interests and aspirations of the Laotian people, as well as the principles of the Joint Communiqu of Zurich
dated June 22, 1961, and of the Geneva Agreements of 1954, in order to build a peaceful, neutral, independent,
democratic, unified and prosperous Laos, Solemnly declares that: (4) It will not enter into any military alliance or
into any agreement, whether military or otherwise, which is inconsistent with the neutrality of the Kingdom of Laos;
it will not allow the establishment of any foreign military base on Laotian territory, nor allow any country to use
Laotian territory for military purposes or for the purposes of interference in the internal affairs of other countries,
nor recognise the protection of any alliance or military coalition, including SEATO;).

935

The law of neutrality has traditionally required neutral States to observe a strict
impartiality between parties to a conflict, regardless of which State was viewed as the aggressor
in the armed conflict. 36 However, after treaties outlawed war as a matter of national policy, it
was argued that neutral States could discriminate in favor of States that were victims of wars of
aggression. 37 Thus, before its entry into World War II, the United States adopted a position of
qualified neutrality in which neutral States had the right to support belligerent States that had
been the victim of flagrant and illegal wars of aggression. 38 This position was controversial. 39
15.2.3 The Law of Neutrality Under the Charter of the United Nations. The Charter of
the United Nations may, in certain respects, be understood to be consistent with, and, in other
respects, to modify, rules reflected in the law of neutrality.

36

Refer to 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward
Contending Parties).
37

LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 221 (61) (Similarly, it is open to neutral States as a matter
of legal right to give effect to their moral obligation to discriminate against the aggressor and to deny him, in their
discretion, the right to exact from neutrals a full measure of impartiality. In some cases neutral States may, having
regard to their own safety and the desire not to be involved in the war, continue to accord impartial treatment to the
aggressor. But they need not do so wherever they feel in the position actively to assert the principle, as did the
United States and other States before entering the Second World War, that the historic foundation of neutrality as an
attitude of absolute impartiality has disappeared with the renunciation and the abolition of war as an instrument of
national policy. With regard to States bound by the obligations of the Charter of the United Nations that legal
faculty and that moral obligation assume the clear complexion of a legal duty.).
38

Address of Robert H. Jackson, Attorney General of the United States, Inter-American Bar Association, Havana,
Cuba, March 27, 1941, 35 AJIL 348, 353-54 (1941) (Present aggressive wars are civil wars against the
international community. Accordingly, as responsible members of that community, we can treat victims of
aggression in the same way we treat legitimate governments when there is civil strife and a state of insurgencythat
is to say, we are permitted to give to defending governments all the aid we choose. In the light of the flagrancy of
current aggressions, which are apparent on their face, and which all right thinking people recognize for what they
are, the United States and other states are entitled to assert a right of discriminatory action by reason of the fact that,
since 1928 so far as it is concerned, the place of war and with it the place of neutrality in the international legal
system have no longer been the same as they were prior to that date.).
39

See, e.g., Edwin Borchard, War, Neutrality and Non-Belligerency, 35 AJIL 618 (1941) (At Havana on March 27,
1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was
now obliged to render to England (and presumably others) all aid short of war, while at the same time it is the
declared determination of the government to avoid entry into the war as a belligerent. Apparently convinced that
United States military aid to one belligerent alone cannot be justified by the traditional international law, the
Attorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality of
the past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now
been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest Articles of Interpretation
of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way of
life for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The
new international law is thus found in the vague and illusory monuments to the myth called collective security,
which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General that
many international lawyers do not share his views on international law or how international law is created, or follow
his unique construction of documents.).

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15.2.3.1 Consistency Between the Rules in the Law of Neutrality and the Charter
of the United Nations. In certain cases, the rules on the use of force prescribed in the Charter of
the United Nations would be understood to be consistent with rules in the law of neutrality. 40
For example, a neutral States acts of participation in a war of aggression against another
member of the United Nations would likely violate not only its duties under the law of
neutrality, 41 but also the Charters prohibition on the unlawful use of force. 42
In the past, the law of neutrality was often viewed as not regulating a States decision as
to whether to adopt a position of neutrality or hostility towards another State. 43 Thus, under this
view, the requirements of the law of neutrality could have been avoided by neutral States if they
decided to enter the war or by belligerent States if they chose to declare war on a neutral. 44 The
Charter of the United Nations clarifies that such decisions to resort to force may not be made
without a proper legal basis. 45 Thus, insofar as provisions of the Charter are coincident with
certain rules in the law of neutrality, such requirements of the Charter may not be evaded in the

40

See, e.g., BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 673 (1994) (For the purpose
of responding to an armed attack, the state acting in self-defence is allowed to trespass on foreign territory, even
when the attack cannot be attributed to the state from whose territory it is proceeding. It does not follow from the
fact that the right of self-defence pursuant to Art. 51 is restricted to the case of an armed attack that defensive
measures may only affect the attacker. Thus it is compatible with Art. 51 and the laws of neutrality when a
warring state fights hostile armed forces undertaking an attack from neutral territory on the territory of the neutral
state, provided that the state concerned is either unwilling or unable to curb the ongoing violation of its neutrality.).
41

Refer to 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward
Contending Parties).
42

Refer to 1.11.3 (Prohibition on Certain Uses of Force).

43

See Editorial Comment: The Hague Conventions and the Neutrality of Belgium and Luxemburg, 9 AJIL 959
(1915) ([Articles of the Hague V] do not, however, guarantee neutrality, nor do they prevent a state from declaring
war against a state wishing to remain neutral, which thus becomes a belligerent and loses the benefit of the
convention. If the Hague conventions were violated by Germany in this matter it would appear to be a violation of
the spirit, not of the letter, and indeed it is difficult to maintain that there was a violation even of the spirit, because
international law in its present development apparently allows nations to go to war whenever they please, and the
Hague conventions do not modify or abridge this provision of the law of nations.).
44

See John Delatre Falconbridge, The Right of a Belligerent to Make War Upon a Neutral, 4 TRANSACTIONS OF THE
GROTIUS SOCIETY 204, 209-11 (1918) (The fifth [Hague] convention [of 1907] does not relate to the question of
the right to convert the relation of belligerent and neutral into that of belligerent and belligerent, but simply defines
the rights and obligations incidental to the former relation. The fundamental proposition which has been left
untouched by The Hague Conventions is that by the existing rules of international law one State may declare war
against another State without any justifiable casus belli, and it commits no breach of law in so doing if it complies
with the requirements relating to the declaration of war. Its action may be immoral, but it is not illegal unless there
is a treaty forbidding such action (as there was in the case of Belgium).).
45

See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 489 (1104) (1999) (Traditional international law left to each state the sovereign decision of whether, at
the outbreak of a conflict between other states, it would participate or remain neutral. At the outbreak of a
conflict between two other states, a state is still free to participate or to remain neutral. Modern international law,
however, limits the freedom of decision as to which side on which a state may become involved. Support granted to
an aggressor is illegal, participation on the side of the victim of aggression, being collective self-defence, is
permissible.).

937

way that arguably certain requirements of the law of neutrality previously could have been
evaded.
15.2.3.2 Modification of Rules in the Law of Neutrality. The Charter of the
United Nations and decisions by the U.N. Security Council may, in certain circumstances,
qualify rights and obligations under the law of neutrality. 46
For example, under the Charter of the United Nations, States may have obligations to
support military operations that have been authorized by the U.N. Security Council. 47 In such
circumstances, the obligations under the Charter would prevail over the obligations under the law
of neutrality. 48 For example, a State that is not participating in the conflict that received in its
territory military forces operating pursuant to a U.N. Security Council resolution might be
required to return them, rather than to intern them under the law of neutrality. 49 Moreover, U.N.
Security Council resolutions may obligate States to take measures that would not be required by
neutrality law. For example, the U.N. Security Council may require States to impose restrictions
on private conduct within their jurisdiction, such as to prevent private individuals from selling
weapons to certain States or non-State armed groups. 50

46

1956 FM 27-10 (Change No. 1 1976) 513 (Although these provisions of the Charter have not made it
impossible for a State to remain neutral, the obligations which the Charter imposes have to a certain extent qualified
the rights of States in this respect.).
47

Refer to 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions).

48

For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (Neutrality in the Persian Gulf War was controlled
in part by the 1907 Hague V Convention; but traditional concepts of neutral rights and duties are substantially
modified when, as in this case, the United Nations authorizes collective action against an aggressor nation. It was
the US position during the Persian Gulf crisis that, regardless of assertions of neutrality, all nations were obligated to
avoid hindrance of Coalition operations undertaken pursuant to, or in conjunction with, UNSC decisions, and to
provide whatever assistance possible. By virtue of UNSC Resolution 678 (29 November), members were requested
to provide appropriate support for the actions undertaken by nations pursuant to its authorization of use of all
necessary means to uphold and implement prior resolutions. The language of UNSC Resolution 678 is consistent
with Articles 2(5), 2(6), 25, and 49 of the UN Charter.).

49

FINAL REPORT ON THE PERSIAN GULF WAR 628 (Although the situation never arose, the United States advised
Iran that, in light of UNSC Resolution 678, Iran would be obligated to return downed Coalition aircraft and aircrew,
rather than intern them. This illustrates the modified nature of neutrality in these circumstances. It also was the US
position that entry into Iranian (or Jordanian) airspace to rescue downed aviators would be consistent with its
international obligations as a belligerent, particularly in light of Resolution 678.).

50

For example, U.N. SECURITY COUNCIL RESOLUTION 1970, U.N. Doc. S/RES/1970, 9 (Feb. 26, 2011) (Decides
that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or
transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag
vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles
and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training,
financial or other assistance, related to military activities or the provision, maintenance or use of any arms and
related materiel, including the provision of armed mercenary personnel whether or not originating in their
territories,); U.N. SECURITY COUNCIL RESOLUTION 713, U.N. Doc S/RES/713 6 (Sept. 25, 1991) (Decides, under
Chapter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace and
stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and
military equipment to Yugoslavia until the Council decides otherwise following consultation between the SecretaryGeneral and the Government of Yugoslavia;).

938

15.2.4 Neutrality Under Regional and Collective Self-Defense Arrangements. Regional

and collective self-defense agreements may affect States rights to maintain a neutral status
because the States may be required to provide assistance or take military action in collective selfdefense until the U.N. Security Council has taken measures necessary to maintain international
peace and security. 51 The obligations by a State under such an agreement may prevail over the
States right under the customary law of neutrality to be impartial among the belligerents and to
abstain from the armed conflict.
15.3 OVERVIEW OF THE NEUTRALITY LAWS FRAMEWORK OF RECIPROCAL RIGHTS AND DUTIES
The law of neutrality establishes a framework of reciprocal rights and duties for neutrals
and belligerents.
15.3.1 Neutral Rights. Belligerent States are bound to respect the sovereign rights of
neutral States (e.g., the inviolability of a neutral States territory). 52 The exercise by a neutral
State of its rights under the law of neutrality may not be considered an unfriendly act by either of
the belligerents. 53
15.3.1.1 Inviolability of Neutral Territory - Prohibition on Unauthorized Entry.
The territory of neutral States is inviolable. 54 The inviolability of neutral territory prohibits any
unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over
such areas by armed forces or instrumentalities of war. 55
15.3.1.2 Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other
Violations of Neutrality. The inviolability of neutral territory also requires belligerent forces to
refrain from committing hostile acts or other acts that, if knowingly permitted by a neutral State,
would constitute a violation of neutrality in neutral territory (including neutral lands, neutral

51

Refer to 1.11.5.5 (Right of Collective Self-Defense).

52

HAGUE XIII art. 1 (Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in
neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a
violation of neutrality.); 1956 FM 27-10 (Change No. 1 1976) 512 (It is the duty of belligerents to respect the
territory and rights of neutral States.).

53

HAGUE XIII art. 26 (The exercise by a neutral Power of the rights laid down in the present convention can under
no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles
relating thereto.).

54

HAGUE V art. 1 (The territory of neutral Powers is inviolable.).

55
1956 FM 27-10 (Change No. 1 1976) 515 (b. Application of Rule. The foregoing rule prohibits any
unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops
or instrumentalities of war.).

939

waters, and neutral airspace). 56 For example, belligerent warships may not exercise the
belligerent right of visit and search, and may not capture vessels in neutral waters. 57
However, belligerent forces may use force in self-defense or as part of self-help
enforcement actions against enemy forces that have committed violations of neutrality when the
neutral State is unwilling or unable to address such violations. 58
15.3.2 Neutral Duties -- Abstention From Participation in Hostilities and Impartial
Conduct Toward Contending Parties. The principal duties of a neutral State are to abstain from
any participation in the conflict and to be impartial in conduct towards contending parties. 59
Certain other duties may be viewed as a consequence of these principal duties, but
different publicists have categorized these duties differently. For example, the duty of a neutral
State to refrain from supporting one side in the conflict may be viewed as a function of its duty
to abstain from participation in hostilities. 60 On the other hand, the duty of a neutral State to
refrain from supporting one side in the conflict may also be viewed as a result of its duty of
impartiality. 61
The duties of a neutral State may also be classified in terms of: (1) abstention
(obligations to refrain from taking certain actions); (2) prevention (obligations to take certain
actions); and (3) acquiescence (obligations to accept certain actions by belligerents). 62

56

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 3 (Belligerent states are obligated to refrain from
performing acts of war in neutral waters or other acts which may constitute on the part of the State that tolerates
them, a violation of neutrality.); HAGUE XIII art. 1 (Belligerents are bound to respect the sovereign rights of
neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly
permitted by any Power, constitute a violation of neutrality.).
57

Refer to 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search); 15.15 (Capture of
Neutral Vessels and Aircraft).
58

Refer to 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
59

The Three Friends, 166 U.S. 1, 52 (1897) (Neutrality, strictly speaking, consists in abstinence from any
participation in a public, private or civil war, and in impartiality of conduct toward both parties, .).
60

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 485 (1101) (1999) (The duty of non-participation means, above all, that the state must abstain from
supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to
allow one party to the conflict to use the resources of the neutral state against the will of the opponent. Therefore,
the defence of neutrality is part of the duty of non-participation.).
61

LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 654 (294) (Since neutrality is an attitude of impartiality, it
excludes such assistance and succor to one of the belligerents as is detrimental to the other, and, further, such
injuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For
neutrals must prevent belligerents from making use of their neutral territories, and of their resources, for military and
naval purposes during the war.).
62

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (The duties of a neutral state may also be
classifiedand frequently are so classifiedas duties of abstention, prevention and acquiesence [sic] (or toleration).
Duties of abstention refer to acts the neutral state itself must refrain from performing; duties of prevention refer to
acts the commission of which within its jurisdiction the neutral is obligated to prevent; and, finally, duties of

940

15.3.2.1 Duty to Refrain From Providing War-Related Goods and Services to

Belligerents. Neutral States have an obligation to refrain from providing war-related goods and
services to belligerents. 63 A neutral State is prohibited from supplying a belligerent State in any
manner, either directly or indirectly, with warships, ammunition, or war material of any kind. 64
The neutral State is also prohibited from providing money or loans to a belligerent State. 65
A neutral State also has a duty to refrain from placing its various governmental agencies
at the disposal of a belligerent in such a way as to aid it directly or indirectly in the prosecution
of the war. 66
Although a neutral State may not supply war-related goods and services to belligerents, a
neutral State is not called upon to prevent the export or transport, on behalf of one or other of the
belligerents, of arms, munitions, or anything that can be of use to an armed force. 67 Commercial
transactions between belligerent States and neutral corporations, companies, citizens, or persons
resident in a neutral State are not prohibited. 68 A belligerent State may purchase from such
corporations, companies, citizens, or persons supplies, munitions, or anything that may be of use
to an armed force, which can be exported or transported without involving the neutral State. 69
acquiescence have reference to neutral obligations to permit belligerent measures of repression against neutral
subjects found rendering certain acts of assistance to an enemy.).
63

Philander C. Knox, Attorney General, NeutralityMilitary SuppliesHorses, Apr. 4, 1902, 24 OPINIONS OF THE
ATTORNEY GENERAL 15, 18 (1903) (One of the rules of international law which seems to be now fully agreed upon
is that a neutral nation shall not give aid to one of the belligerents in the carrying on of the war.).
64

HAGUE XIII art. 6 (The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power,
of war-ships, ammunition, or war material of any kind whatever, is forbidden.).

65

1928 PAN AMERICAN NEUTRALITY CONVENTION art. 16 (The neutral state is forbidden: a) To deliver to the
belligerent, directly or indirectly, or for any reason whatever, ships of war, munitions or any other war material; b)
To grant it loans, or to open credits for it during the duration of war. Credits that a neutral state may give to
facilitate the sale or exportation of its food products and raw materials are not included in this prohibition.).
66

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 208 (As Hyde has observed, the duty to abstain from
giving aid is a broad one and covers a vast field of governmental activities; for in addition to the prohibition against
supplying belligerents with war materials of any kind the neutral is obligated, in general, to abstain from placing its
various governmental agencies at the disposal of a belligerent in such a way as to aid it directly or indirectly in the
prosecution of the war. Thus in naval warfare, the public vessels of a neutral state must refrain from rendering
services of any kind to belligerent naval units at sea.).
67

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 22 (Neutral states are not obligated to prevent
the export or transit at the expense of any one of the belligerents of arms, munitions and in general of anything
which may be useful to their military forces.); HAGUE V art. 7 (A neutral Power is not called upon to prevent the
export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of
anything which can be of use to an army or a fleet.); HAGUE XIII art. 7 (A neutral Power is not bound to prevent
the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could
be of use to an army or fleet.).
68

1956 FM 27-10 (Change No. 1 1976) 527 (Commercial transactions with belligerents by neutral corporations,
companies, citizens, or persons resident in neutral territory are not prohibited.); 1928 PAN AMERICAN MARITIME
NEUTRALITY CONVENTION art. 15 (Of the acts of assistance coming from the neutral states, and the acts of
commerce on the part of individuals, only the first are contrary to neutrality.).
69

1956 FM 27-10 (Change No. 1 1976) 527 (A belligerent may purchase from such persons supplies, munitions,
or anything that may be of use to an army or fleet, which can be exported or transported without involving the
neutral State.).

941

The supply of services and goods to a belligerent State, however, must not convert neutral
territory into a base of operations. 70
If a neutral State prohibits the export or transport of arms, munitions, or anything that can
be of use to an armed force, every measure of restriction or prohibition taken by a neutral State
in regard to the provision of such supplies or munitions must be impartially applied by it to all
belligerent States. 71
15.3.2.2 Duty to Prevent Violations of Neutrality Within Its Jurisdiction. A
neutral State has certain obligations to prevent violations of its neutrality within its territory. A
neutral State has an obligation to prevent violations of its neutrality committed by belligerent
forces. 72 A neutral State also has an obligation to prevent violations of its neutrality committed
by persons within its jurisdiction. 73
15.3.2.3 Public Expressions of Sympathy Are Not Violations of Neutrality. Public
expressions of sympathy for one belligerent or disapproval of another belligerent are not
violations of duties of neutrality. 74
15.3.2.4 Authorized Humanitarian Assistance Is Not a Violation of Neutrality.
Humanitarian assistance given in accordance with international law is also not a violation of
duties of neutrality. 75 For example, a neutral States performing of the role of the Protecting
Power in accordance with the 1949 Geneva Conventions is not regarded as unneutral conduct. 76

70

Refer to 15.5.1 (Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a Belligerent From
Neutral Territory).
71

HAGUE V art. 9 (Every measure of restriction or prohibition taken by a neutral Power in regard to the matters
referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.).

72

HAGUE XIII art. 25 (A neutral Power is bound to exercise such surveillance as the means at its disposal allow to
prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.);
HAGUE V art. 5 (A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its
territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed
on its own territory.).
73
See, e.g., Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V
General Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN
326, 327 (Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals,
there exist certain standards recognized by the American Republics applicable in these circumstances and that in
accordance with them they: ... (b) Shall prevent, in accordance with their internal legislations, the inhabitants of their
territories from engaging in activities capable of affecting the neutral status of the American Republics.); Treaty
between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral Government is
bound Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its
jurisdiction, to prevent any violation of the foregoing obligations and duties.).
74

LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 655 (294) (The required attitude of impartiality is not
incompatible with sympathy with one belligerent, and disapproval of the other, so long as these feelings do not find
expression in actions violating impartiality. Thus, not only public opinion and the press of a neutral State, but also
its Government, may show their sympathy to one party or another without violating neutrality.).

