NEUTRAL RIGHTS, both the capability of a state to remain neutral toward other states at war with one another and the freedom of a neutral state from hindrance by the belligerents, including undisturbed commerce with non-belligerents, and even including commerce with belligerents, if that commerce does not aid in war. Neutrals do not, however, have rights to trade in munitions with belligerents, to allow their territory to be used by a belligerent, or to allow recruitment or other support from their nationals. With occasional reservations and violations, the United States has led the international community of states in the recognition and protection of these rights, practically since its founding, although the significance of these rights may have diminished as a result of changes in the legal nature of state responsibility and the legitimation of war.
The idea that a state could remain outside of war between other states has classical origins, but was first comprehensively stated by Hugo Grotius in the seventeenth century. It did not, however, initially find acceptance among the state powers of Europe.
In 1793 the United States, under the presidency of George Washington, asserted a right to neutrality in the wars between Great Britain and France—a right, among other claims, for which it fought an undeclared war with France in the 1790s and a declared war with Great Britain between 1812 and 1815. Neither conflict, however, led to a resolution of the American claims or to international recognition of a national right to neutrality.
In 1856, with the Declaration of Paris, the United States sought but failed to achieve international recognition of the rights of neutrals to protection from belligerents' seizure of non-contraband property. Contrary to this attempt, and despite a series of proclamations of neutrality in domestic law, the United States sought a narrowed understanding of neutrality during the Civil War, in order to enforce its blockade against Confederate ports. Even so, assertions of neutrality under American law survived the Civil War and were the basis of much of nineteenth-century U.S. foreign policy. Great Britain acknowledged the duty of a neutral state to refrain from permitting its territory to serve as a base for belligerent operations in the Alabama Claims Arbitration of 1871. In the case of The Paquete Habana in 1900, the U.S. Supreme Court declared the neutrality of fishing vessels to be a custom of international law binding upon states, including the United States, even in the absence of treaties.
In 1907 the Second Hague Peace Conference set forth standards of neutrality and the treatment of neutrals, based largely on rules drafted by law professor Francis Lieber and adopted by the U.S. Army as General Order 100 (1863) to guide the behavior of Union troops during the American Civil War. These rules were often violated, sometimes by the United States, but still served as the basis for American neutrality in the early years of World Wars I and II, as well as the neutrality of Switzerland, Spain, and other states during those conflicts.
With the adoption of the United Nations (UN) Charter in 1945, principles of a just war established by Grotius have been enacted into international law. Under these principles, only states that act in self-defense are legally justified in war; further, expanded definitions of individual and state responsibility for acts of aggression against a state have diminished the scope of possible neutrality. As a result, the nineteenth-century concept of neutral rights has been limited to a state's right, as provided by Article 51 of the UN Charter, to engage in either collective security enforcement actions or in collective defense.
Jessup, Philip, and Francis Deák, eds. Treaty Provisions: Defining Neutral Rights and Duties, 1778–1936. Washington, D.C.: U.S. Government Printing Office, 1937.
Tucker, Robert W. "The Law of War and Neutrality at Sea." Naval War College Review 50 (May 1955): 25–49.