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Ch.5 The Exercise of Belligerent Rights Against Neutrals

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: 15 January 2021

Belligerence — Belligerents — Proportionality — UN Charter — Ius ad bellum — Neutrality and non-alignment

This chapter focuses on the rights of belligerents against neutrals. Now that the threat or use of force is prohibited in international law, legal principle would suggest that belligerents are limited in their ability to take belligerent measures against neutrals that were previously dependent on a state of war for their operation—such as the right of visit and search, the right to establish a blockade, and the right to set up exclusion zones. Because the relationship between belligerents and neutrals is a peaceful one, interference by belligerents with neutral shipping and aircraft will have to satisfy a double test in order to be lawful: such interference must meet the requirements of necessity and proportionality under the jus ad bellum, and also meet the requirements of the law of neutrality and naval warfare. Therefore, State practice suggests that after the first half of the twentieth century—which saw the expansion of belligerent rights against neutrals to an alarming degree—the situation has, in many respects, been reversed by the influence of the UN Charter and the peacetime freedoms of the sea on the law of naval warfare. Indeed, the scope of permissible belligerent action against neutrals has probably been narrowed considerably, demonstrating the overlap between the law of the UN Charter and the law of neutrality.

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