75

LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 655 (294) (Moreover, acts of humanity on the part of
neutrals and their subjects, such as the sending to military hospitals of doctors, medicine, provisions, dressing

942

15.3.3 Correlative or Reciprocal Nature of Rights and Duties Under the Law of
Neutrality. The rights and duties of belligerents and neutrals under the law of neutrality may be
understood as correlative or reciprocal.
The duties of neutrals often correspond to rights of belligerents, and rights of neutrals
often correspond to the duties of belligerents. 77 For example, the duty of a neutral to abstain
from hostilities is also a right of a belligerent not to have its adversary aided in hostilities by the
neutral State. The right of a neutral State to have its territory be inviolable is also a duty of
belligerent States to avoid conducting hostilities in neutral territory.
Similarly, the ability of a neutral to assert its rights may depend on whether it has
fulfilled its corresponding neutral duties. 78 For example, the right of a neutral State to have its
territory be inviolable may not be asserted to the extent it has failed in its duty to ensure that its
territory is not used as a base of operations by a belligerent.
In light of the correlative nature of the rights and duties of belligerents and neutrals under
the law of neutrality, a single rule in the law of neutrality may reflect multiple rights and duties
of both belligerents and neutrals. For example, hostile acts are not to be committed on neutral
territory. This rule involves the right of the neutral State for its territory to be inviolable, and
involves a duty on the part of the neutral State to prevent such acts. This rule also reflects a duty
of the belligerent State to refrain from such acts, and a right of the belligerent State not to have
such acts conducted by an opposing belligerent.
15.4 REMEDIES FOR VIOLATIONS OF NEUTRALITY LAW
15.4.1 Distinction Between Violations of Neutral Duties and the End of Neutral Status.
Violations of neutrality by belligerent or neutral States should be distinguished from the end of a

material, and the like, and the sending of clothes and money to prisoners of war, can never be construed as acts of
partiality, even if these comforts are provided for the wounded and the prisoners of one belligerent only.).
76

LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 269 (2nd ed., 2000) (Frequently, as has been
seen in the discussion concerning protecting powers, a neutral power is appointed to represent the interests of one
belligerent in the territory of the adverse party or for some of its nationals to be appointed to the Fact Finding
Commission called for in Protocol I in relation to the investigation of alleged breaches of the law of armed conflict.
In neither case can a belligerent suggest that such action is in breach of the obligations of neutrality.).

77

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (It is also helpful to observe that the duties
of a neutral correspond to the rights of a belligerent, and that the rights of a neutral correspond to the duties of a
belligerent. The neutrals duty to observe a strict impartiality corresponds to the belligerents right to demand
impartiality on the part of the neutral. At the same time, the neutral has a right to demand that the belligerent will
act toward it in such a manner as to respect its position of impartiality, and there is no question but that the
belligerent is under a duty to do so.).
78

G. SHERSTON BAKER, II HALLECKS INTERNATIONAL LAW 305 (28.1) (1908) (The rights and duties of neutrality
are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State fail
to fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The
rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties
of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral
duties, they are liable to the punishment of being treated in their persons or property as public enemies of the
offended belligerent.).

943

States neutral status. Rather, whether violations of neutrality result in the end of the neutral
status of a State may depend on the national policies of that State and the belligerent States. 79
Acts that are incompatible with the relationship between the neutral State and a
belligerent State under the law of neutrality need not end the neutral States neutrality and bring
that State into the conflict as a belligerent. For example, despite Vichy Frances violations of its
neutral duties during World War II and despite the Allied invasion of French North Africa,
diplomatic relations persisted between the United States and France during World War II. 80
15.4.2 Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to
Prevent Violations of Neutrality. Should the neutral State be unable, or fail for any reason, to
prevent violations of its neutrality by the forces of one belligerent entering or passing through its
territory (including its lands, waters, and airspace), the other belligerent State may be justified in
attacking the enemy forces on the neutral States territory. 81 This view has been reflected in the
military manuals of other States. 82 For example, consistent with the jus ad bellum requirements

79

Refer to 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed
Conflict).
80

DWIGHT D. EISENHOWER, CRUSADE IN EUROPE 86-88 (1997) (Vichy France was a neutral country and during the
entire period of the war the United States had maintained diplomatic connection with the French Government.
Never, in all its history, had the United States been a party to an unprovoked attack upon a neutral country and even
though Vichy was avowedly collaborating with Hitler, there is no doubt that American political leaders regarded the
projected operation, from this viewpoint, with considerable distaste. The Allied invasion of Africa was a most
peculiar venture of armed forces in the field of international politics; we were invading a neutral country to create a
friend.).
81

1956 FM 27-10 (Change No. 1 1976) 520 (Should the neutral State be unable, or fail for any reason, to prevent
violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other
belligerent State may be justified in attacking the enemy forces on this territory.).
82

2004 UK MANUAL 1.43a (Neutral states must refrain from allowing their territory to be used by belligerent
states for the purposes of military operations. If a neutral state is unable or unwilling to prevent the use of its
territory for the purposes of such military operations, a belligerent state may become entitled to use force in selfdefence against enemy forces operating from the territory of that neutral state. Whether or not they are so entitled
will depend on the ordinary rules of the jus ad bellum.); 2006 AUSTRALIAN MANUAL 11.8 (As a general rule of
international law, all acts of hostility in neutral territory, including neutral land, neutral waters and neutral airspace
are prohibited. A neutral state has a duty to prevent the use of its territory as a sanctuary or a base of operations by
the belligerent forces of any side. If the neutral state is unable or unwilling to enforce effectively its right of
inviolability, an aggrieved belligerent may resort to acts of hostility in neutral territory against enemy forces,
including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorised to
act in self-defence when attacked or threatened with attack while in neutral territory or when attacked or threatened
from neutral territory); 2001 CANADIAN MANUAL 1304(3) (A neutral state is permitted to resist any attempted
violation of its borders by force and such resistance does not make the neutral a party to the conflict. If enemy
forces enter neutral such territory and the neutral state is unwilling or unable to intern or expel them, the opposing
party is entitled to attack them there, or to demand compensation from the neutral for this breach of neutrality.);
2002 GERMAN COMMANDERS HANDBOOK: LEGAL BASES FOR THE OPERATIONS OF NAVAL FORCES 232 (On the
one hand, the parties to the conflict are obliged to respect the inviolability of neural [sic] territory, neutral
internal waters, neutral territorial seas and the neutral airspace above these areas. Within and above these areas
all hostilities, that is the use of armed force and of other measures of maritime war (including measures based on the
law of prize) are prohibited. There is one exception to this principle which applies to measures of self-defence,
that is the event that one of the parties to the conflict is attacked or endangered to be attacked in these areas. On the
other hand, a neutral state is obliged to prevent the parties to the conflict from misusing these areas as sanctuary or

944

for self-defense, belligerent forces may act in self-defense when attacked or threatened with
attack from enemy forces unlawfully present in neutral territory, 83 including by taking
appropriate action to counter the use of neutral territory as a base of enemy operations when the
neutral State is unwilling or unable to prevent such violations. 84
15.4.3 Neutral States Use of Force to Defend Its Neutrality. A neutral State may also
engage in self-help to prevent violations of neutrality on its territory. Such self-help is also an
obligation of the neutral State. 85
The fact that a neutral State resists, even by force, attempts to violate its neutrality cannot
be regarded as a hostile act. 86 For example, a State whose territory is adjacent to a theater of war
normally mobilizes a portion of its forces to prevent the forces of either belligerent from entering
its territory, to intern such persons as may be permitted to enter, and generally to carry out its

base of operations. If it is unwilling or unable to do so, the other party to the conflict is entitled to take all
measures necessary to terminate the misuse of neutral territory or neutral waters.).
83

2007 NWP 1-14M 7.3 (If the neutral nation is unable or unwilling to enforce effectively its right of
inviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities
of enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents are
also authorized to act in self-defense when attacked or threatened with attack while in neutral territory or when
attacked or threatened from neutral territory.).
84

For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, Apr. 30, 1970, 1970
PUBLIC PAPERS OF THE PRESIDENTS 405, 406-08 (American policy since then has been to scrupulously respect the
neutrality of the Cambodian people. North Vietnam, however, has not respected that neutrality. For the past 5
yearsas indicated on this map that you see hereNorth Vietnam has occupied military sanctuaries all along the
Cambodian frontier with South Vietnam. Some of these extend up to 20 miles into Cambodia. The sanctuaries are
in red and, as you note, they are on both sides of the border. They are used for hit and run attacks on American and
South Vietnamese forces in South Vietnam. These Communist occupied territories contain major base camps,
training sites, logistics facilities, weapons and ammunition factories, airstrips, and prisoner-of-war compounds.
[T]his is the decision I have made. In cooperation with the armed forces of South Vietnam, attacks are being
launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border. This is not an
invasion of Cambodia. The areas in which these attacks will be launched are completely occupied and controlled by
North Vietnamese forces. Our purpose is not to occupy the areas. Once enemy forces are driven out of these
sanctuaries and once their military supplies are destroyed, we will withdraw.); SPAIGHT, AIR POWER AND WAR
RIGHTS 434 (Justifiable entry of neutral jurisdiction.The international law of neutrality is based on the
principle that neutral States exclude both belligerent parties from entry into or passage through their territory. If that
condition is not fulfilled, to advantage of one party and the detriment of the other, the latter is entitled, after protest,
to take the action necessary to protect his interests. He is entitled to follow his enemy into neutral jurisdiction and to
attack him there. It was for this reasons that Japan was able to justify her action in 1904 in cutting out the Russian
cruiser Reshitelni from the Chinese harbor of Chifu when it became apparent that China was unable or unwilling to
disarm the vessel in accordance with the requirements of international law. It was on the same principle that the
British intervention in Syria in 1941 was justifiable. The Vichy authorities there were allowing German aircraft to
use the Syrian airfields, and such use was particularly damaging to British interests at that time, in view of the revolt
in Iraq.).
85

Refer to 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its Jurisdiction).

86

HAGUE V art. 10 (The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be
regarded as a hostile act.).

945

duties of neutrality. 87 Such military operations are not regarded as hostile acts against the
belligerent State.
15.4.4 Redress of Certain Violations of Neutrality. In addition to the obligations to
prevent violations of neutrality, a State may also have obligations to redress violations of
neutrality that have been committed.
For example, violations of the law of neutrality may result in liability for payment of
damages in certain cases. 88 As a case in point, if harm is caused in a neutral State by the
unauthorized entry of belligerent forces, the offending State may be required, according to the
circumstances, to respond in damages. 89
Similarly, when a ship has been captured in the territorial waters of a neutral State, the
neutral State must employ, if the prize is still within its jurisdiction, the means at its disposal to
release the prize with its officers and crew, and to intern the prize crew. 90 If the prize is no
longer in the jurisdiction of the neutral power, the captor State, on the demand of the neutral
State, must liberate the prize with its officers and crew. 91 The neutral State has a duty to make
this demand. 92
15.5 PROHIBITION ON THE USE OF NEUTRAL TERRITORY AS A BASE OF OPERATIONS
Neutral territory (including neutral lands, waters, and airspace) may not be used as a base
of operations against belligerent forces. 93 For example, belligerent States are forbidden to use a
87

1956 FM 27-10 (Change No. 1 1976) 519 (In order to protect its neutrality, a State whose territory is adjacent to
a theater of war normally mobilizes a portion of its forces to prevent troops of either belligerent from entering its
territory, to intern such as may be permitted to enter, and generally to carry out its duties of neutrality.).
88

Refer to 18.16 (Compensation for Violations of the Law of War).

89

1956 FM 27-10 (Change No. 1 1976) 515 (If harm is caused in a neutral State by the unauthorized entry of a
belligerent, the offending State may be required, according to the circumstances, to respond in damages.).
90

HAGUE XIII art. 3 (When a ship has been captured in the territorial waters of a neutral Power, this Power must
employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and
crew, and to intern the prize crew.).

91

HAGUE XIII art. 3 (If the prize is not in the jurisdiction of the neutral power, the captor Government, on the
demand of that Power, must liberate the prize with its officers and crew.).

92

William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (And whereas the
Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present
concurring therein) did advise and consent to the adherence by the United States to the said Convention with the
reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said
Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship
captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of the
United States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate,
did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;).

93

Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327
(Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordance
with them they: (a) Shall prevent their respective terrestrial, maritime and aerial territories from being utilized as

946

neutral States ports and waters as a base of naval operations against their adversaries, 94 and a
neutral State has a corresponding obligation to prevent such use. 95
The prohibition against the use of neutral territory as a base of operations extends to any
hostile expeditions against a belligerent State, and thus includes such expeditions by non-State
actors. 96 For example, a neutral State has an obligation to prevent the arming of any vessel
within its jurisdiction that is intended to engage in hostile operations against a State with which it
is at peace and to prevent the departure from its jurisdiction of any vessel intended to engage in
hostile operations that has been adapted entirely or partly within such jurisdiction for use in
war. 97
The prohibition on the use of neutral territory as a base of operations includes
prohibitions against (1) outfitting hostile expeditions with supplies and services; (2) recruiting
forces in neutral territory; (3) establishing military communications facilities in neutral territory;
and (4) moving belligerent forces or convoys of military supplies on land.
15.5.1 Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a
Belligerent From Neutral Territory. It is forbidden to permit the use of the neutral States
territory for the fitting out of hostile expeditions.98 As a case in point, a belligerent States
warships may not make use of a neutral States ports, roadsteads, and territorial waters to
bases of belligerent operations.); 1955 NWIP 10-2 442 (Belligerents are forbidden to use neutral territory,
territorial sea, or air space as a base for hostile operations.).
94

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 4 (Under the terms of the preceding article, a
belligerent state is forbidden: a) To make use of neutral waters as a base of naval operations against the enemy, or
to renew or augment military supplies or the armament of its ships, or to complete the equipment of the latter;);
HAGUE XIII art. 5 (Belligerents are forbidden to use neutral ports and waters as a base of naval operations against
their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of
communicating with the belligerent forces on land or sea.).
95

See, e.g., Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral
Government is bound Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the
base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.). Refer to 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its
Jurisdiction).

96

Refer to 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed
Groups Against Other States).
97

HAGUE XIII art. 8 (A neutral Government is bound to employ the means at its disposal to prevent the fitting out
or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in
hostile operations, against a Power with which that Government is at peace. It is also bound to display the same
vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile
operations, which has been adapted entirely or partly within the said jurisdiction for use in war.); Treaty between
the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (A neutral Government is bound First,
to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has
reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and
also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on
war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike
use.).
98

1956 FM 27-10 (Change No. 1 1976) 526 (It is also forbidden to permit the use of its territory for the fitting out
of hostile expeditions.).

947

replenish or increase their supplies of war materials or their armaments, or for completing their
crews. 99
15.5.2 Prohibition Against Recruiting and Forming Corps of Combatants. Units of
combatants may not be formed nor may recruiting agencies be established on the territory of a
neutral State to assist a belligerent State. 100 This means that the establishment of recruiting
agencies, the enlistment of personnel, the formation and organization of hostile expeditions on a
neutral States territory, and the passage across its frontiers of organized bodies of personnel
intending to enlist are prohibited. 101
15.5.2.1 Exception for Authorized Medical Personnel. This prohibition does not
extend to medical personnel and units of voluntary aid societies of a neutral State who are duly
authorized to provide medical assistance to a belligerent State. 102 In no circumstance shall such
assistance by medical personnel and units of voluntary aid societies of the neutral State be
considered as interference in the conflict. 103
15.5.2.2 Exception for Persons Crossing a Neutral States Frontiers Separately to
Assist a Belligerent State. The prohibition against organizing units of combatants is directed
against organized bodies, which only require being armed to become an immediate fighting
force. 104 Thus, the responsibility of a neutral State is not engaged by the fact of persons crossing
the frontier separately to offer their services to one of the belligerent States. 105 Individuals
crossing the frontier singly or in small bands that are unorganized create no obligation on the
neutral State. 106

99

HAGUE XIII art. 18 (Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for
replenishing or increasing their supplies of war material or their armament, or for completing their crews.).
100

HAGUE V art. 4 (Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a
neutral Power to assist the belligerents.).
101

1956 FM 27-10 (Change No. 1 1976) 522b (Application of Rule. The establishment of recruiting agencies, the
enlistment of men, the formation and organization of hostile expeditions on neutral territory, and the passage across
its frontiers of organized bodies of men intending to enlist are prohibited.); Consultative Meeting of Foreign
Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of the
American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American
Republics resolve [t]o declare that with regard to their status as neutrals, there exist certain standards recognized by
the American Republics applicable in these circumstances and that in accordance with them they: ... (c) Shall
prevent on their respective territories the enlistment of persons to serve in the military, naval, or air forces of the
belligerents;).
102

1956 FM 27-10 (Change No. 1 1976) 522c (This prohibition does not extend to medical personnel and units of
a voluntary aid society duly authorized to join one of the belligerents. (See GWS, art. 27; par. 229 herein.)).
103

Refer to 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

104

1956 FM 27-10 (Change No. 1 1976) 524a (The prohibition in Article 4, H. V (par. 522), is directed against
organized bodies which only require to be armed to become an immediate fighting force.).
105

HAGUE V art. 6 (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.).

106

1956 FM 27-10 (Change No. 1 1976) 524a (Individuals crossing the frontier singly or in small bands that are
unorganized create no obligation on the neutral State.).

948

Neutral States shall not oppose the voluntary departure of nationals of belligerent States
even though they leave simultaneously in great numbers; but they may oppose the voluntary
departure of their own nationals going to enlist in the armed forces of belligerent States. 107
Neutral States are not required to enact legislation forbidding their nationals to join the armed
forces of belligerent States. 108
Neutral States, however, may not send regularly constituted military units across the
frontier in the guise of volunteers or small unorganized bands. 109
15.5.3 Prohibition Against Establishment or Use of Belligerent Communications
Facilities in Neutral Territory. Belligerent States are prohibited from erecting on the territory of
a neutral State any apparatus for the purpose of communicating with belligerent forces on land or
sea. 110 Belligerent States are prohibited from using any installation of this kind established by
them before the armed conflict on the territory of a neutral State for purely military purposes,
and which has not been opened for the service of public messages. 111
15.5.3.1 Use of Neutral Facilities by Belligerents Not Prohibited. A neutral State
does not, however, have to forbid or restrict the use on behalf of belligerent States of
communications equipment and facilities belonging to the neutral State, or belonging to
companies or private individuals. 112
That a neutral State, if it so desires, may transmit messages by means of its
communications facilities does not imply that the neutral State may use such facilities or permit

107

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 23 (Neutral states shall not oppose the voluntary
departure of nationals of belligerent States even though they leave simultaneously in great numbers; but they may
oppose the voluntary departure of their own nationals going to enlist in the armed forces.).
108

1956 FM 27-10 (Change No. 1 1976) 524a (Neutral States are not required to enact legislation forbidding their
nationals to join the armed forces of the belligerents.).
109

1956 FM 27-10 (Change No. 1 1976) 524a (The foregoing rules do not, however, permit a State professing to
be neutral to send regularly constituted military units across the frontier in the guise of volunteers or small
unorganized bands.).
110

HAGUE V art. 3 (Belligerents are likewise forbidden to: (a.) Erect on the territory of a neutral Power a wireless
telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;);
HAGUE XIII art. 5 (Belligerents are forbidden to use neutral ports and waters as a base of naval operations against
their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of
communicating with the belligerent forces on land or sea.); 1928 PAN AMERICAN MARITIME NEUTRALITY
CONVENTION art. 4 (Under the terms of the preceding article, a belligerent state is forbidden: b) To install in
neutral waters radio-telegraph stations or any other apparatus which may serve as a means of communication with
its military forces, or to make use of installations of this kind it may have established before the war and which may
not have been opened to the public.).
111

HAGUE V art. 3 (Belligerents are likewise forbidden to: ... (b.) Use any installation of this kind established by
them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened
for the service of public messages.).
112

HAGUE V art. 8 (A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of
telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private
individuals.).

