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Ch.1 Neutrality, Non-Belligerency, and the Prohibition of the Use of Force

From: Neutrality in Contemporary International Law

James Upcher

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 16 January 2021

Subject(s):
Belligerence — Belligerents — Conduct of hostilities — UN Charter — Neutrality and non-alignment

This chapter discusses how the prohibition of the threat or use of force in international law challenges neutrality. The prohibition on the threat or use of force in international law throws into doubt the entire edifice on which the law of neutrality is built: the distinction between a state of belligerency and a state of neutrality, and the legality (or extra-legality) of war. In the past, at least in the nineteenth century, the formalism of international law distinguished sharply between different statuses and States were free to move between these categories. If the unrestricted right to go to war was the foundation of neutrality, and if that right has now been abolished, it may signal vast changes in the creation of neutral status in contemporary international law. One prominent view is that those changes have been very profound, and have altered the way in which neutrality is invoked. That view suggests that neutrality has been transformed into an optional legal status that States are free to take up or decline as they see fit, subject to those rules being displaced by the UN Charter. Those States that choose not to take up the status of neutrality upon an armed conflict breaking out occupy a position of non-belligerency; and they are free, in that status, to deviate from the substantive rules of neutrality.

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