The Law of Neutrality and the Russian/Ukrainian Conflict: Looking at State Practice

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One of the distinctive features of the Russian/Ukrainian conflict is the massive provision of belligerent materials (and intelligence, here and here) to Ukraine (here): around 30 States have provided lethal war materials, including the EU through its European Peace Facility; other countries have only provided non-lethal materials. A few States, such as Switzerland, have conversely denied military support based on legal assessments.

Since the early phases of the conflict, such military support has prompted lively scholarly debate on its legal foundations, particularly regarding the law of neutrality (see below). However, such preliminary analysis did not have the chance to take into account the legal positions held by concerned States, and even in a recent analysis the point has been made that ‘(i)n the absence of explicit explanations from States…it has fallen to legal scholars and commentators to explain how such measures may conform with the law of neutrality’ (Clancy, 2).

This post, conversely, attempts to shed some light on the largely unexplored positions of the various States, as this practice could provide a legal perspective on the factual provision (or non-provision) of belligerent material. Even if such positions are far from conclusive (…and consequently raise the parallel issue of States’ silence), they provide elements of interest and may encourage readers to contribute with further examples, as language barriers and challenges in navigating domestic practice were inherent limits in this preliminary survey.   

At present, some mainlines of reasoning can be identified based on the positions held by the States, which partly overlap with the solutions proposed by scholars. On the one hand some positions could be linked to the law of neutrality, for instance i) the concept of ‘benevolent/qualified’ neutrality, ii) potential exemptions for non-lethal military material or, conversely, iii) refusals of military assistance. On the other hand, further theories centered outside the law of neutrality could be recorded using references to circumstances precluding wrongfulness, for instance i) collective self-defence or ii) countermeasures.

The law of neutrality in State practice

When it comes to the law of neutrality opposite views could be identified. A first option would be to resort to exemptions potentially permitted by this legal regime. In particular, based on the benevolent/qualified neutrality theory, ius ad bellum elements could be factored in as neutral States could discriminate between belligerents, even where the UNSC has failed to impose measures superseding the law of neutrality against the aggressor. This theory, while advocated in the past by a few States (US DoD Manual, 952-953), was rejected by a variety of scholars (e.g. Heintschel von Heinegg, 544, Bothe, para. 5; Antonopoulos, 146) due to the lack of supporting practice and potential flaws. Conversely, with regard to the Ukraine, several scholars have endorsed the ‘benevolent/qualified’ neutrality approach (Hathaway and Shapiro; Nasu; Schmitt; Heintschel von Heinegg; Talmon; contra Heller and Trabucco, 262-263) based on Russia’s flagrant violation of the UN Charter, as confirmed by UNGA Resolution ES-11/1, and the impossibility for the UNSC to exercise its functions.

Interestingly, some States’ positions appear to echo this solution. Although it is difficult to identify proper statements aimed at expressly engaging the law of neutrality and invoking the ‘benevolent/qualified’ neutrality exception, the provision of weapons has been explicitly linked, by several States, to the ongoing aggression and the individual right of self-defence exercised by Ukraine.

Such positions were expressed in UNSC debates: France maintained that it ‘is providing, and will continue to provide, the Ukrainian people with all the support they need to exercise their right to self-defence…That includes military support’ (S/PV.9256, 13 and S/PV.9127, 18); joint statements were expressed by the Baltic and Nordic States, according to whom ‘Under the Charter, Ukraine has an inherent right to self-defence. The Nordic and Baltic States are determined to enhance Ukraine’s military capabilities and to provide all necessary support’ (S/PV.9269, 29. See also here), as confirmed by Norway which claimed that ‘Other States are entitled to respond positively to Ukraine’s call for assistance in the exercise of its legitimate right to self-defence’ (S/PV.9127, 16-17); as accompanied by the USA which underlined how ‘the inherent right to individual and collective self-defence is reflected in Article 51 of the Charter…The security assistance, including weapons…is for Ukraine’s self-defence…Ukraine is using those weapons to repel the invading Russian forces’ (S/PV.9256, 12).

Interestingly, some UNSC members, even if not directly providing lethal war material, endorsed such actions: Ghana reaffirmed ‘Ukraine’s inherent right to self-defence under customary international law’ and maintained how ‘(t)here is no prohibition on such action, neither do the rules of international law or the Charter prohibit the supply of conventional weapons to a State under armed attack by another’ (S/PV.9216, 10); Ireland positively assessed the ‘military support provided by the European Union to help Ukraine exercise its inherent right of self-defence and defend its territorial integrity and sovereignty’ (S/PV.9127, 16). Indeed, the same EU Council Decision 2022/338 supplying lethal war material to Ukraine emphasizes how ‘(t)he objective of the Assistance Measure is to contribute to strengthening the capabilities and resilience of the Ukrainian Armed Forces to defend the territorial integrity and sovereignty of Ukraine and protect the civilian population against the ongoing military aggression’ (art. 1.4).