949

their use to lend assistance to the belligerents on one side only. 113 Every measure of restriction
or prohibition taken by a neutral State in regard to the use of its communications facilities and
equipment must be impartially applied by it to all belligerent States. 114 It also must see to the
same obligation being observed by companies or private individuals owning such
communication equipment and facilities. 115
15.5.4 Movement of Belligerent Forces and Convoys of Supplies Through Neutral Land
Territory. Belligerent States are forbidden to move forces or convoys of either munitions of war
or supplies across the land territory of a neutral State. 116 This rule only prohibits the official acts
of a belligerent State in convoying or shipping munitions and supplies through a neutral State as
part of an expedition; it does not prohibit the shipment of such supplies by private persons. 117
However, a neutral State may authorize passage through its territory of the wounded and
sick, including the overflight of its territory by certain medical aircraft. 118
15.6 NEUTRAL PERSONS
15.6.1 Definition of Neutral Person. The nationals of a State that is not taking part in the
war are considered neutral persons. 119
15.6.2 Forfeiture of Protections of Neutral Status by a Neutral Person. A national of a
neutral State would not retain the protections that a person would derive by virtue of the neutral
status of his or her State of nationality if that person commits:

hostile acts against a belligerent State; or

acts in favor of a belligerent State, particularly if that person voluntarily enlists in the
ranks of the armed forces of one of the parties to the armed conflict. 120

113

1956 FM 27-10 (Change No. 1 1976) 530 (The liberty of a neutral State, if it so desires, to transmit messages
by means of its telegraph, telephone, cable, radio, or other communications facilities does not imply the power so to
use them or to permit their use as to lend assistance to the belligerents on one side only.).
114

HAGUE V art. 9 (Every measure of restriction or prohibition taken by a neutral Power in regard to the matters
referred to in Articles 7 and 8 must be impartially applied by it to both belligerents.).

115

HAGUE V art. 9 (A neutral Power must see to the same obligations being observed by companies or private
individuals owning telegraph or telephone cables or wireless telegraphy apparatus.).

116

HAGUE V art. 2 (Belligerents are forbidden to move troops or convoys of either munitions of war or supplies
across the territory of a neutral Power.).
117

1956 FM 27-10 (Change No. 1 1976) 517 (A distinction must be drawn between the official acts of the
belligerent State in convoying or shipping munitions and supplies through neutral territory as part of an expedition
and the shipment of such supplies by private persons. The former is forbidden while the latter is not.).
118

Refer to 15.18 (Authorized Passage of Wounded and Sick Combatants Through Neutral Territory).

119

HAGUE V art. 16 (The nationals of a State which is not taking part in the war are considered as neutrals.).

120

HAGUE V art. 17 (A neutral cannot avail himself of his neutrality: (a.) If he commits hostile acts against a
belligerent; (b.) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of the
armed force of one of the parties.).

950

For example, neutral persons who materially support one belligerent generally forfeit
their neutral character or assume certain liabilities with respect to the other belligerent. 121
15.6.2.1 No More Severe Treatment Than Nationals of an Opposing Belligerent
State. A neutral person, however, shall not be more severely treated by the belligerent State as
against whom that person has abandoned his or her neutrality than a national of the other
belligerent State could be for the same act. 122
Although a neutral person who takes certain actions may be liable to treatment as an
unprivileged belligerent, the forfeiture of neutral protections does not necessarily result in that
person being regarded as an unprivileged belligerent.
For example, if a national of a neutral State is a member of the armed forces of a
belligerent State, that person would be entitled to all the protections that a member of the armed
forces of the belligerent State would enjoy under the law of war, such as POW status if that
person falls into the power of the enemy during international armed conflict. 123
15.6.2.2 Acts Not Considered in Favor of a Belligerent That Would Forfeit
Protections of Neutral Status. The followings acts would not be considered as committed in
favor of a belligerent State that would forfeit a neutral persons protections of neutral status:

furnishing supplies or making loans to a belligerent State, provided that the person who
furnishes the supplies or who makes the loans lives neither in the territory of the
belligerent State nor in the territory occupied by it, and that the supplies do not come
from these territories; or

rendering services in matters of police or civil administration. 124

In addition, merely expressing sympathy for a belligerents cause would not cause a
person to forfeit ones neutral character, although incitement or recruitment would be treated
differently.
121

See also LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 656 (296) (International Law is primarily a law
between States. For this reason the rights and duties of neutrality are principally those of neutral States as such.
At the same time, International Law renders unlawful certain activities of nationals of neutral States, like carriage of
contraband or breach of blockade, without, however, imposing upon these States the duty to prevent or penalise such
acts. These are punished by the belligerent against whom they are directed.); GREENSPAN, THE MODERN LAW OF
LAND WARFARE 571 (A neutral subject who indulges in partisan activity in favor of a belligerent usually loses the
benefit of his neutral character in relation to the belligerent on the other side, as will be seen shortly. Therefore,
while a neutral person is free to assist a belligerent, he generally does so at his own risk.).
122

HAGUE V art. 17 (In such a case, the neutral shall not be more severely treated by the belligerent as against
whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.).

123

Refer to 4.4.4.1 (Nationals of Neutral States in Enemy Forces).

124

HAGUE V art. 18 (The following acts shall not be considered as committed in favour of one belligerent in the
sense of Article 17, letter (b): (a.) Supplies furnished or loans made to one of the belligerents, provided that the
person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the
territory occupied by him, and that the supplies do not come from these territories; (b.) Services rendered in matters
of police or civil administration.).

951

Certain types of humanitarian assistance under the 1949 Geneva Conventions would also
not be regarded as a violation of neutrality by the persons engaging in those activities. 125
15.6.3 Neutral Persons in the Home Territory of a Belligerent. Neutral persons in the
home territory of a belligerent State are not protected persons under the GC while their State of
nationality has normal diplomatic relations with the belligerent State. 126
In general, neutral persons residing permanently in the territory of a belligerent State,
whether protected persons or not, are to a great extent regarded, both by that belligerent and the
opposing side, like other residents of that territory, so long as they remain there. 127 By contrast,
the neutral person who is a transient visitor in the territory of a belligerent is provided particular
respect, so far as the hazards of war permit, and provided that the persons actions are consistent
with that persons neutral character. 128
15.6.4 Neutral Persons Resident in Occupied Territory. Neutral persons resident in
occupied territory are not entitled to claim different treatment, in general, from that accorded the
other inhabitants. 129 They must refrain from all participation in the war and from all hostile acts,
and must observe strictly the rules of the Occupying Power. 130
All nationals of neutral States, whether resident in or temporarily visiting an occupied
territory, may be punished for offenses committed by them to the same extent and in the same
manner as enemy nationals. 131 In addition, it may be possible to extradite nationals of neutral
States who have committed offenses to their home States for prosecution. If nationals of neutral
States are not protected persons, they may be deported or expelled for just cause. 132

125

Refer to 4.12 (Staff of a Recognized Aid Society of a Neutral Country); 7.12.1.3 (Authorized Neutral Civilian
Hospital Ships).
126

Refer to 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic
Representation Exists).
127

GREENSPAN, THE MODERN LAW OF LAND WARFARE 575 (In general, neutrals residing permanently in the
territory of a belligerent, whether protected persons or not, are to a great extent regarded, both by that belligerent
and the opposing side, as sharing the lot and character of the people among whom they reside, so long as they
continue there.).

128

GREENSPAN, THE MODERN LAW OF LAND WARFARE 577-78 (The neutral who is merely a transient visitor in the
territory of a belligerent falls into a different category from the resident neutral; provided, of course, that his actions
are consistent with his neutral character. Both his person and his property are entitled to particular respect from the
belligerents, so far as the hazards of war permit.).
129

1956 FM 27-10 (Change No. 1 1976) 548 (Neutral persons resident in occupied territory are not entitled to
claim different treatment, in general, from that accorded the other inhabitants.).
130

1956 FM 27-10 (Change No. 1 1976) 548 (They must refrain from all participation in the war, from all hostile
acts, and observe strictly the rules of the occupant.).
131

1956 FM 27-10 (Change No. 1 1976) 550 (All nationals of neutral powers, whether resident or temporarily
visiting an occupied territory, may be punished for offenses committed by them to the same extent and in the same
manner as enemy nationals.).
132

1958 UK MANUAL 691 note 1 (If such neutrals are not protected persons then they may be expelled or
deported for just cause by the military or civil authorities of the Occupant.).

952

In the event that such a person is arrested, suspicions must be verified by a serious
inquiry, and the arrested neutral person must be given an opportunity to present a defense, and to
communicate with his or her national consul if requested. 133 In addition, the minimum standards
for humane treatment and for detention procedures would be applicable. 134
15.6.4.1 Protected Person Status of Neutral Persons in Occupied Territory.
Neutral persons, among other persons, who find themselves in the hands of an Occupying Power
generally would be regarded as protected persons under the GC. 135 Neutral persons who travel
to occupied territory for the purpose of fighting the Occupying Power are not regarded as
protected persons under the GC. 136
15.6.4.2 Diplomatic Agents and Consular Personnel in Occupied Territory.
Diplomatic agents of neutral States must be treated with all courtesy and must be permitted such
freedom of action as it is possible to allow, with due regard to the necessities of the war. The
same is true of consular personnel of neutral States, except those who are enemy nationals. 137

133

In the Matter of the Claim of Madame Chevreau Against the United Kingdom, Arbitral Award, reprinted in 27
AJIL 153, 160 (1933) (The principles involved in the present case which, among others, have been applied by
different international commissions, may be briefly stated as follows: (1) The arbitrary arrest, detention or
deportation of a foreigner may give rise to a claim in international law. But the claim is not justified if these
measures were taken in good faith and upon reasonable suspicion, especially if a zone of military operations is
involved. (2) In cases of arrest, suspicions must be verified by a serious inquiry, and the arrested person given an
opportunity to defend himself against the suspicions directed against him, and particularly to communicate with the
consul of his country if he requests it. If there is no inquiry, or if it is unnecessarily delayed, or, in general, if the
detention is unnecessarily prolonged, there is ground for a claim.).
134

Refer to 8.2 (Humane Treatment of Detainees); 8.14 (Procedures for Detention).

135

See Jack L. Goldsmith III, Assistant Attorney General, Protected Person Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 45 (Second,
territory of a belligerent State might refer to the home territory of the party to the conflict in whose hands the
citizen of the neutral State finds himself. As applied to the armed conflict with Iraq, this interpretation would deny
protected person[] status to citizens of neutral States who find themselves in the territory of the United States, but
not to those who find themselves in occupied Iraq. We conclude that the second interpretation is correct.)
(amendment in original). See also II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 793
(A particularly delicate question was that of the position of the nationals of neutral States. The Drafting Committee
had made a distinction between the position of neutrals in the home territory of belligerents and that of neutrals in
occupied territory. In the former case, neutrals were protected by normal diplomatic representation; in the latter
case, on the other hand, the diplomatic representatives concerned were only accredited to the Government of the
occupied States, whereas authority rested with the Occupying Power. It followed that all neutrals in occupied
territory must enjoy protection under the Convention, while neutrals in the home territory of a belligerent only
required such protection if the State whose nationals they were had no normal diplomatic representation in the
territory in question. The text drawn up by the Drafting Committee had taken account of the above
considerations.).
136

Refer to 10.3.2.1 (Find Themselves).

137
1956 FM 27-10 (Change No. 1 1976) 549 (Diplomatic agents of neutral States must be treated with all courtesy
and must be permitted such freedom of action as it is possible to allow, with due regard to the necessities of the war.
The same is true of consular personnel of neutral States, except those who are enemy nationals.).

953

15.7 NEUTRAL WATERS

Belligerent States are forbidden to use a neutral States ports and waters as a base of
naval operations against their adversaries, and in particular to erect or employ any apparatus for
communicating with belligerent forces on land or sea. 138 For example, a belligerent States
warships may not make use of a neutral States ports, roadsteads, and territorial waters to
replenish or increase their supplies of war materials or their armaments, or for completing their
crews. 139
Belligerent State forces must refrain from acts of hostility in neutral waters, including the
exercise of visit and search. 140
The neutral State has an affirmative duty to police its waters to prevent violations of
neutrality in its waters. 141 If a neutral State is unable or unwilling to detect and expel belligerent
forces unlawfully present in its waters, the opposing belligerent State may undertake such selfhelp enforcement actions as may be necessary to terminate the violation of neutrality.
15.7.1 Waters That Are Considered Neutral. The waters that are subject to the
sovereignty of a neutral State are considered neutral. Neutral waters may be understood to
include the following waters belonging to a neutral State:

the territorial sea, including up to 12 nautical miles; 142

archipelagic waters; 143 and

ports, roadsteads, and internal waters. 144

For the purpose of applying the law of neutrality, all ocean areas not subject to the
territorial sovereignty of any State (i.e., all waters seaward of neutral States territorial seas) are
not considered neutral waters. The following waters are not considered neutral waters:

a neutral States contiguous zone; 145

138

HAGUE XIII art. 5 (Belligerents are forbidden to use neutral ports and waters as a base of naval operations
against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of
communicating with the belligerent forces on land or sea.).

139

HAGUE XIII art. 18 (Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for
replenishing or increasing their supplies of war material or their armament, or for completing their crews.).
140

Refer to 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

141

Hague XIII art. 25 (A neutral Power is bound to exercise such surveillance as the means at its disposal allow to
prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.).
142

Refer to 13.2.2.2 (Territorial Seas).

143

Refer to 13.2.2.3 (Archipelagic Waters).

144

Refer to 13.2.2.1 (Internal Waters).

145

Refer to 13.2.3.2 (Contiguous Zones).

954

a neutral States exclusive economic zone; 146 and

the high seas. 147

15.7.2 A Neutral States Regulations Concerning Belligerent Warships and Prizes in Its
Waters. A neutral State may adopt laws or regulations governing the presence of belligerent
warships and their prizes in its waters.
A neutral State must apply impartially to opposing belligerents the conditions,
restrictions, or prohibitions made by the neutral State in regard to the admission into its ports,
roadsteads, or territorial waters, of belligerent warships or of their prizes. 148 Nevertheless, a
neutral Power may forbid a belligerent vessel that has failed to conform to the orders and
regulations made by it, or that has violated neutrality, to enter its ports or roadsteads. 149
15.7.3 24-Hour Limit on Stay of Belligerent Warships in Neutral Waters. In the absence
of special provisions to the contrary in the legislation of a neutral State, a belligerent States
warships are generally prohibited from remaining in that neutral States ports, roadsteads, or
territorial waters for more than 24 hours. 150
A belligerent warship may not prolong its stay in a neutral port beyond the permissible
time except on account of damage or stress of weather. It must depart as soon as the cause of the
delay is at an end. 151
The regulations as to the question of the length of time that these vessels may remain in
neutral ports, roadsteads, or waters, do not apply to warships devoted exclusively to religious,

146

Refer to 13.2.3.3 (Exclusive Economic Zones (EEZs)).

147

Refer to 13.2.3.4 (High Seas).

148

HAGUE XIII art. 9 (A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or
prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent warships or of their prizes.).

149

HAGUE XIII art. 9 (Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to
the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads.).

150

HAGUE XIII art. 12 (In the absence of special provisions to the contrary in the legislation of a neutral Power,
belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for
more than twenty-four hours, except in cases covered by the present Convention.); 1928 PAN AMERICAN
NEUTRALITY CONVENTION art. 5 (Belligerent warships are forbidden to remain in the ports or waters of a neutral
state more than twenty-four hours. This provision will be communicated to the ship as soon as it arrives in port or in
the territorial waters, and if already there at the time of the declaration of war, as soon as the neutral state becomes
aware of this declaration.).
151

HAGUE XIII art. 14 (A belligerent war-ship may not prolong its stay in a neutral port beyond the permissible
time except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at an
end.). See also 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 5 (A ship may extend its stay in port more
than twenty-four hours in case of damage or bad conditions at sea, but must depart as soon as the cause of the delay
has ceased. When, according to the domestic law of the neutral state, the ship may not receive fuel until twenty-four
hours after its arrival in port, the period of its stay may be extended an equal length of time.).

955

scientific, or philanthropic purposes. 152 Warships engaged in the collection of scientific data of
potential military application would not be considered to be devoted exclusively to scientific
purposes and would not be exempt. 153
15.7.3.1 Notification to Belligerent Warships to Depart a Neutral States Waters
Upon Outbreak of Hostilities. If a neutral State, which has been informed of the outbreak of
hostilities, learns that a belligerent States warship is in one of the neutral States ports or
roadsteads, or in its territorial waters, it must notify such warship to depart within 24 hours or
within the time prescribed by local regulations. 154
15.7.4 Passage of Belligerent Warships and Prizes Through a Neutral States Waters. A
neutral State may allow the passage of belligerent warships and prizes through its waters. The
neutrality of a State is not affected by the mere passage through its territorial waters of warships
or prizes belonging to belligerents. 155
A neutral State may, on a nondiscriminatory basis, suspend passage of belligerent
warships and prizes through its waters (with the exception of international straits and
archipelagic sea lanes). 156
Although the general practice has been to close neutral territorial seas to belligerent
submarines, a neutral State may elect to allow passage of submarines provided they do not
engage in hostile acts while in territorial waters. 157
Neutral States customarily authorize passage through their territorial sea of ships carrying
the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed to
belligerent vessels. 158

152

HAGUE XIII art. 14 (The regulations as to the question of the length of time which these vessels may remain in
neutral ports, roadsteads, or waters, do not apply to war-ships devoted exclusively to religious, scientific, or
philanthropic purposes.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (Vessels used
exclusively for scientific, religious, or philanthropic purposes are exempted from the foregoing provisions.).
153

2007 NWP 1-14M 7.3.2.1 (Warships engaged in the collection of scientific data of potential military
application are not exempt.); 1997 NWP 9 7.3.2.1 (same); 1989 NWP 9 7.3.2.1 (Vessels engaged in the
collection of scientific data of potential military application are not exempt).
154

HAGUE XIII art. 13 (If a Power which has been informed of the outbreak of hostilities learns that a belligerent
war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within
twenty-four hours or within the time prescribed by local regulations.).

155

HAGUE XIII art. 10 (The neutrality of a Power is not affected by the mere passage through its territorial waters
of war-ships or prizes belonging to belligerents.).

156

2007 NWP 1-14M 7.3.4 (A neutral nation may, on a nondiscriminatory basis, suspend passage of belligerent
warships and prizes through its territorial seas, except in international straits.); 1997 NWP 9 7.3.4 (same); 1989
NWP 9 7.3.4.1 (A neutral nation may, on a nondiscriminatory basis, close its territorial waters, except in
international straits, to belligerent vessels.).
157

2007 NWP 1-14M 7.3.4 (Although the general practice has been to close neutral territorial seas to belligerent
submarines, a neutral nation may elect to allow passage of submarines.); 1997 NWP 9 7.3.4 (same); 1989 NWP 9
7.3.4.1 (Although the general practice has been to close neutral territorial waters to belligerent submarines, a
neutral nation may elect to allow passage of submarines, either surfaced or submerged.).

956

15.7.4.1 Right of Entry in Distress for Belligerent Vessels. Belligerent vessels,

including warships, have a right of entry in distress whether caused by force majeure or damage
resulting from enemy action. 159 The right of entry in distress does not prejudice the measures
that a neutral State may take after entry has been granted, such as measures to intern the ship if it
remains when it is not entitled to remain. 160
15.8 PASSAGE OF BELLIGERENT VESSELS AND AIRCRAFT THROUGH INTERNATIONAL STRAITS AND
ARCHIPELAGIC SEA LANES
Although a neutral State may suspend the passage of belligerent warships through its
waters, a neutral State may not suspend, hamper, or otherwise impede the access of belligerent
vessels and aircraft through international straits overlapped by neutral waters or archipelagic sea
lanes of a neutral State.
Belligerent vessels and aircraft transiting through international straits overlapped by
neutral waters or archipelagic sea lanes of a neutral State must adhere to certain requirements.
15.8.1 Passage of Belligerent Vessels and Aircraft Through International Straits
Overlapped by Neutral Waters. All ships and aircraft (including those belonging to belligerent
and neutral States) have a right of transit passage through, over, and under all straits used for
international navigation. 161 Such passage by vessels carrying contraband of war or by belligerent
warships is not regarded as compromising the neutrality of the State with water overlapping such
straits. 162 Neutral States bordering international straits may not suspend, hamper, or otherwise
impede the right of transit passage through international straits. 163

158

2007 NWP 1-14M 7.3.4 (Neutral nations customarily authorize passage through their territorial sea of ships
carrying the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed to belligerent
vessels.); 1997 NWP 9 7.3.4 (same); 1989 NWP 9 7.3.4.1 (same).
159

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 240 (It is generally recognized, however, that
international practice requires that exception be made in the neutrality regulations of states to permit the entry of
belligerent warships in distress. Entry in distress may result from weather or sea conditions, but it may also result
from damage incurred in battle. Even pursuit by the enemy appears to give belligerent warships a right of entry.
But this right of entry in distress cannot be held to prejudice the measures a neutral state may take once admission
into its waters and ports has been granted.).

