The document discusses the need to update the concept of neutrality in international law in light of Russia's invasion of Ukraine. It notes that autocrats like Putin have weaponized concepts like neutrality to further their own ends. Specifically, Putin could claim that countries providing military aid to Ukraine have violated neutrality and thus justify expanding the war. However, scholars say neutrality law does not apply here and aiding Ukraine's self-defense is justified. The document argues the international community must clearly define norms for neutral states during war to prevent future exploitation and circumvention of laws. It proposes a conference to formally update the legal framework governing neutrality.

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https://www.usip.org /publications/2022/04/look-neutrality-now-and-after-ukraine-war
A Look at Neutrality Now — and After the
Ukraine War
The international community needs to update the ‘law of neutrality’ to prevent
autocrats like Putin from weaponizing it.
Thursday, April 28, 2022 / By: Andrew Cheatham
Editor’s Note: This article is part 1 in a 2-part series looking at the various
forms of neutrality in international law and how they should be updated in the
aftermath of the Ukraine crisis. Part 2 explores the future of "neutralization."
Russia’s invasion of Ukraine has prompted several conversations about the
concept of “neutrality” in international law and related matters. Although this
week’s visits between United Nations Secretary-General Antonió Guterres and
Russian President Vladimir Putin and Guterres and Ukrainian President
Volodymyr Zelenskyy have sparked some hope of reinvigorating peace talks, a
settlement seems like a distant prospect. Nonetheless, it is likely that any deal
will include provisions for Ukraine’s long-term neutrality in exchange for
external states’ security guarantees. But autocrats like Putin often weaponize
international legal concepts like neutrality for their own ends. As such, it is vital
to reconsider and update global commitments to stabilizing legal frameworks to
prevent would-be aggressors from exploiting international law.

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A delivery of equipment and defensive munitions provided by the U.S. arriving at Kyiv
Boryspil Airport from Dover Air Force Base, Boryspil, Ukraine, Jan. 25, 2022. (Brendan
Hoffman/The New York Times)
The seismic impact of Russia’s invasion has prompted a reassessment of
geopolitical alliances and many countries’ security posture. The U.N. General
Assembly’s vote to suspend Russia from the Human Rights Council provides
some insight to the broader global picture, while Sweden and Finland’s NATO
applications follow the general momentum in Europe. China’s position on the
war is also a looming and sometimes ambiguous factor to calculate.
Policy positions on ideological, political, security and economic alliances are
connected to, but distinct from, questions around the “law of neutrality.” When
evaluating Russia’s ominous threats of deploying nuclear weapons it is
important to understand the normative legal framing of neutrality that might
apply. This could provide some understanding of how Putin might view, for
example, the United States’ provision of $3.4 billion in security assistance to
Ukraine since Russia’s February 24 invasion.
Analysts have already been clear: There is no legal justification to characterize
the United States, or any other country providing military assistance, as valid
belligerents using the law of neutrality. The whole story does not end here,

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however. Properly analyzing the issue at this consequential moment requires
precision and a discourse that carefully incorporates interdisciplinary
considerations. To start, it is important to quickly distinguish the law of
neutrality from other forms of neutrality discussed in legal and diplomatic
circles.
Examining the Law of Neutrality
In international law, neutrality can refer to the rights and obligations of neutral
states and their citizens following the outbreak of international armed conflict,
as well as the terms and conditions for longer-term “neutralization” as
negotiated in bilateral or multilateral treaties. States can also project their
versions of neutrality unilaterally, as a matter of domestic security and political
and economic policies and practices. This was the case with the United States
for most of its history before World War II, following George Washington’s
“Neutrality Proclamation” in 1793 amid the French Revolutionary Wars. These
types of alliances and declarations also took shape most notably during the
Cold War following decolonization the and the establishment of states “non-
aligned” with either the Soviet Union or the United States. The war in Ukraine
has major implications for the discourse around all three of types of neutrality:
1) the law of neutrality; 2) terms for the neutralized; and 3) the non-aligned.
This analysis focuses on the first category.
In war, the law of neutrality creates a binary determination. Parties, by action,
declaration or default, can be classified as either belligerent or neutral. Western
laws and customary practices for neutral states developed in large part in the
Prize Courts of 18th and 19th centuries to decide claims made by state-owned
and commercial interests over property seized on the high seas. As a practical
matter, the law of neutrality helped protect international trade during war.
Beyond that, it served to localize war and limit its scale both at land and at sea.
The codification of these norms was embodied in treaties of the Second Hague
Peace Conference (1907), in large part in the “Convention (V) Respecting the
Rights and Duties of Neutral Powers in Case of War on Land” and the
“Convention (XIII) Concerning the Rights and Duties of Neutral Powers in
Naval War.”