At domestic level, some positions held in national parliaments or in official statements have linked the provision of weapons to the ongoing aggression and the individual right to self-defence for Ukraine. These positions have been expressed by: Germany, where the State Secretary’s statement (at 39) in Parliament maintained that ‘(t)he Federal Government and its partners are supporting Ukraine by supplying weapons in exercising its right of individual self-defence against Russia’s illegal war of aggression’; Greece, according to which ‘(t)he provision of military equipment to Ukraine seeks to immediately reinforce, on the ground, the Ukrainian Armed Forces in defense of their sovereign rights, in accordance with the United Nations Charter, following the Russian invasion’ (Greek MoD, Reply 3503/18378); Italy, where the resolution adopted by the Parliament enjoined the Government ‘to transfer military equipment and assets…in order to enable Ukraine to exercise its right to legitimate defence and to protect its people’; Luxembourg, whose declaration by the MFA maintains how ‘(l)e Luxembourg continuera d’apporter une aide substantielle à l’Ukraine afin de lui permettre d’exercer son droit de légitime défense, consacré par l’article 51 de la Charte des Nations unies’; Romania, where the press release by the MoD maintained how ‘(t)he transfer of these materials towards the Ukrainian Government is part of the general efforts made by the NATO and EU state members to support Ukraine in defending its own territory, state independence and integrity against the Russian Federation’s aggression’, with similar positions echoed in a joint declaration between the UK and Ukraine. Similarly, US Public Law 117-118 provided the USA President with the authority ‘to enter into agreements with the Government of Ukraine to lend or lease defense articles to that Government to protect civilian populations in Ukraine from Russian military invasion’.

A separate group of States, conversely, limited themselves to providing non-lethal material, such as vests or helmets, as exemplified by the statement of the New Zealand Prime Minister who maintained how ‘(t)his is the first time New Zealand has provided direct funding to a third party organisation for non-lethal military assistance’. A similar approach was adopted by Austria (here), which also authorized the transport of weapons and military equipment through its territory, including airspace, and Ireland, Israel, Japan and South Korea, which furthermore authorised Poland to export howitzers to Ukraine which include parts manufactured in South Korea (here).

This latter approach could have a twofold interpretation. On the one hand it could consolidate solutions endorsed in the past under which it may be possible to provide non-lethal war material to belligerents (Upcher, 83-84). On the other hand, this practice might militate against the emergence of the ‘benevolent/qualified’ exception, as the law of neutrality might have been interpreted as limiting potential military support. However, for such States too, it would be hard to identify clear statements framing such positions based on legal assessments and proper engagement with the law of neutrality.

Conversely, the law of neutrality played a role for those States confirming the validity of a ‘strict’ approach, as exemplified by the extensive Swiss Federal Council’s report on neutrality. This document confirms how ‘(l)e droit de la neutralité interdit la transmission directe de matériel de guerre…En conséquence, la Suisse ne peut fournir du matériel de guerre provenant des stocks de son armée ni à la Russie ni à l’Ukraine’ (at 21). This solution had reverberating effects, such as the denial of authorization to re-export to Ukraine military material sold by Switzerland, except for complex military equipment which only includes minor Swiss-manufactured parts (report, 20). Similarly it was maintained that the law of neutrality denied the possibility of providing non-lethal war material (report, 22) and authorizing the transit of military planes transferring military material to Ukraine (report, 20).

It should nonetheless be recognised how the majority of States did not adopt any measures in favor of belligerent parties, including Ukraine. However, it is hard to attribute specific legal value to such conduct as there was a lack of engagement with the law of neutrality, as exemplified in debates at UNGA or UNSC where this body of law was not mentioned.