160

Refer to 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a
Neutral Port).
161

See 2007 NWP 1-14M 7.3.6 (Customary international law as reflected in the 1982 LOS Convention provides
that belligerent and neutral surface ships, submarines, and aircraft have a right of transit passage through, over, and
under all straits used for international navigation.). Consider LOS CONVENTION art. 38(1) (In straits referred to in
article 37 [i.e., straits that are used for international navigation between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic zone], all ships and aircraft enjoy the
right of transit passage, which shall not be impeded.).
162

The S.S. Wimbledon, (United Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1,
at 28 (The precedents therefore afforded by the Suez and Panama Canals invalidate in advance the argument that
Germany's neutrality would have necessarily been imperilled [sic] if her authorities had allowed the passage of the
Wimbledon through the Kiel Canal, because that vessel was carrying contraband of war consigned to a state then
engaged in an armed conflict. Moreover they are merely illustrations of the general opinion according to which
when an artificial waterway connecting two open seas has been permanently dedicated to the use of the whole

957

Belligerent forces transiting through international straits overlapped by neutral waters

must proceed without delay, must refrain from the threat or use of force against the neutral State,
and must otherwise refrain from acts of hostility and other activities not incident to their
transit. 164 For example, belligerent forces must refrain from exercising the right of visit and
search while transiting through international straits that are overlapped by neutral waters. 165
Belligerent forces in transit may, however, take defensive measures consistent with their
security, including the launching and recovery of military devices, screen formation steaming,
and acoustic and electronic surveillance, and may respond in self-defense to a hostile act or a
demonstration of hostile intent. 166
15.8.2 Passage of Belligerent Vessels and Aircraft Through Archipelagic Sea Lanes of a
Neutral State. Belligerent ships or aircraft, including surface warships, submarines, and military
aircraft, retain the right of unimpeded archipelagic sea 167 lanes passage through, under, and over
neutral archipelagic sea lanes. 168 Neutral archipelagic States shall not suspend or hamper the
right of transit passage through their archipelagic sea lanes. 169

world, such waterway is assimilated to natural straits in the sense that even the passage of a belligerent man-of-war
does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.).
163

2007 NWP 1-14M 7.3.6 (Neutral nations cannot suspend, hamper, or otherwise impede this right of transit
passage through international straits.). Consider LOS CONVENTION art. 44 (States bordering straits shall not
hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over
the strait of which they have knowledge. There shall be no suspension of transit passage.).
164

2007 NWP 1-14M 7.3.6 (Belligerent forces transiting through international straits overlapped by neutral waters
must proceed without delay, must refrain from the threat or use of force against the neutral nation, and must
otherwise refrain from acts of hostility and other activities not incident to their transit.). Consider LOS
CONVENTION art. 39(1) (Ships and aircraft, while exercising the right of transit passage, shall: (a) proceed without
delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial
integrity or political independence of States bordering the strait, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than those
incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or
by distress.).
165

Refer to 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

166

2007 NWP 1-14M 7.3.6 (Belligerent forces in transit may, however, take defensive measures consistent with
their security, including the launching and recovery of military devices, screen formation steaming, and acoustic and
electronic surveillance, and may respond in self-defense to a hostile act or hostile intent.).
167

Refer to 13.2.2.3 (Archipelagic Waters).

168

2007 NWP 1-14M 7.3.7 (Belligerent ships or aircraft, including surface warships, submarines and military
aircraft, retain the right of unimpeded archipelagic sea lanes passage through, under, and over neutral archipelagic
sea lanes.). Consider LOS CONVENTION art. 53(2) (All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.).
169

Consider LOS CONVENTION art. 54 (Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes
passage.); LOS CONVENTION art. 44 (States bordering straits shall not hamper transit passage and shall give
appropriate publicity to any danger to navigation or overflight within or over the strait of which they have
knowledge. There shall be no suspension of transit passage.).

958

Belligerent State forces exercising the right of archipelagic sea lanes passage must refrain
from acts of hostility and other activities not incident to their transit. 170 For example, belligerent
State forces must refrain from exercising the right of visit and search while exercising the right
of archipelagic sea lanes passage. 171 Belligerent State forces exercising the right of archipelagic
sea lanes passage may, however, engage in those activities that are incident to their normal mode
of continuous and expeditious passage, and that are consistent with their security, including
formation steaming, acoustic and electronic surveillance, and the launching and recovery of
military devices. 172
15.9 ADDITIONAL RULES APPLICABLE TO NEUTRAL PORTS, ROADSTEADS, AND INTERNAL
WATERS
In addition to the general rules applicable to neutral waters, 173 certain other rules apply to
neutral ports, roadsteads, and internal waters.
15.9.1 Maximum Number of Belligerent Warships in One Neutral Port or Roadstead. In
the absence of special provisions to the contrary in the legislation of a neutral State, the
maximum number of warships belonging to a belligerent that may be in one of the ports or
roadsteads of that neutral State simultaneously is three. 174

170

Consider LOS CONVENTION art. 54 (Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes
passage.); LOS CONVENTION art. 39 (Ships and aircraft, while exercising the right of transit passage, shall: (a)
proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty,
territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the
principles of international law embodied in the Charter of the United Nations; (c) refrain from any activities other
than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force
majeure or by distress.).
171

Refer to 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

172

2007 NWP 1-14M 7.3.7 (Belligerent forces exercising the right of archipelagic sea lanes passage may engage
in those activities that are incident to their normal mode of continuous and expeditious passage and are consistent
with their security, including formation steaming, acoustic and electronic surveillance, and the launching and
recovery of military devices.). Consider LOS CONVENTION art. 53(3) (Archipelagic sea lanes passage means the
exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for
the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic zone.).
173

Refer to 15.7 (Neutral Waters).

174

See Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327
(Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordance
with them they: ... (d) May determine, with regard to belligerent warships, that not more than three at a time be
admitted in their own ports or waters and in any case they shall not be allowed to remain for more than twenty-four
hours. Vessels engaged exclusively in scientific, religious or philanthropic missions may be exempted from this
provision, as well as those which arrive in distress.); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 7 (In the
absence of a special provision of the local legislation, the maximum number of ships of war of a belligerent which
may be in a neutral port at the same time shall be three.); HAGUE XIII art. 15 (In the absence of special provisions
to the contrary in the legislation of a neutral Power, the maximum number of war-ships belonging to a belligerent
which may be in one of the ports or roadsteads of that Power simultaneously shall be three.).

959

15.9.2 Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to
Remain in a Neutral Port. If, notwithstanding the notification of the neutral State, a belligerent
ship of war does not leave a port where it is not entitled to remain, the neutral State is entitled to
take such measures as it considers necessary to render the ship incapable of taking to sea during
the war, and the commanding officer of the ship must facilitate the execution of such
measures. 175
When a belligerent ship is detained by a neutral Power, the officers and crew are likewise
detained. 176
The officers and crew thus detained may be left in the ship or kept either on another
vessel or on land, and may be subjected to the measures of restriction that may appear necessary
to impose upon them. A sufficient number of persons for looking after the vessel must, however,
always be left on board. The officers may be left at liberty on giving their word not to quit the
neutral territory without permission. 177
15.9.3 Departure of Belligerent Warships in Relation to the Departure of Ships of the
Opposing Belligerent. When warships of opposing belligerent States are present simultaneously
in a neutral States port or roadstead, a period of not less than 24 hours must elapse between the
departure of the respective enemy warships. 178 The order of departure is determined by the order
of arrival, unless the ship that arrived first is in such circumstances that an extension of its stay is
permissible. 179

175

HAGUE XIII art. 24 (If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not
leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers
necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must
facilitate the execution of such measures.); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 6 (The ship
which does not conform to the foregoing rules may be interned by order of the neutral government. A ship shall be
considered as interned from the moment it receives notice to that effect from the local neutral authority, even though
a petition for reconsideration of the order has been interposed by the transgressing vessel, which shall remain under
custody from the moment it receives the order.).
176

HAGUE XIII art. 24 (When a belligerent ship is detained by a neutral Power, the officers and crew are likewise
detained.).

177

HAGUE XIII art. 24 (The officers and crew thus detained may be left in the ship or kept either on another vessel
or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them.
A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may
be left at liberty on giving their word not to quit the neutral territory without permission.). Refer to 15.16.4
(Parole of Belligerent Personnel Interned in Neutral Territory).
178

See 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (A ship of war may not depart from a neutral port
within less than twenty-four hours after the departure of an enemy warship.); HAGUE XIII art. 16 (When war-ships
belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than
twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of
the ship belonging to the other.).
179

1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (The one entering first shall depart first, unless it is in
such condition as to warrant extending its stay.); HAGUE XIII art. 16 (The order of departure is determined by the
order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible.).

960

A belligerent warship may not leave a neutral port or roadstead until 24 hours after the
departure of a merchant ship flying the flag of its adversary. 180
15.9.4 Supplies and Repairs of Belligerent Warships in Neutral Ports and Roadsteads.
15.9.4.1 Food and Fuel for Belligerent Warships in Neutral Ports and
Roadsteads. A neutral State has discretion to issue and implement regulations regarding the
supply of food and supplies for belligerent warships in its territory. 181 However, such
regulations must be applied impartially among belligerent States. 182
A belligerent States warships may take on food supplies and provisions in a neutral
States ports and roadsteads, but only to bring up their supplies to the peacetime standard. 183
Similarly, a belligerent States warship may only take on sufficient fuel to enable it to
reach the nearest port in its own country. 184 The belligerent States warship may, however, fill
up its bunkers built to carry fuel when the neutral State has adopted this method of determining
the amount of fuel to be supplied. 185
15.9.4.2 Repairs of Belligerent Warships in a Neutral States Ports and
Roadsteads. A belligerent States warships may only carry out such repairs in a neutral States
ports and roadsteads as are absolutely necessary to render the warships seaworthy; they may not
add to or repair weapons systems, or enhance any other aspect of their war fighting capability. 186
The neutral State shall decide what repairs are necessary to restore seaworthiness; repairs must
be accomplished with the least possible delay. 187
180

HAGUE XIII art. 16 (A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours
after the departure of a merchant-ship flying the flag of its adversary.).
181

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 10 (Belligerent warships may supply
themselves with fuel and stores in neutral ports, under the conditions especially established by the local authority
and in case there are no special provisions to that effect, they may supply themselves in the manner prescribed for
provisioning in time of peace.).

182

Refer to 15.7.2 (A Neutral States Regulations Concerning Belligerent Warships and Prizes in Its Waters).

183

HAGUE XIII art. 19 (Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their
supplies to the peace standard.).
184

HAGUE XIII art. 19 (Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port
in their own country.).
185

HAGUE XIII art. 19 (They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral
countries which have adopted this method of determining the amount of fuel to be supplied.).

186

HAGUE XIII art. 17 (In neutral ports and roadsteads belligerent war-ships may only carry out such repairs as are
absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force.);
1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (Damaged belligerent ships shall not be
permitted to make repairs in neutral ports beyond those that are essential to the continuance of the voyage and which
in no degree constitute an increase in its military strength.).
187

HAGUE XIII art. 17 (The local authorities of the neutral Power shall decide what repairs are necessary, and these
must be carried out with the least possible delay.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art.
9 (The neutral state shall ascertain the nature of the repairs to be made and will see that they are made as rapidly as
possible.).

961

If the 1928 Pan American Maritime Neutrality Convention is applicable, then damage
found to have been produced by the enemys fire must not be repaired. 188 However, whether
such repairs are prohibited by customary international law is less clear. 189 Some States have
allowed such repairs provided they are limited to rendering the ship sufficiently seaworthy to
continue its voyage safely. 190
A belligerent warship damaged by enemy fire that will not (or cannot) be put to sea once
the lawful period of stay has expired must be interned. 191
15.9.5 Prizes in Neutral Ports or Roadsteads. A prize (i.e., a captured neutral or enemy
merchant ship) may only be brought into a neutral port or roadstead because of unseaworthiness,
stress of weather, or want of fuel or provisions. 192 It must leave as soon as such circumstances
that justified its entry cease. 193 Neutral ports may not be used as harbors of safety in which
prizes may be kept indefinitely. 194

188

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (Damages which are found to have been
produced by the enemys fire shall in no case be repaired.).
189

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 244-45 (But it is more than doubtful that the law
presently forbids the repair of battle damage in neutral ports, and, in fact, some states when neutral still allow such
repairs.).
190

For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 245 footnote 2 (As illustrated by the
incident involving the German battleship Admiral Graf Spee. See Hackworth, op. cit., Vol. VII, pp. 450-1. On
December 13, 1939, the Graf Spee entered the Uruguayan port of Montevideo, following an engagement with
British naval forces. A request was made to the Uruguayan authorities to permit the Graf Spee to remain fifteen
days in port in order to repair damages suffered in battle and to restore the vessel's navigability. The Uruguayan
authorities granted a seventy-two hour period of stay. Shortly before the expiration of this period the Graf Spee left
Montevideo and was destroyed by its own crew in the Rio de la Plata. The British Government, while not insisting
that Article 17 of Hague XIII clearly prohibited the repair of battle damage, did point to the widespread practice of
states when neutral in forbidding the repair of battle damage in their ports. In accordance with this practice it was
suggested that the Graf Spees period of stay be limited to twenty-four hours. Uruguay maintained, however, that
the scope of the neutral's duty required it only to prevent those repairs that would serve to augment the fighting force
of a vessel but not repairs necessary for safety of navigation.The incident is noteworthy as an example of the
extent to which belligerents seemingly can make use of neutral ports without violating the prohibition against using
neutral territory as a base of naval operations.).
191

Refer to 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a
Neutral Port).
192

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (Prizes cannot be taken to a neutral port
except in case of unseaworthiness, stress of weather, or want of fuel or provisions.); HAGUE XIII art. 21 (A prize
may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or
provisions.).
193

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (When the cause has disappeared, the prizes
must leave immediately;); HAGUE XIII art. 21 (It must leave as soon as the circumstances which justified its entry
are at an end.).
194

The S.S. Appam, 243 U.S. 124, 148-49 (1917) (It is familiar international law that the usual course after the
capture of the Appam would have been to take her into a German port, where a prize court of that nation might have
adjudicated her status, and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel
was neither taken to a German port nor to the nearest port accessible of a neutral power, but was ordered to, and did,
proceed over a distance of more than 3,000 miles, with a view to laying up the captured ship in an American port. It
was not the purpose to bring the vessel here within the privileges universally recognized in international law -- i.e.,

962

If the prize does not leave as soon as such circumstances that justified it entry cease, the
neutral State must order the prize to leave at once, and should it fail to do so, the neutral State
must employ the means at its disposal to release it with its previous officers and crew, and to
intern the prize crew. 195
If a prize is brought into a neutral States port under circumstances other than because of
unseaworthiness, stress of weather, or want of fuel or provisions, the neutral State must release
the prize. 196 The prize crew should be interned and the vessel restored to its former crew. 197
15.9.5.1 Article 23 of Hague XIII Prizes Sequestrated Pending Prize Court
Decision. Article 23 of Hague XIII permits a neutral State to allow prizes to enter its ports and
roadsteads when they are brought there to be sequestrated pending the decision of a prize
court. 198 However, the United States ratified Hague XIII subject to a reservation to Article 23. 199

for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as the
cause of such entry was satisfied or removed. The principles of international law recognized by this government,
leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use
were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by
one of the belligerents, might be safely brought and indefinitely kept.).
195

HAGUE XIII art. 21 (If it does not [leave], the neutral Power must order it to leave at once; should it fail to obey,
the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prize
crew.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (if none of the indicated conditions
exist, the state shall suggest to them that they depart, and if not obeyed shall have recourse to the means at its
disposal to disarm them with their officers and crew, or to intern the prize crew placed on board by the captor.).

196

HAGUE XIII art. 22 (A neutral Power must, similarly, release a prize brought into one of its ports under
circumstances other than those referred to in Article 21.); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 18
(Outside of the cases provided for in Article 17, the neutral state must release the prizes which may have been
brought into its territorial waters.).

197

Press Release, Oct. 28, 1939, German Capture of the American Steamer City of Flint, 1 DEPARTMENT OF STATE
BULLETIN 429, 432 (A prize crew may take a captured ship into a neutral port without internment only in case of
stress of weather, want of fuel and provisions, or necessity of repairs. In all other cases, the neutral is obligated to
intern the prize crew and restore the vessel to her former crew.).
198

HAGUE XIII art. 23 (A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy
or not, when they are brought there to be sequestrated pending the decision of a Prize Court. It may have the prize
taken to another of its ports. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying
ship. If the prize is not under convoy, the prize crew are left at liberty.).

199

William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (And whereas
the Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present
concurring therein) did advise and consent to the adherence by the United States to the said Convention with the
reservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said
Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship
captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of the
United States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate,
did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;).

963

15.10 NEUTRAL AIRSPACE

In general, belligerent military aircraft may not enter neutral airspace except to address
violations of neutrality by enemy forces when the neutral State is unwilling or unable to address
such violations.
15.10.1 Airspace That Is Considered Neutral. The airspace over a neutral States land
territory and the neutral States territorial and archipelagic waters is subject to the sovereignty of
the neutral State and, thus, is considered neutral. 200
The airspace over international waters, including the airspace over a neutral States
contiguous zone and exclusive economic zone, is not considered neutral airspace. 201
15.10.2 Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace.
Belligerent military aircraft are forbidden to enter neutral airspace, subject to certain
exceptions. 202
Belligerent military aircraft have the right to pass through international straits overlapped
by neutral waters and archipelagic sea lanes of a neutral State. 203
Belligerent States medical aircraft may enter neutral airspace subject to certain
conditions. 204
Belligerent aircraft in evident distress may be permitted to enter neutral airspace and to
land in neutral territory under such safeguards as the neutral State may wish to impose. The
neutral State must require such aircraft to land and must intern both aircraft and crew. 205 This
200

Refer to 14.2.1.1 (National Airspace).

201

Refer to 14.2.1.2 (International Airspace).

202

Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, 3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327
(Oct. 7, 1939) (The American Republics resolve [t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordance
with them they: ... (f) Shall regard as a contravention of their neutrality any flight by the military aircraft of a
belligerent state over their own territory.).

203

Refer to 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
204

Refer to 15.18.2 (Medical Aircraft and Neutral Territory).

205

2007 NWP 1-14M 7.3.9 (Belligerent aircraft in evident distress may be permitted to enter neutral airspace and
to land in neutral territory under such safeguards as the neutral nation may wish to impose. The neutral nation must
require such aircraft to land and must intern both aircraft and crew.). See also SPAIGHT, AIR POWER AND WAR
RIGHTS 436 (The case of distress.It was agreed by the Commission of Jurists of 1922-23 that the obligation to
prevent the entry of belligerent military aircraft was to be regarded as being subject to the neutral States moral duty
to grant succor to airmen in distress. As already explained, there is, in practice, some difficulty in differentiating
between cases in which the reason for entry is genuine distress, or some similar cause such as engine failure or
exhaustion of fuel which might lead to disaster, and those in which there is a deliberate attempt to penetrate in order
to secure some military advantage or to escape from superior forces. The highest that one can put the neutral
obligation is that asylum should be granted in all cases of evident distress, so far as the circumstances allow this
obvious concession to humanitarian claims to be made.).

