IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

Non-war -Armed Conflict and Law of Nautrality

Dr. Surendra Sharma

Astt. Prof. M.D.Law College, Jaipur

As remarked by Lord Mac. Naughten, "The law recegnises a State of peace

and State of war but it knows nothing of an intermediate State which is neither one
thing nor the other-neither peace nor war." As pointed by another author1 "the legal
condition of war has not arisen since 1945, and upon an optimistic view of
international relations and the role of the United Nations is unlikely to occur in the
near future. But the text books of international law distinguish only conditions of
war and peace, not the conditions of limited hostilities which have occurred, and
unhappily will continue to occur. The question that arises is how much of the
traditional law of war is applicable to this twilight situation which is neither peace
nor war and is unrecognised by many jurists". He further adds, "Finally, a
definition of limited war will prove to be, helpful in classifying the concept of law
to be utilized. It is proposed that the expression 'limited war' covers the situation of
hostilities not amounting to declared war, which, are limited in respect of (a) the
area of operations; (b) the weapons employed; and (c) the targets engaged. We
have sufficient experience of limited war in this sense for international lawyers to
be able to propose new rules for what is new phenomenon. " As pointed out by
Starke, significant changes have come in the modern wars. In the modern period,
many armed conflicts have taken place in which neither the war was declared, not
the rules of war were followed and nor there were the effects of war in accordance
with the laws of war. In this connection, he cites the examples of the Korean
conflict from 1950 to 1953, indo-China War; Cango conflict of 1960 to 1963 and
Indo-Pak, conflict of 1965. Since the declaration of war is not made, neither are
there full effects of war in accordance with laws of war nor the duties and rights of
the neutral States are properly defined and determined. In view this consideration,
Starke has called such wars as non-war armed conflicts. In his view following are
some of the reasons for the development of this category of war.
(1) The States concerned do not want that their conflicts should be regarded as
the violation of obligations arising out of international treaties. For example,
they do not want that the conflict should be regarded as the violation of the
Paris Pact of 1928 through which the States had renounced war as an
instrument of national policy.
(2) The belligerent States also do not want that the States not taking part in the
International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 189
www.irjmsh.com
IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

wars may declare their neutrality so as to evade the rules of neutrality.

(3) It is also their desire to localize the conflict and not to allow it to take the
form of general war.2
Further, practice in the non-war conflicts has revealed the tendency of States
to apply most of the rules governing a war stricts sensu to non-war hostilities. For
example, the Geneva Red Cross Conventions were expressly applicable to such
non war armed conflicts. But every such armed conflict must vary in its special
circumstances and the rules to be applied must also depend upon the
circumstances. In case the U.N. Security Council is taking enforcement action
"actual decisions or recommendations adopted by the Security council under
Articles 39 et. seq. of the United Nations Charter, for the guideance of States
engaged in the hostilities, may fill the place of rules of international law."
Conception of Neutrality
Such States as do not take part in a war between other States are neutrals.
The term 'neutrality' is derived from the Latin neuter. Neutrality may be defined as
the attitude of impartiality adopted by third States towards belligerents and
recognised by belligerents, such attitude creating rights and duties between the
impartial States and and the belligerents. Whether or not a third State will adopt an
attitude of impartiality at the outbreak of war is not a matter for International Law
but for international politics. Therefore, unless a previous treaty stipulates it
expressly, no duty exists for a State, according to International Law, to remain
neutral when war breaks out. Every sovereign State, as an independent member of
the Family of Nations, is master of its own resolutions, and the question of
remaining neutral or not at the outbreak of war is, in the absence of a treaty
stipulating otherwise, one of policy and not of law.3 However, all States which do
not expressly declare the contrary by word or action are supposed to be neutral,
and the rights and duties arising from neutrality come into existence, and remain in
existence, through the mere fact of a State taking up an attitude of impartiality, and
not being drawn into the war by the belligerents. A special assertion of intention to
remain neutral is not therefore, legally necessary on the part of neutral States,
although they often expressly and formally proclaim4 their neutrality.
Neutrality an attitude of Impartiality:-
Since neutrality is an attitude of impartiality, it excludes such assistance and
succour 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

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 190
www.irjmsh.com
IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

use of their neutral territories, and of their resources, for military and naval
purposes during the war. Thie applies not only to actual fighting on neutral
territories, but also to the transport of troops, war material, and provisions for the
troops, the fitting out of men of war and privateers, the establishment of Prize
Courts, and the like. Further, neutrals must, by all means falling short of becoming
involved in hostilities or of abandoning their attitude of impartiality, prevent each
belligerent from interfering with their legitimate intercourse with the other
belligerent through commerce and the like, because a belligerent cannot be
expected passively to suffer vital damage resulting to himself from the violation by
his enemy of a rule, which, while it operates directly in favour of neutrals,
indirectly operates in his favour as well.
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 thereby violating neutrality. Moreover, acts of humanity
on the part of neutrals and their subjects, such as the sending to military hospitals
of doctors, medicine, provisions, dressing 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.
Again, the necessary attitude of impartiality due to the fact that neutrals have
nothing to do with quarrels between the belligerents, does not compel them to
remain inactive when a belligerent in carrying on hostilities violates the rules of
International Law. On the contrary, as has been pointed out above, neutrals have
then a right to intervene, although - as the law stands at present- they have no duty
to do so.
COMMENCEMENT AND END OF NEUTRALITY
Neutrality commences with Knowledge of the War. Since neutrality is an
attitude of impartiality deliberately taken up by a State and acquiesced in by the
belligerents, it cannot begin before the outbreak of war becomes known. It is only
then that third States can make up their minds whether or not they intend to remain
neutral. As soon as they determine to adopt an attitude of impartiality, and the
belligerents acquiesce in their choice, the duties deriving from neutrality are
incumbent upon them. It has long been the usual practice of belligerents to notify
the outbreak of war to third States so as to enable them to make their decision, but
formerly this was not in strict law necessary. Knowledge of the outbreak of war,
however obtained, gave a third State an opportunity of coming to a decision, and, if