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A paradigm shift occurred after World War II and the establishment of the
United Nations. With its roots in the Kellogg-Briand Treaty of 1928, Article 2 of
the U.N. Charter provides a universally accepted prohibition on wars of
aggression and demands that member states settle conflicts peacefully. Article
51 protects the right of nations to act in individual or collective self-defense.
Within this new normative framing, international armed conflict only occurs
between aggressors and defenders. All other force is only legitimate when
conducted with Security Council authorization under Chapter 7 of the Charter
or through regional organizations, as outlined in Chapter 8 and in accordance
with the same principles.
As a result, over the past 75 years the law of neutrality lost prominence and
some claim it to be obsolete. That said, the binary discourse of belligerent and
neutral states is still wrapped in the fabric of the laws of war and neutrality
principles are embedded in contemporary military doctrine.
Neutrality in the Ukraine Context
The question raised often within the conflict in Ukraine is whether assistance in
the form of military aid, supplies, logistics or intelligence by NATO, its member
states and their allies will give Putin a pretext to broaden the fight. At first
glance, violations of the law of neutrality by countries like Poland, Romania or
even Germany or the United States, could provide Putin justification for further
military action beyond Ukraine’s borders, leading to catastrophic spillover into
Europe. However, scholars have dismissed any such legal argument,
explaining that jus ad bellum (i.e., the modern legal criteria for entering war) not
neutrality law, dictates the legitimate use of force. Countries contributing to
Ukraine’s self-defense are not only justified but are also arguably obligated to
act. This week, the Congressional Research Service explained that the United
States “ha[s] adopted the doctrine of qualified neutrality,” which permits states
to take non-neutral acts in support of the victim of unlawful aggression.
While not wrapped in legalese, Putin has been clear in warning against outside
interventions, this week threatening a “lightning fast” response. In the context
of such threats, it is unclear what in his mind constitutes a violation and what
would be the justified response. Whether constrained by liberal norms or
realpolitik, Putin has yet to attack countries he sees as assisting Ukraine. While

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many have guessed, his real motivations remain a mystery. Lessons from
history are crucial to contend with the emerging threats of an upended rules-
based order.
Neutrality’s Origins
Looking back, it was Russia, with commerce as its chief concern, that
established the first League of Armed Neutrality (1780-1783), a short-lived
alliance of nations responding to British violations of the established laws and
customs by seizing neutral ships during the American revolution. The group
sought to enforce customary principles of international law and was powerful
enough to force some reform of British law. Similarly, the United States, since
its founding, has advocated for the protection of the private rights of citizens
from neutral states during wartime to ensure free trade with belligerent and
neutral states alike.
Later opposing views on the law of neutrality came to a head during World War
I, as Germany took a strong position that the neutral private trade by
Americans of weaponry and supplies must be balanced between the Central
and Allied Powers. The United States opposed this interpretation and allowed
for the continued provisions to Great Britain and its allies. As Francis Boyle, a
professor of international law, explains, “The United States government
eventually responded by entering the war to secure those rights of its nationals
and thus uphold the international laws of neutrality and armed conflict.”
Unfortunately, sophisticated legal frameworks and institutions were not enough
to prevent the outbreak of World War I.
Prior to this, notable mid-19th century military innovations — such as long-
range weapons and the mini-bullet, the Gatling Gun, iron-clad warships, and
naval mines and torpedoes — unleashed untold death and destruction around
the world on battlefields and at sea. In response, a flurry of international
humanitarian action resulted in the formation of the International Red Cross
(ICRC) in 1863. Thereafter, the ICRC was central to treaties like the “Geneva
Convention for the Amelioration of the Condition of the Wounded and the Sick”
(1864) and the Hague Conventions (1899 and 1907), which sought to create
rules for armed conflict to reduce its violent devastating effects. Following the
Hague Convention of 1907, progressive and optimistic support for an
international legal and normative order that maintained peace and stability was
on the rise.

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In recent years commentators have compared the current era to this perilous
pre-war period of the 1910s, when rising powers of Germany, Japan and the
United States threatened the hegemonic British Empire. Such comparisons
prompt the West to question its calculations about the norms framing the
behavior of powerful authoritarian states like Russia. The war in Ukraine has
served to upend all prior assumptions about the global order.
Preventing the Weaponization of International Law: What’s
Next?
Over the past decade, we have seen how Russia weaponizes international
laws and norms. The annexation of Crimea in 2014 was justified based on the
right of self-determination, enshrined in the U.N. Charter and the International
Covenant on Civil and Political Rights. The claims of genocide used as a
pretext for February’s invasion revealed the depths of Putin’s cynicism. Basing
such claims on doctrinal principles of the “Responsibility to Protect” are
particularly rich, given the primacy Russia placed on sovereignty in its support
for the atrocities committed in Syria.
Scholarly conclusions and unilateral interpretations are not sufficient to reach a
stabilizing consensus among concerned states. Multilateral support for Ukraine
must account for the complexity of Putin’s security, political, economic and
ideological considerations. We are at an inflection point for the global order. To
find solutions to these intractable issues in the U.N. Security Council and
renewed calls for militarized defense postures around the world, a deeper
debate on agreed legal norms is needed.
The Ukraine war has catalyzed a renewed conversation about the concept of
neutrality in international law and the need to update it for a modern context.
Still there are other, less salient but important reasons to update what neutrality
means. Just as military innovations in the mid-19th century galvanized the
world to reconsider humanitarian action, this reassessment of neutrality should
reckon with modern warfare over a century after the Hague Conventions.
Ultimately, the international community needs to formulate legal norms that
prevent autocrats like Putin from exploiting them to suit their own ambitions
and circumvent the international laws of war. It should be unambiguous that
those providing aid to Ukraine are not belligerents and any new form of

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neutrality must take this into account, lest the next aggressor attempts to
exploit this concept. The norms for neutral states in times of war must be
defined and explicit.
To get there, a convening of diverse views is vital — from the West to the
global South and beyond. The Ukraine war has also demonstrated the
structural limitations of the United Nations — particularly the Security Council
— in this debate and made clear the need for a new Hague-style conference to
update and strictly delimit the normative legal framework for neutrality. While
the U.N. has its own tools for developing international law, its structural
limitations require a conference outside of the auspices of the global body. In
the end, however, the objective would be for an updated legal framing on
neutrality to be adopted and protected through the United Nations.
Andrew Cheatham