964

situation would fall under the general duty of a neutral State with respect to the treatment of
belligerent State forces that enter, or seek to enter, its territory. 206
15.10.3 Duties of Neutral States With Respect to Their Airspace. As with other neutral
territory, neutral States have an affirmative duty to prevent the violation of their airspace by
belligerent military aircraft. 207 For example, if a belligerent military aircraft enters neutral
airspace, the neutral State is obliged to use the means at its disposal to require the belligerent
military aircraft to land within its territory. 208 After the aircraft lands, the neutral State must
intern the aircraft and its crew for the duration of the armed conflict.
If a neutral State is unable or unwilling to prevent the unlawful entry or use of its airspace
by a belligerent State, the opposing belligerent States forces may undertake such self-help
enforcement measures as the circumstances may require. 209 For example, belligerents with
missile defense capabilities may be justified in intercepting enemy missiles transiting neutral
airspace if the neutral state cannot, or will not, prevent such airspace incursions.
15.11 BELLIGERENT RIGHT OF ANGARY
The right of angary recognizes the right of belligerents to requisition (upon payment of
just compensation) neutral property transiently within their territory, or in territory that they have
occupied, where the property is urgently required for the conduct of the war. 210
15.11.1 Neutral Property Transiently Within Belligerent Jurisdiction. The belligerent
right of angary applies to property that is transiently within belligerent jurisdiction. For example,
neutral ships have been subject of the exercise of the right of angary. 211

206

Refer to 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

207

See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 251 (The practices of states during World Wars
I and II may be regarded as having firmly established both the right as well as the duty of the neutral state to forbid
the entrance of belligerent military aircraft into its air space.); SPAIGHT, AIR POWER AND WAR RIGHTS 420 (The
important question whether the laws of neutrality allow belligerent military aircraft to come and go in neutral
jurisdiction was answered by the practice of 1914-18 with a firm and unmistakable negative. The unanimity of the
answer was remarkable. All the neutral States who had occasion to decide the question decided it in the same
general way, and their decision gave rise to no protest on the part of the belligerents concerned, with one single
exception, which the subsequent action and compliance of the State making it deprived of all its force.).
208

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Arial Warfare, art. 42, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL
DOCUMENTS 12, 36 (1938) (A neutral government must use the means at its disposal to prevent the entry within its
jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction. A
neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its
jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.).
209

Refer to 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
210

GREENSPAN, MODERN LAW OF LAND WARFARE 581 (The right of angary, an ancient rule of international law, in
its modern application recognizes the right of belligerents to requisition (upon payment of just compensation)
neutral ships and other neutral property transiently within their territory, or in territory which they have occupied,
where the property is urgently required for the conduct of the war.).

965

The right of angary does not apply to property of neutral ownership that has acquired
enemy character. 212
15.11.2 Railway Material Coming From the Territory of a Neutral State. Railway
material coming from the territory of a neutral State, whether it be the property of that State or of
companies or private persons, and recognizable as such, shall not be requisitioned or utilized by
a belligerent State except where and to the extent that it is absolutely necessary. 213 It shall be
sent back as soon as possible to the country of origin. 214 A neutral State may likewise, in case of
necessity, retain and utilize to an equal extent railway material coming from the territory of a
belligerent State. 215 Compensation shall be paid by one party or the other in proportion to the
railway material used, and to the period of usage. 216
Railway materials would include, for example, railroad cars and locomotives.

211

For example, Press Release: Swedish Motorship Kungsholm, 5 DEPARTMENT OF STATE BULLETIN 519 (Dec.
13, 1941) (The United States Government has exercised its right of angary to take over the Swedish motorship
Kungsholm.); Woodrow Wilson, Proclamation Concerning the Possession and Utilization of Netherlands Vessels,
Mar. 20, 1918, reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 259-60 (1918) (Whereas the law and
practice of nations accords to a belligerent Power the right in time of military exigency and for purposes essential to
the prosecution of the war, to take over and utilize neutral vessels lying within its jurisdiction: Now therefore I,
Woodrow Wilson, President of the United States of America, in accordance with international law and practice, and
by virtue of the Act of Congress aforesaid, and as Commander-in-Chief of the Army and Navy of the United States,
do hereby find and proclaim that the imperative military needs of the United States require the immediate utilization
of vessels of Netherlands registry, now lying within the territorial waters of the United States; and I do therefore
authorize and empower the Secretary of the Navy to take over on behalf of the United States the possession of and to
employ all such vessels of Netherlands registry as may be necessary for essential purposes connected with the
prosecution of the war against the Imperial German Government. The vessels shall be manned, equipped, and
operated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and the
United States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles
of international law.).
212

LAUTERPACHT, II OPPENHEIMS INTERNATIONAL LAW 761-62 (365) (In case property of subjects of neutral
States is vested with enemy character, it is not neutral property in the strict sense of the term neutral, and all rules
respecting appropriation, utilization, and destruction of enemy property obviously apply to it. The object of the right
of angary is, therefore, either such property of subjects of neutral States as retains its neutral character from its
temporary position on belligerent territory, and which therefore is not vested with enemy character, or such neutral
property on the open sea as has not acquired enemy character.).
213

HAGUE V art. 19 (Railway material coming from the territory of neutral Powers, whether it be the property of
the said Powers or of Companies or private persons, and recognizable as such, shall not be requisitioned or utilized
by a belligerent except where and to the extent that it is absolutely necessary.).

214

HAGUE V art. 19 (It shall be sent back as soon as possible to the country of origin.).

215

HAGUE V art. 19 (A neutral Power may likewise, in case of necessity, retain and utilize to an equal extent
material coming from the territory of the belligerent Power.).

216

HAGUE V art. 19 (Compensation shall be paid by one party or the other in proportion to the material used, and to
the period of usage.).

966

This rule on railway material has sought to balance between the necessities of war (i.e.,
that such material might be of great military utility) and the interests and rights of neutrals. 217
This rule also reflects a compromise between the different views of States. 218
15.12 NEUTRAL COMMERCE AND CARRIAGE OF CONTRABAND
Although neutral States must not provide war-related goods and services to belligerents,
neutral persons are not prohibited from such activity by the law of neutrality. 219 The law of
neutralitys rules on neutral commerce and the carriage of contraband have sought to balance the
right of neutral persons to conduct commerce free from unreasonable interference against the
right of belligerent States to interdict the passage of war materials to the enemy. 220
Neutral merchant vessels and civil aircraft engaged in legitimate neutral commerce are
subject to visit and search, but generally may not be captured or destroyed by belligerent
forces. 221 On the other hand, neutral merchant vessels and civil aircraft are subject to capture
and other penalties if they engage in certain conduct. 222

217

Antonio S. de Bustamante, The Hague Convention Concerning the Rights and Duties of Neutral Powers and
Persons in Land Warfare, 2 AJIL, 95, 119 (1908) (The article in regard to railways the only article saved in the
chapter relating to foreign property is useful to nations with land boundaries and is based on just terms, making the
best equivalent for the necessities of war and in the interest and right of neutrals. Therefore, its acceptance brings
great credit upon the delegation of Luxemburg. It is to be observed that the final redaction only relates to railway
material coming from neutral states, belonging to the said states or to companies or private persons. It has no other
purpose than to facilitate the return of the compensation or the payment for the use of the cars and locomotives of a
country which may accidentally enter the other state through the occasions of ordinary traffic.).
218

See A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 294 (1909) (Article
19 replaces Article 54 of the Regulations of 1899 and is a compromise between contradictory views. Luxemburg
and Belgium denied the right of belligerents to requisition and make use of neutral railway materials within their
territory. Germany and Austria desired to have the right to use it admitted, on the understanding that an indemnity
was paid for its use after the close of the war. France and Luxemburg as an alternative claimed both an indemnity
and the right, in case of need, to retain and make use of a corresponding quantity of railway material coming from
the territory of a belligerent state. The Conference took the middle course, allowing belligerents to requisition and
use neutral railway material only when absolutely necessary, on condition that it be returned as soon as possible, the
neutral being given the corresponding right over belligerent material within its territory, compensation to be paid by
one party to the other in proportion to the material used and the period of use.).
219

Refer to 15.3.2.1 (Duty to Refrain From Providing War-Related Goods and Services to Belligerents).

220

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 182 (It has long been customary to characterize the
problems arising with respect to neutral commerce in terms of two conflicting rights: the right of the neutral state to
insist upon continued freedom of commerce for its subjects despite the existence of war and the right of the
belligerent to prevent neutral subjects from affording assistance to the military effort of an enemy. More accurate,
perhaps, is the characterization of these problems in terms of conflicting interests rather than in terms of conflicting
rights. Whereas the neutrals interest has been to suffer the least amount of belligerent interference in the trading
activities of its subjects, the belligerents interest has been to prevent neutrals from compensating for an enemy's
weakness at sea.).

221

Refer to 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

222

Refer to 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

967

Contraband goods are liable to capture at any place beyond neutral territory, if their
destination is the territory belonging to, or occupied by, an opposing belligerent State. 223
15.12.1 Classes of Goods That May Be Considered Contraband. Contraband consists of
goods that are destined for an enemy of a belligerent and that may be susceptible to use in armed
conflict. 224 Items susceptible to use in armed conflict may be understood to include warsustaining commerce, i.e., commerce that indirectly but effectively supports and sustains the
belligerent States war fighting capability (e.g., imports of raw materials used for the production
of armaments and exports of products whose proceeds are used by the belligerent State to
purchase arms and armaments). 225
15.12.1.1 Distinction Between Absolute and Conditional Contraband. Whether
an item is susceptible to use in armed conflict may depend on the character of the item.
Traditionally, contraband has been divided into two categories, absolute and conditional.
Absolute contraband consisted of goods whose character is such that they are obviously destined
for use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional
contraband consisted of goods equally susceptible to either peaceful or warlike purposes, such as
foodstuffs, construction materials, and fuel. 226

223

2007 NWP 1-14M 7.4.1.2 (Contraband goods are liable to capture at any place beyond neutral territory, if their
destination is the territory belonging to or occupied by the enemy.); 1998 NWP 9 7.4.1.1 (same).
224

2007 NWP 1-14M 7.4.1 (Contraband consists of goods destined for the enemy of a belligerent and that may be
susceptible to use in armed conflict.); 1955 NWIP 10-2 631a (Contraband consists of all goods which are
destined for an enemy and which may be susceptible of use in war.).
225

See 2007 NWP 1-14M 7.4 (For purposes of this publication, neutral commerce comprises all commerce
between one neutral nation and another not involving materials of war or armaments ultimately destined for a
belligerent nation, and all commerce between a neutral nation and a belligerent that does not involve the carriage of
contraband or otherwise contribute to the belligerents war-fighting/war-sustaining capability.); 1998 NWP 9 7.4
footnote 88 (Although war-sustaining commerce is not subject to precise definition, commerce that indirectly but
effectively supports and sustains the belligerent's war-fighting capability properly falls within the scope of the term.
Examples of war-sustaining commerce include imports of raw materials used for the production of armaments and
exports of products the proceeds of which are used by the belligerent to purchase arms and armaments.) (internal
citations omitted).
226

2007 NWP 1-14M 7.4.1 (Contraband consists of goods destined for the enemy of a belligerent and that may be
susceptible to use in armed conflict. Traditionally, contraband has been divided into two categories: absolute and
conditional. Absolute contraband consisted of goods the character of which made it obvious that they were destined
for use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional contraband consisted of
goods equally susceptible to either peaceful or warlike purposes, such as foodstuffs, construction materials, and
fuel.). See also The Peterhoff, 72 U.S. 28, 52-53 (1867) (The classification of goods as contraband or not
contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps
impracticable; but that which is best supported by American and English decisions may be said to divide all
merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and
ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes
of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes.
Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a
belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the
military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to
seizure and condemnation for violation of blockade or siege.).

968

Whether it is possible to distinguish between absolute contraband and conditional

contraband may depend on the extent to which the enemy government controls imports and the
scale of the conflict. For example, during World War II, belligerent States largely did not
distinguish between absolute and conditional contraband because of the involvement of virtually
the entire population in support of the war effort and because the belligerent States exercised
governmental control over all imports. 227
15.12.1.2 Free Goods That Are Exempt From Capture as Contraband. Certain
goods qualify as free goods, meaning that they are exempt from capture by belligerent States
as contraband even though they are destined for enemy territory. Free goods include the
following:

equipment exclusively intended for the treatment of wounded and sick members of armed
forces or for the prevention of disease, provided that the particulars regarding the voyage
of such equipment have been notified to and approved by the opposing belligerent
State; 228

consignments of certain types of relief goods (e.g., medical supplies and religious
materials for civilians; clothing and medicine for children under fifteen, expectant
mothers, and maternity cases), under certain conditions; 229

certain types of relief consignments intended for the benefit of the population of occupied
territory; 230

items destined for POWs, including individual parcels and collective relief shipments
containing food, clothing, medical supplies, religious objects, and educational, cultural,
and athletic articles; 231 and

other goods that are specifically exempted from capture by an applicable treaty or by a
special arrangement between belligerent States. 232

227

2007 NWP 1-14M 7.4.1 (The practice of belligerents during the Second World War collapsed the traditional
distinction between absolute and conditional contraband. Because of the involvement of virtually the entire
population in support of the war effort, the belligerents of both sides tended to exercise governmental control over
all imports. Consequently, it became increasingly difficult to draw a meaningful distinction between goods destined
for an enemy government and its armed forces and goods destined for consumption by the civilian populace. As a
result, belligerents treated all imports directly or indirectly sustaining the war effort as contraband without making a
distinction between absolute and conditional contraband.).
228

Refer to 7.13 (Chartered Medical Transport Ships).

229

Refer to 5.19.3 (Passage of Relief Consignments).

230

Refer to 11.17 (Relief).

231

Refer to 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

232

For example, HAGUE XI art. 1 (The postal correspondence of neutrals or belligerents, whatever its official or
private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is
detained, the correspondence is forwarded by the captor with the least possible delay.). See also TUCKER, THE
LAW OF WAR AND NEUTRALITY AT SEA 91 (From a formal point of view it must probably be concluded that these
provisions remain binding today upon the parties to Hague Convention XI. On the other hand, it is difficult to avoid

969

In practice, neutral States have provided belligerent States of both sides with information
regarding the nature, timing, and route of shipments of goods constituting exceptions to
contraband, and obtained approval for their safe conduct and entry into belligerent owned or
occupied territory. 233
15.12.1.3 Contraband Lists. Belligerent States may declare contraband lists at the
initiation of hostilities to notify neutral States of the type of goods considered to be absolute or
conditional contraband, as well as those not considered to be contraband at all (i.e., exempt or
free goods). The precise nature of a belligerent States contraband list may vary according to
the circumstances of the conflict. 234
Although there has been no conflict of a similar scale and magnitude to World War II, in
the years following the conclusion of that conflict State practice indicates that, to the extent
international law may continue to require publication of contraband lists, the requirement may be
satisfied by a listing of exempt goods. 235
15.12.2 Requirement of Enemy Destination. Contraband goods are liable to capture at
any place beyond neutral territory if their destination is the territory belonging to, or occupied
by, the enemy.
15.12.2.1 Ultimate Destination Doctrine of Continuous Voyage. It is immaterial
whether the carriage of contraband is direct, involves transshipment, or requires overland
transport. 236 Under the doctrine of continuous voyage, the ultimate destination is determinative,

the conclusion that the events of the two World Wars have reduced the significance of these provisions almost to a
vanishing point.).
233

1989 NWP 9 7.4.1.2 (It is customary for neutral nations to provide belligerents of both sides with information
regarding the nature, timing, and route of shipments of goods constituting exceptions to contraband and to obtain
approval for their safe conduct and entry into belligerent owned or occupied territory.). Compare 5.19.3.1
(Technical Arrangements for the Passage and Distribution of Relief Consignments).
234

2007 NWP 1-14M 7.4.1 (Belligerents may declare contraband lists at the initiation of hostilities to notify
neutral nations of the type of goods considered to be absolute or conditional contraband, as well as those not
considered to be contraband at all (i.e., exempt or free goods). The precise nature of a belligerents contraband list
may vary according to the circumstances of the conflict.); 1955 NWIP 10-2 631b (BELLIGERENT
CONTRABAND DECLARATIONS. Upon the initiation of armed conflict, belligerents may declare contraband
lists, setting forth therein the classification of articles to be regarded as contraband, as well as the distinction to be
made between goods considered as absolute contraband and goods considered as conditional contraband. The
precise nature of a belligerents contraband list may vary according to the particular circumstances of the armed
conflict.).
235

2007 NWP 1-14M 7.4.1 (Though there has been no conflict of similar scale and magnitude since the Second
World War, postWorld War II-practice indicates that, to the extent international law may continue to require
publication of contraband lists, the requirement may be satisfied by a listing of exempt goods.).
236

2007 NWP 1-14M 7.4.1.2 (It is immaterial whether the carriage of contraband is direct, involves
transshipment, or requires overland transport.); 1998 NWP 9 7.4.1.1 (same). Consider 1909 DECLARATION OF
LONDON art. 30 (Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or
occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is
direct or entails transhipment or a subsequent transport by land.).

970

and contraband goods may be captured, even if there are neutral ports that are intended to be
visited between the point of capture and the ultimate destination. 237
15.12.2.2 Presumption of Destination of Enemy Territory in Certain Cases.
When contraband is involved, a destination of enemy-owned or enemy-occupied territory may be
presumed when:

the neutral vessel is to call at an enemy port before arriving at a neutral port for which the
goods are documented;

the goods are documented to a neutral port serving as a port of transit to an enemy, even
though they are consigned to a neutral; or

the goods are consigned to order or to an unnamed consignee, but are destined for a
neutral State in the vicinity of enemy territory. 238

These presumptions of enemy destination constitute sufficient cause for naval

commanders to order a capture. 239 However, these presumptions may be rebuttable during
subsequent prize court proceedings by an affirmative showing of innocent destination. 240
237

The Pedro, 175 U.S. 354, 365-66 (1899) (In The Circassian, it was ruled that the intent to violate a blockade,
found as a fact, was not disproved by evidence of a purpose to call at a neutral port, not reached at time of capture,
with ulterior destination to the blockaded port. In The Bermuda, the actual destination to a belligerent port, whether
ulterior or direct, was held to determine, the character of the transaction as a whole; that transhipment could not
change the effect of the pursuit of a common object by a common plan; and that if the cargo was contraband its
condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so as to the
vessel in the former case. And in The Springbok, it was held that an intention to tranship cargo at a neutral port did
not save it when destined for a blockaded port; that as to cargo, both in law and intent, the voyage from London to
the blockaded port was one voyage, and that the liability attached from the time of sailing if captured during any part
of that voyage.).
238

2007 NWP 1-14M 7.4.1.2 (When contraband is involved, a destination of enemy owned or occupied territory
may be presumed when: 1. The neutral vessel is to call at an enemy port before arriving at a neutral port for which
the goods are documented; 2. The goods are documented to a neutral port serving as a port of transit to an enemy,
even though they are consigned to a neutral; or 3. The goods are consigned to order or to an unnamed consignee,
but are destined for a neutral nation in the vicinity of enemy territory.); 1998 NWP 9 7.4.1.1 (substantially the
same).
239

1955 NWIP 10-2 631c(1) note 21 (The circumstances creating a presumption of ultimate enemy destination
enumerated in subparagraphs 631c 1 and 2 are of concern to operating naval commanders for the reason that
circumstances held to create a presumption of enemy destination constitute sufficient cause for capture. Before a
prize court each of these presumptions is rebuttable and whether or not a prize court will, in fact, condemn the
captured cargo, and vessel (or aircraft), will depend upon a number of complex considerations with which an
operating naval commander need not be concerned.).
240

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 272-73 (In this connection the belligerents task has
been facilitated still further by the creation of a detailed set of presumptions governing hostile destination. Thus a
presumption of enemy destination has been held to arise where goods are consigned to order, or if the ships papers
do not indicate the real consignee of the goods, or if goods are merely consigned to a dealer or agent and the
ultimate buyer is unknown, or if the parties engaged in the transactionthough knownhave or are suspected of
having enemy connections. In any of the foregoing circumstances the inference of an ultimate enemy destination
has been strong and could be displaced only by a positive showing that the goods in question had an innocent
destination.).

971

These presumptions of the destination of enemy territory are not sufficient to establish
that the property is destined for use by an enemy government or its armed forces, which would
be necessary to establish a basis for the forfeiture of the property if the property is classified as
conditional contraband. 241
15.12.3 Certificate of Noncontraband Carriage. A certificate of noncontraband carriage
is a document issued by a belligerent consular or other designated official to a neutral vessel
(navicert) or neutral aircraft (aircert) certifying that the cargo being carried has been examined,
usually at the initial place of departure, and has been found to be free of contraband. The
purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods with
minimal interference and delay of neutral commerce. 242 The navicert or aircert may be viewed
as a type of commercial passport. 243
The certificate is not a guarantee that the vessel or aircraft will not be subject to visit and
search or that cargo will not be seized. (Changed circumstances, such as a change in status of the
neutral vessel, between the time of issuance of the certificate and the time of interception at sea
may cause it to be invalidated.) Conversely, the absence of a navicert or aircert is not, in itself, a
valid ground for seizure of cargo. 244
Navicerts and aircerts issued by one belligerent State do not limit the visit and search
rights of an opposing belligerent State. When a neutral ship or aircraft accepts a navicert or
aircert from one belligerent State, this may affect how the other belligerent State views the
neutrality of that aircraft or vessel. 245

241

Refer to 15.12.1.1 (Distinction Between Absolute and Conditional Contraband).

