The Effects of Self-Defence on Third States and the Role of the Law of Neutrality

The article addresses the role of the law of neutrality in regulating the legal effects of measures of self-defence on third States. While it is established that self-defence cannot justify the violation of obligations owed to States other than the aggressor State, it remains unclear how international law deals with the negative effects caused to third States by defensive measures. The article argues that the proposed role of the law of neutrality as the legal framework for regulating the negative effects caused to third States, as advanced by the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, may be challenged on several grounds. The article contends that the proposed solution is based on a misleading equivalence between the operation of primary and secondary rules, treating the effects of the application of the law of neutrality as comparable to those of the operation of self-defence as a circumstance precluding wrongfulness. The article further criticizes the proposed solution for not addressing issues related to the applicability of the law of neutrality or its recognition in State practice within the context of self-defence situations. Additionally, the article explores alternative approaches to the regulation by international law of the legal effects of self-defence measures on third States, suggesting that other circumstances precluding wrongfulness, primary rules, and extra-legal considerations should be considered for determining how such effects are addressed.