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 191
www.irjmsh.com
IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

it remained neutral, its neutrality dated from the time when it first know of the
outbreak of war. But it is apparent that an immediate notification of war by
belligerents is of great importance, as excluding all doubt and controversy
regarding knowledge of the outbreak of war. For it must always be remembered
that a neutral State may in no way be made responsible for acts of its own or of its
subjects which have been performed before it knew of the war, although the
outbreak of war might have been expected. For this reason Article 2 of Hague
Convention III. enacted that belligerents must without delay send a notification of
the outbreak of war to neutral Powers, and that the condition of war should not
take effect in regard to neutral Powers until after receipt of a notification, unless it
was established beyond doubt that they were in fact aware of its outbreak.
Commencement of Neutrality in Civil War. As civil war becomes real war
through recognition of the insurgents as a belligerent Power, neutrality during a
civil war begins for every foreign State from the moment recognition is granted.
Establishment of Neutrality by Declarations. Neutrality being an attitude of
States creating rights and duties, active measures on the part of a neutral State are
required for the purpose of preventing its officials and subjects from committing
acts incompatible with its duty of impartiality. The pronouncement by which a
neutral State orders its organs and subjects to comply with the attitude of
impartiality adopted by itself is called a declaration of neutrality' in the special
sense of the term. Such a declaration must not, however, be confounded with
manifestoes by the belligerents proclaiming to neutrals the rights and duties
devolving upon them through neutrality, or with the assertions made by neutrals to
belligerents or urbi et orbi that they will remain neutral, although such
pronouncements and assertions are often also called declarations of neutrality.
Municipal Neutrality Laws. International Law leaves it to the discretion of
each State to take the measures necessary to ensure neutrality. Since in
constitutional States the powers of Governments are frequently so limited by
Municipal Law that they may not take adequate measures without the consent of
their parliaments, and since, so far as International Law is concerned, it is no
excuse for a Government to plead that its Municipal Law prevents it from taking
adequate measures, several States have once for all enacted so-called Neutrality
Laws, which prescribe the attitude to be taken up by their officials and subjects in
case they remain neutral in a war. These Neutrality Laws are latent in time of
peace, but their provisions become operative ipso facto by the respective States
making a declaration of neutrality to their officials and subjects.5

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 192
www.irjmsh.com
IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

British Foreign Enlistment Act. The United States of America enacted a

Neutrality Law on April 20, 1818, Great Britain followed her example in 1891 by
passing a Foreign Enlistment Act, which was and in force till 1870. As this Act did
not give adequate powers to the Government. Parliament passed on August 9,
1870, a new Foreign Enlistment Act,6 which is still in force. This Act, in the event
of British neutrality, prohibits; (1) the enlistment by a British subject in the
military or naval service of either belligerent, and similar acts (4-7), (2) the
building, equipping,7 and despatching of vessels for employment in the military or
naval service of vessels for employment in the military or naval service of either
belligerent, (3) the increase by any person on British territory of the armament of a
man-of-war of either belligerent being at the time in a British port; (4) the
preparing or fitting out of a naval or military expedition against a friendly State.8
The British Foreign Enlistment Act goes beyond the requirements of
International Law, in so far as it prohibits and penalises a number of acts which,
according to the present rules of International Law, a neutral State is not required
to prohibit and penalise. Thus, for instance, a neutral State need not prohibit its
private subjects from enlisting in the service of a belligerent, from supplying coa,
provisions, arems, and ammunition direct to a belligerent fleet, provided that the
fleet is not within, or just outside, the territorial waters of that neutral, or from
selling ships to a belligerent, although it is known that they will be converted into
cruisers, or used as transport shipe. For Article 7 of Convention V. and Article 7 of
Convention XIII categorically enact that a neutral Power is not bound to prevent
the export or transit, on behalf of either belligerent, of arms, munitions of war, or ,
in general, of anything which could be of use to an army or fleet.
Conducting general of Neutrals and Belligerents. Neutrality can be carried
out only if neutrals as well as belligerents follow a certain line of conduct in their
relations with one another. It is for this reason that from neutrality derive rights and
duties, for belligerents as well as for neutrals, and that, consequently, neutrality can
be violated by both belligerents and neutrals. These rights and duties are
correlative- the duties of neutrals to the rights of belligerents, and the duties of
belligerents to the rights of neutrals.
1. D.P.O. Council, "International Law and Contemporary Naval Operations." British Year
Book of International Law, Vol. XLIV (1970), P.19 at PP. 2-24.
2. J.G. Strake, Introduction to International Law, Note 2 at P.529
3. Garner, Recent Developments in International Law (1925) PP. 813-818.
4. Official Journal of the League of Nations 1939, PP.389-394.
5. Deak & Jessup, A collection of Neutrality Laws, Regulations and Treaties of Various
Countries, 2 Vols. (1939)

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 193
www.irjmsh.com
IRJMSH Vol 7 Issue 8 [Year 2016] ISSN 2277 – 9809 (0nline) 2348–9359 (Print)

6. Sibley in the law Magazine and Review, 29 (1904), PP.454-467.

7. The Harrier, 8(1921) Lloyd's Reports of Prize cases,488.
8. Reg. V. Jamseon and others (1896) 2Q.B. 425

International Research Journal of Management Sociology & Humanity ( IRJMSH ) Page 194
www.irjmsh.com