242

2007 NWP 1-14M 7.4.2 (A certificate of noncontraband carriage is a document issued by a belligerent consular
or other designated official to a neutral vessel (navicert) or neutral aircraft (aircert) certifying that the cargo being
carried has been examined, usually at the initial place of departure, and has been found to be free of contraband.
The purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods with minimal
interference and delay of neutral commerce.); 1998 NWP 9 7.4.2 (same).
243

See Malcolm Moos, The Navicert in World War II, 38 AJIL 115 (1944) (In view of their favorable experience
with the navicert during World War I, its revival by the British in December 1939, occasioned no surprise. The
term navicert is derived from the code word navicert, and in essence is a commercial passport designed to
facilitated the passage of consignments through the British blockade.). Refer to 12.6 (Military Passports, SafeConducts, and Safeguards).
244

2007 NWP 1-14M 7.4.2 (The certificate is not a guarantee that the vessel or aircraft will not be subject to visit
and search or that cargo will not be seized. (Changed circumstances, such as a change in status of the neutral vessel,
between the time of issuance of the certificate and the time of interception at sea may cause it to be invalidated.)
Conversely, absence of a navicert or aircert is not, in itself, a valid ground for seizure of cargo.); 1998 NWP 7.4.2
(same).
245

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 322-23 (In this connection a problem of considerable
importance arises as a result of the attempt by belligerents to institute a system of passes for neutral shipping. In
principle, it is clear that such devices as the navicert and ships warrant are intended to establish an effective control
over the activities of neutral merchant vessels. Neutral merchant vessels by submitting to such a system thereby
ease the belligerent's task of patrolling the high seas in search either of contraband carriers or of blockade runners.
It seems reasonably well-established that a neutral merchant vessel in accepting a safe-conduct pass from a
belligerent subjects itself to the control of the latter and performs an act of unneutral service. The same conclusion

972

A similar procedure was used during the Cuban Missile Crisis, when the United States
issued clearance certificates (clearcerts). 246
15.13 BELLIGERENT RIGHT OF VISIT AND SEARCH OF MERCHANT VESSELS AND CIVIL AIRCRAFT
Belligerent warships and military aircraft have a right of visit and search of merchant
vessels and civil aircraft outside of neutral territory.
15.13.1 Purposes of Visit and Search. The belligerent right of visit and search may be
viewed as a necessary part of the belligerents right to capture enemy merchant vessels and civil
aircraft, and to capture neutral merchant vessels and civil aircraft that have engaged in violations
of neutrality. 247 Thus, for example, visit and search has been conducted with the object of: 248

ascertaining the character of the vessel or aircraft and nationality (including assessing
whether a vessel or aircraft that is flagged to a neutral State has acquired enemy character
by engaging in service to the enemy); 249

verifying whether it conveys contraband cargo; 250

verifying whether it has committed a breach of blockade; 251 or

verifying whether the vessel or aircraft has committed another violation of neutrality
making it liable to capture. 252

would appear warranted in the case of a neutral vessel that cooperates with a belligerent by voluntarily applying for,
and accepting, a navicert or ships warrant.).
246

Press Release: U.S. Acts To Avoid Delays for Ships Transiting Waters in Vicinity of Cuba, Oct. 27, 1962, 47
DEPARTMENT OF STATE BULLETIN 747 (Nov. 12, 1962) (The Department of State announced on October 27 the
institution of a system of clearances to assist vessels which transit waters in the vicinity of Cuba and vessels destined
for Cuban ports with cargoes containing no offensive weapons or associated materiel. The system, developed by the
State, Defense, and Treasury Departments, is designed to avoid unnecessary delays and other difficulties arising out
of the stoppage, inspection, or possible diversion of ships. The system is for the convenience of shipping, and
clearances are obtainable upon application by ships owners, agents, or officers. A vessel departing a United States
port may obtain a special clearance from customs authorities at the port of departure. A vessel departing a foreign
port may obtain the clearance from an American consulate.).
247

See, e.g., The Nereide, 13 U.S. 388, 427-28 (1815) (Belligerents have a full and perfect right to capture enemy
goods and articles going to their enemy which are contraband of war. To the exercise of that right the right of search
is essential. It is a mean justified by the end. It has been truely denominated a right growing out of, and ancillary to
the greater right of capture. Where this greater right may be legally exercised without search, the right of search can
never arise or come into question.).
248

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (Warships of the belligerents have the right
to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with the object of
ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by international law
or has committed any violation of blockade.).

249

Refer to 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
250

Refer to 15.12 (Neutral Commerce and Carriage of Contraband).

251

Refer to 13.10 (Blockade).

973

15.13.2 Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search.
Certain neutral vessels and aircraft are exempt from the belligerent right of visit and search: (1)
neutral warships; (2) neutral State aircraft (including military aircraft); (3) ships of neutral States
used only on government non-commercial service; and (4) neutral merchant vessels under
convoy of neutral warships of the same nationality, and neutral aircraft accompanied by neutral
military aircraft of the same nationality.
15.13.2.1 Neutral Warships. Neutral warships may not be subjected to visit and
search because they have complete immunity from the jurisdiction of any State other than the
flag State. 253
15.13.2.2 Neutral State Aircraft. Neutral State aircraft (including military
aircraft) are immune from visit and search by foreign States. 254
15.13.2.3 Ships of a Neutral State Used Only on Government Non-Commercial
Service. Ships owned or operated by a neutral State and used only on government noncommercial service may not be subjected to visit and search because they also have complete
immunity from the jurisdiction of any State other than the flag State. 255
15.13.2.4 Neutral Merchant Vessels Under Convoy of Neutral Warships of the
Same Nationality and Neutral Aircraft Accompanied by Neutral Military Aircraft of the Same
Nationality. Neutral merchant vessels under convoy of neutral warships of the same nationality
are also exempt from visit and search. 256 However, the convoy commander may be required to
provide in writing to the commanding officer of an intercepting belligerent States warship
information as to the character of the vessels and their cargoes that would otherwise be obtained
by a visit and search. 257 Neutral merchant vessels under convoy of neutral warships of the same

252

Refer to 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

253

Consider LOS CONVENTION art. 95 (Warships on the high seas have complete immunity from the jurisdiction of
any State other than the flag State.).
254

Refer to 14.3.1 (State Versus Civil Aircraft); 14.3.3.1 (Military Aircraft Rights and Liabilities).

255

Consider LOS CONVENTION art. 96 (Ships owned or operated by a State and used only on government noncommercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the
flag State.).
256

For example, John H. McNeill, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31
VIRGINIA JOURNAL OF INTERNATIONAL LAW 631, 635 (1991) (And in July 1987, eleven Kuwaiti-owned tankers
were registered under the U.S. flag and escorted by the U.S. Navy. To many, this reflagging procedure appeared to
be a logical expedient, not for repudiating the rules concerning contraband, but rather for protecting these vessels
against the attack-on-sight of neutral shipping, in addition to whatever U.S. foreign policy objectives the reflagging
served. In effect, the U.S. relied upon the ancient doctrine of right of convoy under which belligerents cannot visit
and search convoyed ships and are to be satisfied with the declaration of the commander of the convoy that no cargo
which can be considered contraband is on board the convoyed ships.).
257
Consider 1909 DECLARATION OF LONDON art. 61 (Neutral vessels under national convoy are exempt from
search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent warship, all
information as to the character of the vessels and their cargoes, which could be obtained by search.).

974

nationality are exempt from visit and search because the neutral State has provided an assurance
that the neutral vessel is not engaged in violations of neutrality. 258
If a convoy commander determines that a vessel under his or her charge possesses enemy
character or carries contraband cargo, the commander is obliged to withdraw his or her
protection from the offending vessel, making it liable to visit and search, and possible capture, by
opposing belligerent warships. 259
Neutral civil aircraft accompanied by neutral military aircraft of the same flag may also
be exempt from visit and search if the following two elements are met:

the flag State of a neutral military aircraft warrants that the neutral civil aircraft is not
carrying contraband cargo; and

the commander of the neutral military aircraft provides to the intercepting belligerent
military aircraft upon request all information as to the character and cargo of the neutral
civil aircraft that would otherwise be obtained by a visit and search. 260

15.13.3 Where Belligerents May Not Exercise the Right of Visit and Search. As an act of
hostility, the belligerent right of visit and search may not be conducted within neutral territory
(e.g., a neutral States territorial seas and neutral airspace). 261 This prohibition on the exercise of
the belligerent right of visit and search extends to international straits overlapped by neutral
territorial seas and to archipelagic sea lanes. 262
258

See General Report to the Conference, reprinted in JAMES BROWN SCOTT, THE DECLARATION OF LONDON
FEBRUARY 26, 1909 177-78 (1920) (The principle laid down is simple; a neutral vessel under the convoy of a warship of her own nationality is exempt from search. The reason for this rule is that the belligerent cruiser ought to be
able to find in the assurances of the commander of the convoy as good a guaranty as would be afforded by the
exercise of the right of search itself; in fact, she can not call in question the assurances given by the official
representative of a neutral Government without displaying a lack of international courtesy.).
259

Consider 1909 DECLARATION OF LONDON art. 62 (If the commander of the belligerent warship has reason to
suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to
him. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the result
of such investigation in a report, of which a copy is handed to the officer of the warship. If, in the opinion of the
commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of
the convoy must be withdrawn from such vessels.).
260

2007 NWP 1-14M 7.6.3 (Neutral civilian aircraft accompanied by neutral military aircraft of the same flag are
exempt from visit and search if the neutral military aircraft (1) warrants that the neutral civilian aircraft is not
carrying contraband cargo and (2) provides to the intercepting belligerent military aircraft upon request such
information as to the character and cargo of the neutral civilian aircraft as would otherwise be obtained in visit and
search.).
261

See HAGUE XIII art. 2 (Any act of hostility, including capture and the exercise of the right of search, committed
by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly
forbidden.); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (Warships of the belligerents
have the right to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with
the object of ascertaining its character and nationality and of verifying whether it conveys cargo prohibited by
international law or has committed any violation of blockade.).
262

Refer to 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).

975

15.13.4 Procedure for Visit and Search of Merchant Vessels and Aircraft. Belligerent
States have discretion in formulating their procedures for conducting the visit and search of
neutral merchant vessels and aircraft. 263 Generally, the belligerent warship or aircraft visits or
intercepts the vessel or aircraft, shows its true colors, and provides a clear signal to the merchant
vessel or civil aircraft that it is expected to submit to visit and search. 264
During armed conflict, specific rules of engagement or other special instructions may be
issued by the operational chain of command to provide guidance on the visit and search
procedure to be carried out by U.S. warships and military aircraft when exercising the belligerent
States right of visit and search of merchant vessels and civil aircraft. For example, the issuance
of certificates of non-contraband carriage may be part of such procedures. 265 In the absence of
specific guidance from the operational chain of command, Military Department or Service
regulations or guidance may provide the applicable procedures. 266
15.13.4.1 Use of Force During Visit and Search. Merchant vessels or civil
aircraft that comply with instructions given to them may not be made the object of attack;
merchant ships or civil aircraft that refuse to comply may be stopped by force. 267 Merchant
ships or civil aircraft that resist visit and search assume the risk of resulting damage. 268 Such

263

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (Customary international law does not lay down
detailed rules governing the mode of conducting visit and search and belligerents have always enjoyed a certain
discretion in this regard. In general, however, a substantial measure of uniformity came to characterize the
traditional practices of states, and this uniformity was reflected in the special instructions issued by maritime powers
to their naval forces.).

264

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (Before calling upon a neutral merchantman to
submit to visitation a belligerent warship is required to show its true colors. In addition, visitation must be preceded
by a clear signal on the part of the warship that the merchant vessel is expected to stop and bring to. The
notification of intention to visit may be accomplished by any of several means, e. g., by firing a blank charge, by
international flag signal, or even by radio. Nor does international law prescribe the distance a belligerent warship
must keep from the vessel being visited, which may vary according to the conditions of the sea, the size and
character of the visiting warship, and many other factors.).

265

Refer to 15.12.3 (Certificate of Noncontraband Carriage).

266

See, e.g., 2007 NWP 1-14M 7.6.1 (In the absence of specific rules of engagement or other special instructions
issued by the operational chain of command during a period of armed conflict, the following procedure should be
carried out by U.S. warships exercising the belligerent right of visit and search of merchant vessels:).
267

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (If the merchant ship does not heed the
signal to stop, it may be pursued by the warship and stopped by force; outside of such a case the ship cannot be
attacked unless, after being hailed, it fails to observe the instructions given it.).

268

See Eleanor, 15 U.S. 345, 358 (1817) (To detain for examination is a right which a belligerant may exercise over
every vessel, not a national vessel, that he meets with on the ocean. And whatever may be the injury that casually
results to an individual from the act of another while pursuing the reasonable exercise of an established right, it is his
misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable
neither at law nor in the forum of conscience. And the principal right necessarily carries with it also all the means
essential to its exercise. Thus, in the present case, a vessel must be pursued in order to be detained for examination.
But if in the pursuit she had been dismasted, and upset or stranded, or run on shore and lost, it would have been an
unfortunate case, but the pursuing vessel would have stood acquitted.).

976

vessels or aircraft also may be deemed to acquire the character of enemy merchant ships or civil
aircraft. 269
15.13.4.2 Visit and Search of Merchant Vessels by Military Aircraft. Belligerent
military aircraft have a right to conduct visit and search of merchant vessels. 270
Ordinarily, visit and search of a vessel by a belligerent States aircraft is accomplished by
directing and escorting the merchant vessel to the vicinity of a belligerent warship, which would
carry out the visit and search at sea, or to a belligerent port. 271
15.13.4.3 Visit and Search of Civil Aircraft by Military Aircraft. Belligerent
military aircraft have a right to conduct visit and search of civil aircraft. 272 Such visit and search
is conducted through interception and, if necessary, diversion. 273
15.14 ACQUISITION OF ENEMY CHARACTER BY NEUTRAL-FLAGGED MERCHANT VESSELS AND
NEUTRAL-MARKED CIVIL AIRCRAFT
All vessels operating under an enemy flag, and all aircraft bearing enemy markings,
possess enemy character. However, the fact that a ship flies a neutral flag, or that an aircraft
bears neutral markings, does not necessarily establish the neutral character of the vessel or
aircraft. Vessels or aircraft may acquire enemy character from (1) the ownership or control of
the vessel or aircraft, or (2) their conduct.
15.14.1 Acquisition of Enemy Character by Vessels or Aircraft Through Belligerent
Ownership or Control. Any merchant vessel or civil aircraft that is owned or controlled by an
enemy State or person has enemy character, regardless of whether it is operating under a neutral
flag or bears neutral markings. 274 A neutral flag or neutral markings cannot serve as a device to
protect vessels or aircraft from seizure whose actual status indicates either continued ownership
or control by individuals who themselves possess enemy character. 275 Such vessels may be
269

Refer to 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

270

2007 NWP 1-14M 7.6.2 (Although there is a right of visit and search by military aircraft, there is no
established international practice as to how that right is to be exercised.).
271

2007 NWP 1-14M 7.6.2 (Ordinarily, visit and search of a vessel by an aircraft is accomplished by directing and
escorting the vessel to the vicinity of a belligerent warship, which will carry out the visit and search, or to a
belligerent port.).
272

2007 NWP 1-14M 7.6.3 (The right of a belligerent military aircraft to conduct visit and search of a civilian
aircraft to ascertain its true identity (enemy or neutral), the nature of its cargo (contraband or free goods), and the
manner of its employment (innocent or hostile) is now well established in the law of armed conflict.).
273

Refer to 14.5.1 (Interception); 14.5.2 (Diversion of Aircraft).

274

See 1955 NWIP 10-2 501 (Any merchant vessel or aircraft owned or controlled by or for an enemy State,
enemy persons, or any enemy corporation possesses enemy character, regardless of whether or not such a vessel or
aircraft operates under a neutral flag or bears neutral markings.).

275

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 75 (For the practice of states is clear that even though
entitled to fly a neutral flagand thus possessing a neutral nationalitya vessel may nevertheless be considered as
impressed with an enemy character. The neutral flag cannot serve as a device to protect vessels from seizure whose
actual status indicates either continued ownership or control by individuals who themselves possess enemy
character.).

977

subject to treatment as enemy merchant vessels or civil aircraft, including being subject to
capture. 276
15.14.2 Acquisition of Enemy Character by Vessels or Aircraft Through Conduct.
Certain conduct by vessels or aircraft may lead them to acquire enemy character and make them
liable to treatment as either (1) enemy warships or military aircraft, or (2) enemy merchant ships
or civil aircraft.
Humanitarian assistance given to the wounded, sick, or shipwrecked of belligerent forces
by neutral vessels does not lead to such vessels acquiring enemy character if such assistance is
provided in accordance with the GWS-Sea. 277
15.14.2.1 Acquiring the Character of an Enemy Warship or Military Aircraft.
Neutral merchant vessels and civil aircraft acquire enemy character, and may be treated by a
belligerent as enemy warships and military aircraft, when engaged in either of the following
acts: 278

taking a direct part in the hostilities on the side of the enemy; or

acting in any capacity as a naval or military auxiliary to the enemys armed forces. 279

For example, such vessels and aircraft may be made the object of attack outside of neutral
territory. 280
15.14.2.2 Acquiring the Character of an Enemy Merchant Vessel or Civil
Aircraft. Neutral merchant vessels and civil aircraft acquire enemy character and may be treated

276

Refer to 13.5 (Enemy Merchant Vessels).

277

Refer to 7.4.6 (Collection and Care of the Wounded, Sick, and Shipwrecked by Neutral Vessels); 7.12.1.3
(Authorized Neutral Civilian Hospital Ships).
278

See, e.g., 2007 NWP 1-14M 7.5.1 (Neutral merchant vessels and civil aircraft acquire enemy character and
may be treated by a belligerent as enemy warships and military aircraft when engaged in either of the following acts:
1. Taking a direct part in the hostilities on the side of the enemy 2. Acting in any capacity as a naval or military
auxiliary to the enemys armed forces.); 1955 NWIP 10-2 501a (Neutral merchant vessels and aircraft acquire
enemy character and are liable to the same treatment as enemy warships and military aircraft (see paragraph 503a)
when engaging in the following acts: 1. Taking a direct part in the hostilities on the side of an enemy; 2. Acting in
any capacity as a naval or military auxiliary to an enemys armed forces.).
279

See also TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 321 (The general principle involved is
reasonably clear, and no attempt need be made to enumerate all of the acts that may result in this assimilation to an
enemys armed forces. It is not the mere fact of assisting a belligerent that permits this severe treatment. Nor is it
simply the consideration that the belligerent exercises a close control and direction over the neutral merchant vessel.
The decisive consideration is rather that the services rendered are in direct support of the belligerents military
operations. It is this support, leading as it does to the identification of the neutral merchant vessel (or aircraft) with
the belligerents naval or military forces, that permits a treatment similar to that meted out to these forces.).
280

Refer to 13.4 (Enemy Warships).

978

by a belligerent as enemy merchant vessels or civil aircraft when engaged in either of the
following acts: 281

operating directly under enemy control, orders, charter, employment, or direction; or

resisting an attempt to establish identity, including resisting visit and search. 282

For example, such vessels and aircraft may be captured and, under certain circumstances,
destroyed. 283
15.15 CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT
Certain neutral merchant vessels and civil aircraft may be captured outside neutral
territory.
15.15.1 Grounds for the Capture of Neutral Vessels and Aircraft. Neutral-flagged
merchant vessels or neutral-marked civil aircraft that have acquired enemy character are liable to
capture. 284 In addition, neutral merchant vessels and civil aircraft are, in general, liable to
capture by a belligerent States warships and military aircraft if performing any of the following
acts: 285

carrying contraband; 286

281

See, e.g., 2007 NWP 1-14M 7.5.2 (Neutral merchant vessels and civil aircraft acquire enemy character and
may be treated by a belligerent as enemy merchant vessels or civil aircraft when engaged in either of the following
acts: 1. Operating directly under enemy control, orders, charter, employment, or direction 2. Resisting an attempt to
establish identity, including resisting visit and search.); 1955 NWIP 10-2 501b (Neutral merchant vessel and
aircraft acquire enemy character and are liable to the same treatment as enemy merchant vessels and aircraft (see
paragraph 503b), when engaging in the following acts: 1. Operating directly under enemy control, orders, charter,
employment, or direction; 2. Resisting an attempt to establish identity, including visit and search.).
282

Refer to 15.13.4.1 (Use of Force During Visit and Search).