Obviously, Russia expressed criticisms. However, in this case too, it did not frame its condemnations under the lens of the law of neutrality, as this body of law was never expressly mentioned in its statements at the UN. Unfortunately, we do not know the full content of the confidential diplomatic note Russia sent to the USA on 14 April 2022, once the USA had increased the military quality of the material supplied. In this document, Russia is thought to have ‘accused the allies of violating “rigorous principles” governing the transfer of weapons to conflict zones’. However, it cannot be verified if Russia actually claimed breaches of the law of neutrality. It is similarly hard to speculate whether the choice of not engaging with States based on this body of law was linked to the potential irrelevance of this legal regime, constraints related to Russia’s self-qualification of its armed attack as a ‘special military operation’ – a label that makes it complex to invoke violations of a legal regime pertaining to international armed conflicts – or geopolitical factors, as Russia is ‘not in a position to enforce its belligerent rights against neutral States’ (Nasu).

Using secondary norms to address military support to Ukraine

Leaving aside the law of neutrality, scholars also used further arguments to justify such measures, in particular referring to circumstances precluding wrongfulness, under solutions that are not however significantly echoed in the States’ positions.

In particular, it has been claimed how the provision of weapons to Ukraine could be framed as collective self-defence ex art. 51 UN Charter (e.g. Ambos; Krajewski) based on an a maiore ad minus argument, maintaining how this provision, legitimizing the use of force against the State responsible for aggression, can implicitly entail the right to resort to less intrusive measures, such as the provision of weapons to the attacked party.

This solution is not without problems, also considering that the States involved did not formally notify the UNSC under art. 51.2 UN Charter. Although this requirement is not mandatory to exercise the prerogatives under art. 51, failure to do so would be inconsistent with reporting practice maintained by the same States in other scenarios (examples here). Furthermore, on a theoretical level, doubts could be expressed about the possibility to frame military supplies as collective self-defence measures (see e.g. Heintschel von Heinegg, 552-553; Upcher,  24).

In any case, it seems concerned States have not invoked this scenario. The only exception is Albania’s statement at the UNSC, where, in relation to arms transfers, the point was made that ‘there is a clear provision agreed by everyone on how to help victims, and Article 51 of the Charter provides the legal basis for individual States to offer whatever assistance to a country exercising its inherent right to self-defence’ (S/PV.9256, 11). Conversely, aside from not referring to this theory, other States expressly denied this scenario. In particular, in relation to the supply of weapons, the German State Secretary maintained how ‘(t)his lawful assistance does not pass the threshold of an exercise of the right of collective self-defence’ (here, 39).

Other theories have been advanced by scholars (e.g. Benvenisti, Cohen; Pedrozo), namely resorting to individual countermeasures against violation of the erga omnes obligation enshrined in the prohibition of aggression. Even if there are doubts about whether States other than the injured one can adopt countermeasures, the current scenario might be a fitting example for this solution in light of the ongoing aggression and potential fulfillment of other conditions provided for by the ILC for the adoption of countermeasures. Still, despite the potential theoretical merits, no clear statements could be identified in the States’ practice regarding this solution.

(Tentative) concluding remarks

Overall, the factual shift recorded in this conflict, namely open military support provided to the attacked party, has not been accompanied by clear and extensive legal reasoning. The self-restraint demonstrated by concerned States in properly engaging with the law of neutrality and legal arguments could have different reasoning.

On the one hand it could evidence the legal irrelevance of the law of neutrality, a pragmatic solution which is however at odds with continuous references to this body of law (for recent overviews: Antonopoulos and Upcher). On the other hand, the uncertain nature of the most promising solutions to legitimize military assistance (‘benevolent/qualified’ neutrality and countermeasures) might have prevented the States involved from openly pushing for their vindication and preferring silence. Legal arguments were thus put to one side through an approach which, however, reduces the contribution of current conduct to shaping international law.

However, the current Ukrainian-Russian armed conflict might be a game changer for the law of neutrality and could confirm the trend favoring the protection of ‘the common interests of the international community and…the role which third states may play in that regard’, which could however imply how the law of neutrality might ‘vanish entirely through obsolescence’ (Palchetti, 1229-1230).

Such claims must however be balanced by the refusal to depart from a ‘strict’ approach by States such as Switzerland, by the positions held to stop short of suppling lethal war material, and by the non-provision of any military assistance by most States. Such practice could point to the permanent relevance of limits imposed by the law of neutrality, even if similar self-restraint is seen in the setting out of their legal reasoning, creating doubts about the legal value of their conducts.

To summarise, this conflict is a further scenario in the continual shift of the pendulum between public and private interests in international legal order. Legitimate expectations about ius ad bellum concerns and community interests might conflate with beneficial effects of the ‘strict’ neutrality regime, which was set up to limit the spread of armed conflicts and keep economic business as usual. Only future conflicts might finally solve the issue of whether current conduct could consolidate relevant legal developments in this area.

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