283

Refer to 13.5 (Enemy Merchant Vessels).

284

Refer to 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
285

2007 NWP 1-14M 7.10 (Neutral merchant vessels and civil aircraft are liable to capture by belligerent
warships and military aircraft if engaged in any of the following activities: 1. Avoiding an attempt to establish
identity 2. Resisting visit and search 3. Carrying contraband 4. Breaching or attempting to breach blockade 5.
Presenting irregular or fraudulent papers; lacking necessary papers; or destroying, defacing, or concealing papers 6.
Violating regulations established by a belligerent within the immediate area of naval operations 7. Carrying
personnel in the military or public service of the enemy 8. Communicating information in the interest of the
enemy.); 1955 NWIP 10-2 503d (NEUTRAL MERCHANT VESSELS AND AIRCRAFT are in general liable to capture if
performing any of the following acts: 1. Carrying contraband (see paragraph 631d). 2. Breaking, or attempting to
break, blockade (see paragraph 632g). 3. Carrying personnel in the military or public service of an enemy. 4.
Transmitting information in the interest of an enemy. 5. Avoiding an attempt to establish identity, including visit
and search. 6. Presenting irregular or fraudulent papers; lacking necessary papers; destroying, defacing, or
concealing papers. 7. Violating regulations established by a belligerent within the immediate area of naval
operations (see paragraph 430b).).
286

Refer to 15.12 (Neutral Commerce and Carriage of Contraband).

979

carrying personnel in the military or public service of the enemy; 287

communicating information in the interest of the enemy; 288

breaching or attempting to breach a blockade; 289

violating regulations established by a belligerent within the immediate area of naval

operations; 290

avoiding an attempt to establish identity, including visit and search; 291 or

presenting irregular or fraudulent papers; lacking necessary papers; or destroying,

defacing, or concealing papers. 292

15.15.2 Procedure for Capture and Condemnation. Belligerent States have discretion in
formulating their procedures for conducting the capture and condemnation of neutral merchant
vessels and aircraft. 293 Prior exercise of the right of visit and search is not required for the

287

Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (The neutral vessel shall be seized and in
general subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined for
transporting enemy troops ... .). Consider 1909 DECLARATION OF LONDON art. 45 (A neutral vessel will be
condemned and will, in a general way, receive the same treatment as a neutral vessel liable to condemnation for
carriage of contraband: (1) If she is on a voyage specially undertaken with a view to the transport of individual
passengers who are embodied in the armed forces of the enemy, . (2) If, to the knowledge of either the owner,
the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in
the course of the voyage, directly assist the operations of the enemy.).
288

Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (The neutral vessel shall be seized and in
general subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined ... for
the transmission of information on behalf of the enemy.). Consider 1909 DECLARATION OF LONDON art. 45 (A
neutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable to
condemnation for carriage of contraband: (1) If she is on a voyage especially undertaken with a view to the
transmission of intelligence in the interest of the enemy.).
289

Refer to 13.10.4 (Breach and Attempted Breach of Blockade).

290

Refer to 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

291

Refer to 15.13.4 (Procedure for Visit and Search of Merchant Vessels and Aircraft).

292

See Carrington v. Merchants Ins. Co., 33 U.S. 495, 521-22 (1834) (Story, J.) (The belligerent has a right to
require a frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if
the latter will make use of fraud, and false papers, to elude the just rights of the belligerents, and to cloak their own
illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels
with the party and his offending instrument during the whole course of the voyage, and until the enterprise has, in
the understanding of the party himself, completely terminated. There are many analogous cases in the prize law,
where fraud is followed by similar penalties. Thus, if a neutral will cover up enemys property under false papers,
which also cover his own property, prize courts will not disentangle the one from the other, but condemn the whole
as good prize.).

293

See 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 2 (Both the detention of the vessel and its
crew for violation of neutrality shall be made in accordance with the procedure which best suits the state effecting it
and at the expense of the transgressing ship. Said state, except in the case of grave fault on its part, is not
responsible for damages which the vessel may suffer.).

980

capture of neutral-flagged vessels or neutral-marked aircraft that have acquired enemy status, if
positive determination of status can be obtained by other means. 294
Captured neutral merchant vessels and civil aircraft are sent to a port or airfield under a
belligerent States jurisdiction as a prize for adjudication by a prize court. Ordinarily, a
belligerent States warship will place a prize master and prize crew on board a captured vessel
for this purpose. Should that be impracticable, the prize may be escorted into port by a
belligerent States warship or military aircraft. In the latter circumstances, the prize must obey
the instructions of its escort or risk forcible measures. 295
A prize may not be brought into a neutral port, except under emergency circumstances. 296
A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral
waters. 297
15.15.2.1 Use of Force During Capture. Neutral vessels or aircraft attempting to
resist proper capture lay themselves open to forcible measures by a belligerent States warships
and military aircraft, and assume the risk of resulting damage. 298 The same rule applies to
resistance during visit and search. 299
15.15.3 Destruction of Neutral Prizes. Although the destruction of a neutral prize is not
absolutely forbidden, it involves a much more serious responsibility than the destruction of an
enemy prize. 300 Thus, a higher standard is applicable than for the destruction of enemy prizes. 301

294

1955 NWIP 10-2 502a (Historically, visit and search was considered the only legally acceptable method for
determining whether or not a merchant vessel was subject to capture. It is now recognized that changes in warfare
have rendered this method either hazardous or impracticable in many situations. In the case of enemy merchant
vessels and aircraft and neutral merchant vessels and aircraft acquiring enemy character as described in the
preceding article, the belligerent right of capture (and, exceptionally, destruction as described in paragraph 503b)
need not be preceded by visit and search, provided that a positive determination of status can be obtained by other
methods.).
295

2007 NWP 1-14M 7.10 (Captured vessels and aircraft are sent to a port or airfield under belligerent jurisdiction
as a prize for adjudication by a prize court. Ordinarily, a belligerent warship will place a prize master and prize
crew on board a captured vessel for this purpose. Should that be impracticable, the prize may be escorted into port
by a belligerent warship or military aircraft. In the latter circumstances, the prize must obey the instructions of its
escort or risk forcible measures.); 1998 NWP 9 7.10 (substantially the same).
296

Refer to 15.9.5 (Prizes in Neutral Ports or Roadsteads).

297

HAGUE XIII art. 4 (A Prize Court cannot be set up by a belligerent on neutral territory or on a vessel in neutral
waters.).

298

See, e.g., 2007 NWP 1-14M 7.10 (Neutral vessels or aircraft attempting to resist proper capture lay themselves
open to forcible measures by belligerent warships and military aircraft and assume all risk of resulting damage.);
1989 NWP 9 7.9 (same).
299

Refer to 15.13.4.1 (Use of Force During Visit and Search).

300

1955 NWIP 10-2 509e (Although the destruction of a neutral prize is not absolutely forbidden, it involves a
much more serious responsibility than the destruction of an enemy prize.).
301

Refer to 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels).

981

Every reasonable effort should be made to avoid destruction of captured neutral vessels
and aircraft. 302 A capturing officer, therefore, should not order such destruction without being
entirely satisfied that the prize can neither be sent to a belligerent State port or airfield nor, in his
or her opinion, properly be released. 303
Should it become necessary that the prize be destroyed, the capturing officer must
provide for the safety of the passengers and crew. 304 In that event, all documents and papers
relating to the prize should be preserved. If practicable, the personal effects of passengers should
also be safeguarded. 305
15.15.4 Personnel on Board Captured Neutral Vessels and Aircraft.
15.15.4.1 Officers and Crews of Captured Neutral Merchant Vessels and Civil
Aircraft. The officers and crews of captured neutral merchant vessels and civil aircraft who are
nationals of a neutral State should not be made POWs, 306 even if the vessel or aircraft has
acquired the character of enemy merchant vessels or aircraft. 307 However, if the vessel or
aircraft has acquired the character of an enemy warship or military aircraft, 308 the officers and
crew may be held as POWs. 309
302

2006 AUSTRALIAN MANUAL 6.59 (Every effort should be made to avoid destruction of a captured neutral
vessel.).

303

1955 NWIP 10-2 509e (A capturing officer, therefore, should never order such destruction without being
entirely satisfied that the military reasons therefore justify it, i.e. under circumstances such that a prize can neither be
sent in nor, in his opinion, properly released.).
304

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (The ship shall not be rendered incapable
of navigation before the crew and passengers have been placed in safety.); Treaty for the Limitation and Reduction
of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (In particular, except in the case of persistent
refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel
or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed
passengers, crew and ships papers in a place of safety. For this purpose the ship's boats are not regarded as a place
of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the
proximity of land, or the presence of another vessel which is in a position to take them on board.). Consider
Procs-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22,
1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).
305

1955 NWIP 10-2 509e (Should the necessity for the destruction of a neutral prize arise, it is the duty of the
capturing officer to provide for the safety of the passengers and crew. All documents and papers relating to a neutral
prize should be saved. If practicable, the personal effects of passengers should be saved. Every case of destruction
of a neutral prize should be reported promptly to a higher command.).
306

1955 NWIP 10-2 513a (The officers and crews of captured neutral merchant vessels and aircraft who are
nationals of a neutral State should not be made prisoners of war.). See also TUCKER, THE LAW OF WAR AND
NEUTRALITY AT SEA 347 (In seizing neutral vessels the belligerent incurs certain duties that have long enjoyed the
sanction of state practice. Unless the neutral nationals serving as officers and crew of neutral vessels have taken a
direct part in the hostilities they may not be treated as prisoners of war.).
307

Refer to 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

308

Refer to 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

309

See 2007 NWP 1-14M 7.10.2 (This rule applies equally to the officers and crews of neutral vessels and aircraft
that assumed the character of enemy merchant vessels or aircraft by operating under enemy control or resisting visit
and search. If, however, the neutral vessels or aircraft had taken a direct part in the hostilities on the side of the

982

15.15.4.2 Enemy Nationals Found Onboard Neutral Merchant Vessels and Civil
Aircraft. Belligerents have a right to remove certain enemy persons from neutral vessels or
aircraft, even if there are no grounds for the capture of the vessel or aircraft as prize. 310 Enemy
nationals found onboard a neutral States merchant vessels or civil aircraft as passengers who
are:

a current member of an enemy military force; 311

en route to join, or be incorporated into, an enemys armed forces;

employed in the public service of the enemy State; or

engaged in, or suspected of engagement in, service in the interests of the enemy State; 312

also may be interned until a determination of their status has been made. 313
enemy or had served in any way as a naval or military auxiliary for the enemy, they thereby assumed the character
of enemy warships or military aircraft and, upon capture, their officers and crew may be interned as prisoners of
war.); 1955 NWIP 10-2 513a endnote 41 (This paragraph is applicable as well to the officers and crews,
nationals of a neutral state, of captured neutral merchant vessels and aircraft which have acquired enemy character
and which are liable to the same treatment as enemy merchant vessels and aircraft, as described in paragraph 501b.
Hence, a distinction must be made between the treatment accorded to neutral merchant vessels acquiring enemy
character, and the treatment accorded to the personnel of such vessels. There is a clear exception, however, in the
case of personnel of neutral vessels and aircraft which take a direct part in the hostilities on the side of an enemy or
which serve in any way as a naval or military auxiliary for an enemy.).
310

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 328 (Despite neutral opposition during World War I to
conceding any belligerent right to remove enemy persons from neutral merchant vessels at sea, it would now seem
thatin principlethe practice of states may be regarded as having sanctioned this belligerent measure.).
311

Consider DECLARATION OF LONDON art. 47 (Any individual embodied in the armed forces of the enemy who is
found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the
capture of the vessel.).
312

CDR Joe Munster, Removal of Persons from Neutral Shipping, THE JAG JOURNAL: THE OFFICE OF THE JUDGE
ADVOCATE JOURNAL OF THE NAVY 3, 18 (Oct. 1952) (It appears unlikely that the old rules concerning the removal
of persons from neutral shipping can much longer survive, even extended to include reservists. With the increasing
development of science it would appear foolhardly for a nation to permit an Oppenheimer, a Millikan, a Fermi, an
Einstein, or any accomplished atomic or neuclear [sic] physicist to return to his own country, if that country be an
opposing belligerent. An expert in guided missiles would be more important to a belligerent country than an
ordinary soldier; and notwithstanding the expert is not embodied in the armed services it would appear that the
rules and regulations of international law must be amended to bring them into line with the requirements of
belligerent necessity. It does not appear that neutrals can properly maintain that no persons other than those
connected with the military, either entirely or in a reserve status, may be removed from neutral shipping.).
313

2007 NWP 1-14M 7.10.2 (Enemy nationals found on board neutral merchant vessels and civil aircraft as
passengers who are actually embodied in the military forces of the enemy, who are en route to serve in the enemys
armed forces, who are employed in the public service of the enemy, or who may be engaged in or suspected of
service in the interests of the enemy may be made prisoners of war. All such enemy nationals may be removed from
the neutral vessel or aircraft whether or not there is reason for its capture as a neutral prize.); 1955 NWIP 10-2
513b (Enemy nationals found on board neutral merchant vessels and aircraft as passengers who are actually
embodied in the military forces of an enemy, or who are en route to serve in an enemys military forces, or who are
employed in the public service of an enemy, or who may be engaged in or suspected of service in the interests of an
enemy may be made prisoners of war.).

983

15.16 BELLIGERENT FORCES TAKING REFUGE IN NEUTRAL TERRITORY

Neutral States have rights and duties with respect to the treatment of belligerent State
forces that enter, or seek to enter, their territory. Generally, a neutral State is required to intern a
belligerent States forces to ensure that they do not return to the armed conflict. 314
15.16.1 Discretion of the Neutral State in Offering Asylum to Belligerent Forces Seeking
Refuge. A neutral State has discretion in whether to permit belligerent forces seeking refuge to
enter its territory.
15.16.1.1 Neutral Right to Deny Access or to Impose Conditions on Belligerent
Forces. A neutral State is not bound to permit a belligerent States forces to enter its territory. 315
The neutral State may impose conditions on belligerent forces seeking refuge in its territory. 316
In cases of large bodies of belligerent forces seeking refuge in neutral territory, these conditions
will usually be stipulated in an agreement concluded by the representatives of the neutral State
and the senior officer of the forces. 317
15.16.1.2 Neutral Duty to Disarm and Intern the Belligerent Forces. If the
belligerent forces are permitted to seek refuge in neutral territory, the neutral State must take
appropriate measures to ensure that these forces will no longer participate in the armed conflict.

314

For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE
SECOND WORLD WAR (SEPTEMBER 1, 1939 - JUNE 30, 1947) 557 (1948) (Neutral States. The Swiss Government
agreed, in June 1940, to receive on their territory and to intern 32,000 men of the 45th French Army Corps and
13,000 men of the 2nd Polish Division. After the repatriation of the French internees in January 1941, the Polish
Division remained, and in 1943, the authorities interned 23,000 men of the Italian forces. In addition, individual
internments during hostilities amounted to 7,000 combatants belonging to 37 different nationalities. In September
1939, Rumania received 20,000 men of the Polish forces, who were interned. Hungary received 36,000, Lithuania
14,000 and Latvia 1,600. Other neutral countries gave refuge to a limited number of military internees of various
nationalities.); Ex parte Toscano, 208 F. 938, 939 (S.D. CA 1913) (That for several days prior to April 13, 1913,
an armed force of the Constitutionalist army attacked the same town of Naco, and on April 13, 1913, the petitioners
and other Federalist troops occupying the said town were defeated and driven out of said town of Naco, and were
pursued by the victorious Constitutionalist troops, and to avoid surrendering to the Constitutionalist force, the
Federalist troops fled with their arms across the boundary line between the United States and Mexico, and sought
refuge and asylum from the pursuing enemy in the United States. That immediately upon crossing the said neutral
boundary and reaching United States soil, the said petitioners and other Federalist troops belonging to said
belligerent army voluntarily surrendered themselves to the armed forces of the United States, which said armed
forces of the United States, acting under authority of the President of the United States, thereupon disarmed said
belligerent troops and detained and interned them pending the removal of said belligerent troops to a point within
the territory of the United States at a distance from the theater of said civil war.).
315

1956 FM 27-10 (Change No. 1 1976) 533 (A neutral is not bound to permit belligerent troops to enter its
territory.).
316

1956 FM 27-10 (Change No. 1 1976) 534 (If troops or soldiers of a belligerent are permitted to seek refuge in
neutral territory, the neutral is authorized to impose the terms upon which they may do so.).
317
1956 FM 27-10 (Change No. 1 1976) 534 (In cases of large bodies of troops seeking refuge in neutral territory,
these conditions will usually be stipulated in a convention drawn up by the representatives of the neutral power and
the senior officer of the troops.).

984

If such measures were not taken, then the neutral States territory might serve as an unlawful
sanctuary or base of operations for the belligerent. 318
Thus, belligerent forces received in neutral territory must be disarmed, and appropriate
measures must be taken to prevent their leaving the neutral State. 319 In particular, a neutral State
that receives on its territory personnel belonging to the belligerent forces shall intern them, as far
as possible, at a distance from the theater of war. 320 For example, if belligerent military aircraft
land in a neutral State, that State must intern the aircraft, aircrew, and accompanying military
personnel for the duration of the war. 321
15.16.2 Neutral Reception of the Wounded, Sick, and Shipwrecked. Like other
belligerent personnel received in neutral land territory, the wounded, sick, and shipwrecked who
are received within a neutral jurisdiction are also generally to be guarded so that they can no
longer participate in hostilities.
However, ground transports of belligerent wounded and sick personnel may be
authorized to pass through neutral land territory by special agreement. 322
15.16.2.1 Wounded, Sick, and Shipwrecked Landed in Neutral Ports. Wounded,
sick, or shipwrecked persons who are landed in neutral ports with the consent of the local
authorities shall, failing arrangements to the contrary between the neutral State and the
belligerent States, be so guarded by the neutral State, where so required by international law, that
such persons cannot again take part in operations of war. 323
The costs of hospital accommodation and internment shall be borne by the belligerent
State on whom the wounded, sick, or shipwrecked persons depend. 324
15.16.2.2 Wounded, Sick, and Shipwrecked Taken Aboard a Neutral States
Warship or Aircraft. If wounded, sick, or shipwrecked persons are taken on board a neutral
318

Refer to 15.5 (Prohibition on the Use of Neutral Territory as a Base of Operations).

319

1956 FM 27-10 (Change No. 1 1976) 533 (On the other hand, it may permit them to do so without violating its
neutrality, but the troops must be interned or confined in places designated by the neutral. They must be disarmed
and appropriate measures must be taken to prevent their leaving the neutral country.).
320

HAGUE V art. 11 (A neutral Power which receives on its territory troops belonging to the belligerent armies shall
intern them, as far as possible, at a distance from the theatre of war.).
321

FINAL REPORT ON THE PERSIAN GULF WAR 627 (Under Article 11 of Hague V and traditional law of war
principles regarding neutral rights and obligations, when belligerent military aircraft land in a nation not party to a
conflict, the neutral must intern the aircraft, aircrew, and accompanying military personnel for the duration of the
war.).

322

Refer to 15.18.1 (Authorized Ground Transports of Wounded and Sick Combatants Through Neutral Territory).

323

GWS-SEA art. 17 (Wounded, sick or shipwrecked persons who are landed in neutral ports with the consent of
the local authorities, shall, failing arrangements to the contrary between the neutral and the belligerent Powers, be so
guarded by the neutral Power, where so required by international law, that the said persons cannot again take part in
operations of war.).
324

GWS-SEA art. 17 (The costs of hospital accommodation and internment shall be borne by the Power on whom
the wounded, sick or shipwrecked persons depend.).

985

States warship or a neutral States military aircraft, it shall be ensured, where so required by
international law, that they can take no further part in operations of war. 325
15.16.2.3 Wounded and Sick Disembarked From Belligerent Medical Aircraft.
Unless otherwise agreed between the neutral State and the belligerent States, the wounded and
sick who are disembarked, with the consent of the local authorities, on neutral territory by
medical aircraft, shall be detained by the neutral State, where so required by international law, in
such a manner that they cannot again take part in military operations. 326
The cost of their accommodation and internment shall be borne by the State on which
they depend. 327
15.16.3 Conditions of Internment in a Neutral State. The neutral State may keep
belligerent forces in camps and even confine them in military compounds or in places set apart
for the purpose of internment. 328 Belligerent forces should be interned, as far as possible, at a
distance from the theater of war. 329
15.16.3.1 Provision of POW Treatment and Application of the GWS and GWSSea by Analogy. Under Article 4B(2) of the GPW, persons who are entitled to POW status if
they fall into the power of the enemy during international armed conflict are generally entitled to
POW treatment, as a minimum, if they are interned by a neutral State under its duties under
international law. 330

325

GWS-SEA art. 15 (If wounded, sick, or shipwrecked persons are taken on board a neutral warship or a neutral
military aircraft, it shall be ensured, where so required by international law, that they can take no further part in
operations of war.).
326

GWS art. 37 (Unless otherwise agreed between the neutral Power and the Parties to the conflict, the wounded
and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall
be detained by the neutral Power, where so required by international law, in such a manner that they cannot again
take part in operations of war.); GWS-SEA art. 40 (same).
327

GWS art. 37 (The cost of their accommodation and internment shall be borne by the Power on which they
depend.); GWS-SEA art. 40 (same).
328

HAGUE V art. 11 (It may keep them in camps and even confine them in fortresses or in places set apart for this
purpose.).

329

HAGUE V art. 11 (A neutral Power which receives on its territory troops belonging to the belligerent armies shall
intern them, as far as possible, at a distance from the theatre of war.). Refer to 9.11.4.1 (Avoidance of the
Combat Zone); 9.11.3 (Location of POW Camps).

330

GPW art. 4B (The following shall likewise be treated as prisoners of war under the present Convention: (2)
The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral
or non-belligerent Powers on their territory and whom these Powers are required to intern under international law,
without prejudice to any more favourable treatment which these Powers may choose to give and with the exception
of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to
the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power.
Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to
perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice
to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and
treaties.). Refer to 9.3.3 (Persons Entitled to POW Treatment).

986

Provisions of the GWS and GWS-Sea apply by analogy to wounded and sick, to
members of the medical personnel, and to chaplains of the armed forces of the parties to the
conflict, who are received or interned in neutral territory, as well as to deceased persons of a
State that is a party to a conflict found there. 331
15.16.3.2 Belligerent State Acting as the Protecting Power. Where diplomatic
relations exist between the parties to the conflict and the neutral or non-belligerent Power
concerned, the parties to a conflict on whom these persons depend shall be allowed to perform
towards them the functions of a Protecting Power as provided in the GPW, without prejudice to
the functions that these parties normally exercise in conformity with diplomatic and consular
usage and treaties. 332
15.16.3.3 Reimbursement of Expenses at the Conclusion of Peace. In the absence
of a special convention to the contrary, the neutral Power shall supply the interned with the food,
clothing, and relief required by humanity. 333 At the conclusion of peace, the neutral Powers
expenses incurred supporting the internment shall be made good. 334
The provisions of the GPW regarding the costs of POW internment and the financial
resources of POWs are not applicable to the situation of persons treated as POWs who have been
interned by a neutral State. 335

331

GWS art. 4 (Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded
and sick, and to members of the medical personnel, and to chaplains of the armed forces of the Parties to the
conflict, received or interned in their territory, as well as to dead persons found.); GWS-SEA art. 5 (Neutral
Powers shall apply by analogy the provisions of the present Convention to the wounded, sick and shipwrecked, and
to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received or
interned in their territory, as well as to dead persons found.).
332

GPW art. 4B(2) (Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend
shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention,
without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular
usage and treaties.).
333

HAGUE V art. 12 (In the absence of a special convention to the contrary, the neutral Power shall supply the
interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by
the internment shall be made good.).

334

For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 293 footnote 2
(1909) (The most striking example of internment occurred in 1871 during the Franco-Prussian war when over
80,000 French troops under General Clinchant entered Swiss territory and were interned for the remainder of the
war; France at the conclusion of the war paid to Switzerland some 11 million francs for their maintenance.).
335

See GPW art. 4B (The following shall likewise be treated as prisoners of war under the present Convention:
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by
neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international
law, without prejudice to any more favourable treatment which these Powers may choose to give and with the
exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the
Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting
Power.) (emphasis added).

987

15.16.4 Parole of Belligerent Personnel Interned in Neutral Territory. The neutral State
shall decide whether interned officers can be left at liberty on giving their parole not to leave the
neutral territory without permission. 336
Neutral States may release enlisted personnel on parole, prescribe penalties for violations
of parole, and authorize personnel to depart neutral territory temporarily so long as these actions
remain consistent with its obligations as a neutral State. 337 The granting of leave to an interned
officer to return to his or her own country, however, would be considered an exceptional
measure, and a neutral State inclined to grant such permission would be prudent in the first
instance to obtain the consent of the opposing belligerent State.
A neutral State may demand the return of persons who have been released on parole but
have left the neutral State in violation of their parole. 338 If such persons return to the State in
whose armed forces they serve, that State is obliged to return them to the neutral State at its
request. 339
15.16.5 Military Equipment and Supplies of Belligerent Forces Taking Refuge. The
munitions, arms, vehicles, equipment, and other supplies that the interned forces are allowed to
bring with them into a neutral State are likewise detained by the neutral State. A belligerent
States military equipment and supplies, whether its own or captured, which are brought on to
neutral territory must be returned at the end of the armed conflict to the State to which the items
336

HAGUE V art. 11 (It shall decide whether officers can be left at liberty on giving their parole not to leave the
neutral territory without permission.).

337

Cf. JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
147-48 (1920) (Article 57, paragraph 3, of the [1899 Hague] Regulations leaves it to the neutral State to decide
whether interned officers may be left at liberty on giving their parole not to leave the neutral territory without
permission. It does not say upon what conditions a permission to leave this territory should be predicated; neither
does it provide any penalty for violation of the parole. Finally, it does not mention either non-commissioned
officers or private soldiers. The Japanese delegation proposed to fill this gap by deciding: (1) that the interned men,
without distinction of rank, cannot be liberated nor permitted to reenter their country except with the consent of the
adverse party under conditions fixed by it; (2) that the parole given in such cases to the neutral State would be
equivalent to a parole given to the adverse party. Without ignoring the merits of this proposal, the Commission
preferred to continue the existing text of the Regulations. It considered that permission given to an interned man to
return temporarily to his country is something too exceptional to require regulation in express terms. There was no
difficulty, moreover, in recognizing that the Japanese proposal conforms to recent precedents and contains a useful
hint for a neutral State desirous of remaining entirely free from responsibility.).
338

For example, Robert Lansing, The Secretary of State to the German Ambassador, Nov. 16, 1915, reprinted in
JAMES BROWN SCOTT, DIPLOMATIC CORRESPONDENCE BETWEEN THE UNITED STATES AND GERMANY AUGUST 1,
1914 - APRIL 6, 1917, 163 (1918) (It will be recalled that during the Russo-Japanese War, when the Russian Ship
Lena was interned by the United States Authorities on the Pacific coast, three officers of that ship escaped and
returned to Russia; and that upon the Government of the United States calling the matter to the attention of the
Russian Government it immediately caused the escaped officers to return to American jurisdiction where they were
interned for the remainder of the war. This precedent this Government regards as in accord with the best practice of
nations and applicable to the cases which I have had the honor to present in this note.).
339

1956 FM 27-10 (Change No. 1 1976) 535 (Officers and men interned in a neutral State may in the discretion of
that State be released on their parole under conditions to be prescribed by the neutral State. If such persons leave the
neutral State in violation of their parole, the State in whose armed forces they serve is obliged to return them to the
neutral State at its request.).

988

belong. Similarly, captured war material found in the possession of the belligerent forces that
take refuge on neutral territory is the property of their State, regardless of its origin. 340
15.16.6 Retention of Medical Personnel and Chaplains in a Neutral State. Medical and
religious personnel serving with belligerent forces that are interned in neutral territory may be
retained only in so far as the health and the numbers of such forces so require. 341 Subject to
these requirements, they must be returned as soon as possible to the State to which they
belong. 342 Chaplains are in the same position, their retention being dependent upon the spiritual
needs of the interned forces. 343 Medical personnel and chaplains who are retained must be
accorded similar treatment to those retained under the GPW. 344
15.17 POWS OR INTERNEES BROUGHT TO, OR RECEIVED BY, A NEUTRAL STATE
15.17.1 Escaped POWs Received by a Neutral State. POWs who have escaped to neutral
territory are deemed to have successfully escaped from the Detaining Power. 345
A neutral State may deny the admission of escaped POWs or receive them. A neutral
State that receives escaped POWs shall leave them at liberty. If it allows them to remain in its
territory, it may assign them a place of residence. 346
15.17.2 POWs Brought Into a Neutral State by Belligerent Forces Taking Refuge. POWs
brought into a neutral State by belligerent forces that take refuge in the neutral State are treated
like POWs who have escaped to neutral territory. 347 This means that the POWs regain their

340

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
145 (1920) (What becomes of the war material captured by troops and brought with them into the territory of a
neutral State? This question was put by the Dutch delegation, which made the following motion: War material
captured from the enemy by an armed force and brought with it while taking refuge on neutral territory shall be
restored by the Government thereof to the State from which it was taken after the conclusion of peace. But the
Netherland delegation did not insist on its motion in the face of the objection made to it. On the one hand, the case
of war material captured from the enemy cannot be assimilated to the case of prisoners of war. The capture of
matriel creates for the captor an immediate right of ownership, which places this matriel on the same footing as
the captors own matriel. On the other hand, even if the captors right to the property should become uncertain,
owing to his taking refuge in the neutral territory, there would be no reason for making the neutral State the judge of
the question and for imposing on it the invidious duty of examining the matriel brought into its territory by a
belligerent force to see what has been taken from the enemy and what belongs to the force under some other title.).
341

Refer to 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

342

Refer to 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).

343

Refer to 4.9.1.3 (Chaplains Attached to the Armed Forces).

344

Refer to 7.9.5 (Rights and Privileges of Retained Personnel).

345

Refer to 9.25.1.1 (Types of Successful Escapes).

346

HAGUE V art. 13 (A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it
allows them to remain in its territory it may assign them a place of residence.).
347

HAGUE V art. 13 (A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it
allows them to remain in its territory it may assign them a place of residence. The same rule applies to prisoners of
war brought by troops taking refuge in the territory of a neutral Power.).

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liberty from the belligerent forces that previously held them captive, and that if the neutral State
allows them to remain on its territory, it may assign them a place of residence.
POWs brought into a neutral State by belligerent forces taking refuge are released from
their captivity by the belligerent forces that previously held them because of a concern that the
detention operations by the belligerent forces would constitute a form of continuation of
hostilities on neutral territory and because the POWs probably would have been freed had the
belligerent forces not taken refuge in neutral territory. 348
15.17.3 POWs Brought to a Neutral State by Special Agreement Among the Neutral State
and the Parties to a Conflict. POWs may be brought to a neutral State for internment by a special
agreement among the neutral State and the parties to the conflict. 349 Wounded and sick POWs
may also be brought to neutral countries for accommodation by a special agreement among the
neutral State and the parties to the conflict. 350
Such special agreements must not adversely affect the situation of POWs, nor restrict the
rights that the GPW confers upon them. 351
15.17.4 Certain Classes of Protected Persons Brought to a Neutral State by Special
Agreement Among the Neutral State and the Parties to a Conflict. Certain classes of civilian
internees may be brought to a neutral State for internment by a special agreement among the
neutral State and the parties to the conflict. 352 Agreements may also be concluded for children
under the age of fifteen who are orphaned or separated from their families to stay in neutral
countries. 353

348

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
144 (1920) (Ought prisoners of war brought into the territory of a neutral State by belligerent troops who take
refuge there, to become free, or should they be interned like the troops? Upon the motion of the Netherland
delegation the Commission declared for the first solution. The only obstacle to the freedom of the prisoners here
referred to lies in the actual power that the belligerent forces which captured them are exercising over them, and this
actual power vanishes the moment the captor takes refuge in the territory of a neutral State. Moreover, troops taking
this extreme step, do so in order to escape from an enemy who is pressing them, and from a capitulation whose
effect would of course be to free the prisoners in their power.); Caleb Cushing, Attorney General, Belligerent
Asylum, Apr. 28, 1855, 7 OPINIONS OF THE ATTORNEY GENERAL 122, 131 (1856) (From all these premises, the
consequences are inevitable in regard to the prisoners on board the Sitka. So long as they remained on board that
ship, they were in the territory and jurisdiction of her sovereign. There, the neutral has no right to meddle with
them. If, indeed, they be landed, then they pass from the jurisdiction of the belligerent to that of the neutral; they
become practically free, because their detention is forcible, and force cannot be exercised on the neutral territory;).
349

Refer to 9.36.3 (Agreements to Intern POWs in Neutral Territory).

350

Refer to 9.36.2 (Accommodation in Neutral Countries).

351

Refer to 9.1.2.2 (Special Agreements Under the GPW).

352

Refer to 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain
Classes of Internees).
353

Refer to 4.20.1.1 (Children Under Fifteen Who Are Orphaned or Separated).

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Such special agreements must not adversely affect the situation of protected persons nor
restrict the rights that the GC confers upon them. 354
15.18 AUTHORIZED PASSAGE OF WOUNDED AND SICK COMBATANTS THROUGH NEUTRAL
TERRITORY
Ground transports of wounded and sick combatants may pass through a neutral States
land territory with the permission of the neutral State. Subject to rules established by the neutral
State, medical aircraft of belligerent States may fly over the territory of neutral States, land on it
in case of necessity, or use it as a port of call.
15.18.1 Authorized Ground Transports of Wounded and Sick Combatants Through
Neutral Territory. A neutral State may authorize the passage into its territory of wounded or sick
persons belonging to belligerent forces, on condition that such transports shall carry neither
personnel nor material of war. 355 In such a case, the neutral Power is bound to take whatever
measures of safety and control are necessary for the purpose. 356
However, if any such persons are committed to the care of the neutral State or remain in
the neutral States territory, they must be guarded so as to ensure they do not take part again in
the war. 357
15.18.1.1 Discretion of the Neutral State to Authorize Such Passage. The neutral
State has the right, but not the obligation, to permit such passage; if provided, such passage
should be provided on an impartial basis to all belligerent States. 358
It is not necessary to obtain the consent of the other belligerent States before permitting
the passage of sick and wounded personnel, but it would be advisable to do so if considerable
numbers are involved. 359

354

Refer to 10.1.1.2 (Special Agreements Under the GC).

355

HAGUE V art. 14 (A neutral Power may authorize the passage into its territory of wounded or sick belonging to
the belligerent armies, on condition that the trains bringing them shall carry neither personnel or material of war.).

356

HAGUE V art. 14 (In such a case, the neutral Power is bound to take whatever measures of safety and control are
necessary for the purpose.).

357

Refer to 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).

358

1956 FM 27-10 (Change No. 1 1976) 541 (The neutral power is under no obligation to permit the passage of a
convoy of sick and wounded through its territory, but when such a convoy is permitted to pass, the neutral must
exercise control, must see that neither personnel nor material other than that necessary for the care of the sick and
wounded is carried, and generally must accord impartiality of treatment to the belligerents.); 2004 UK MANUAL
8.162 (It is under no obligation to do so but if the privilege is accorded, it must be given to all belligerent states
impartially.).
359

For example, 2004 UK MANUAL 8.162.1 footnote 427 (After the battle of Sedan in the Franco-German war of
187071, the German General Staff wished to send railway trains conveying wounded to Germany through Belgium
and Luxembourg. The French Minister of War protested. He argued, rightly, that this would free lines to bring
forward fresh soldiers and ammunition. Belgium, after consulting the British government, decided that, if one of the
belligerents objected, the giving of permission would be a breach of neutrality, and therefore refused it.

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15.18.1.2 Personnel or Material of War Accompanying the Wounded or Sick. A

neutral State permitting the passage of sick and wounded into and through its territory must take
measures of safety and control to ensure that combatants or military supplies do not accompany
them. If combatants accompany the passage of the wounded and sick, they should be
interned. 360 Similarly, any military supplies must be seized and placed in safe custody until the
end of the conflict. 361
Medical personnel and materials necessary for the care of the wounded and sick of a
convoy of evacuation may be permitted to accompany the convoy. 362
15.18.1.3 Wounded and Sick POWs Brought Into Neutral Territory Under
Authorized Ground Transports. Wounded and sick POWs brought by one of the belligerents as
part of a convoy of evacuation that is granted passage through neutral territory, and belonging to
the hostile party, must be guarded by the neutral State so as to ensure they do not take part again
in the operations of the war. 363
Thus, wounded and sick and POWs brought into neutral territory by the Detaining Power
as part of a convoy of evacuation granted right of passage through neutral territory are not treated
like escaping POWs or POWs brought by belligerent forces seeking asylum in neutral territory
(i.e., transported to their own country or liberated). 364 Instead, they are treated like other
wounded, sick, and shipwrecked combatants who are received within neutral territory, and they
must be guarded by the neutral State. 365
15.18.1.4 Wounded and Sick Combatants Committed to the Care of the Neutral
State. Wounded and sick combatants brought under these conditions into neutral territory by one
of the belligerents, and who do not simply pass through neutral territory but are committed to the

Luxembourg took the opposite view and granted it. Under international law, Luxembourg was correct in its
reasoning but, in view of the cogent arguments put forward by France, Belgium was right in its decision.).
360

Refer to 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).

361

Refer to 15.16.5 (Military Equipment and Supplies of Belligerent Forces Taking Refuge).

362

1956 FM 27-10 (Change No. 1 1976) 545 (Medical personnel and materials necessary for the care of the sick
and wounded of a convoy of evacuation, permitted to pass through neutral territory under Article 14, H. V (par.
539), may be permitted to accompany the convoy.).
363

HAGUE V art. 14 (The wounded and sick brought under these conditions into neutral territory by one of the
belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking
part again in the operations of the war.).

364

1956 FM 27-10 (Change No. 1 1976) 543 (Sick and wounded prisoners of war brought into neutral territory by
the Detaining Power as part of a convoy of evacuation granted right of passage through neutral territory may not be
transported to their own country or liberated, as are prisoners of war escaping into, or brought by troops seeking
asylum in neutral territory, but must be detained by the neutral power, subject to the provisions contained in
paragraphs 188 through 196.).
365

Refer to 15.16.2 (Neutral Reception of the Wounded, Sick, and Shipwrecked).

992

care of the neutral State, must be guarded by the neutral State so as to ensure they do not take
part again in the operations of the war. 366
15.18.2 Medical Aircraft and Neutral Territory. Subject to conditions and restrictions
established by the neutral State, medical aircraft of belligerent States may fly over the territory of
neutral States, land on it in case of necessity, or use it as a port of call. 367 Belligerent States shall
give the neutral States previous notice of their passage over the neutral State and obey all
summons to alight, on land or water. 368
The neutral State may place conditions or restrictions on the passage or landing of
medical aircraft on its territory. 369 Such conditions or restrictions shall be applied equally to all
belligerent States. 370 Belligerent States medical aircraft would be immune from attack only
when flying on routes, at heights, and at times specifically agreed upon between the belligerent
States and the neutral State concerned. 371
As a general matter, the wounded and sick who are disembarked, with the consent of the
local authorities, on neutral territory by medical aircraft, shall be detained by the neutral State,
where so required by international law, in such a manner that they cannot again take part in
military operations. 372

366

HAGUE V art. 14 (The wounded and sick brought under these conditions into neutral territory by one of the
belligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking
part again in the operations of the war. The same duty shall devolve on the neutral State with regard to wounded or
sick of the other army who may be committed to its care.).

367

GWS art. 37 (Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may
fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.); GWS-SEA art. 40
(same).
368

GWS art. 37 (They shall give the neutral Powers previous notice of their passage over the said territory and
obey all summons to alight, on land or water.); GWS-SEA art. 40 (same).
369

GWS art. 37 (The neutral Powers may, however, place conditions or restrictions on the passage or landing of
medical aircraft on their territory.); GWS-SEA art. 40 (same).
370

GWS art. 37 (Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.);
GWS-SEA art. 40 (same).
371

GWS art. 37 (They will be immune from attack only when flying on routes, at heights and at times specifically
agreed upon between the Parties to the conflict and the neutral Power concerned.); GWS-SEA art. 40 (same).
372

Refer to 15.16.2.3 (Wounded and Sick Disembarked From Belligerent Medical Aircraft).

993