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Chicago Journal of International Law

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73

Abstract

Russia’s 2022 invasion of Ukraine produced a flood of scholarship asking how third states could legally justify providing weapons, funds, and intelligence to Ukraine. That assistance appeared to violate obligations under the venerable international law of neutrality. Many scholars argued that these neutrality “violations” could be justified under the law of state responsibility as either acts of collective self-defense or as countermeasures. Some also invoked the idea of “qualified neutrality,” a controversial principle that exempts states supporting victims of unlawful aggression from otherwise applicable neutrality limitations. This was a critical debate. The law of neutrality has been dormant for decades, especially in the immediate post-Cold War era, when the U.N. Security Council dominated the landscape of international responses to armed conflict. This scholarship sought to reconcile neutrality principles with contemporary law on state responsibility and the use of force and provide clarity in an era when collective measures by the Security Council are all but impossible to achieve.

his article responds to these well-intentioned scholarly accounts and argues that the justifications given for assisting Ukraine are misguided and, ultimately, unnecessary. Neutrality law has never involved binding obligations on third states, even in its nineteenth-century heyday. Neutrality was instead a status; a set of rights and obligations that states could choose to accept if they stayed within its limits. States could also choose to discard those limits and risk becoming parties to the conflict. Understanding neutrality as a status rather than an obligation means there is no need to justify “unlawful” transgressions of neutrality limits under the law of state responsibility. But even if third party assistance to a victim state like Ukraine were unlawful, the justifications of self-defense and countermeasures fail on their own terms. And while invoking “qualified neutrality” may appear more promising, that principle simply begs the question of how law on the use of force would conceive of third party assistance, the grounds of debate that would exist had neutrality law never entered the picture. Qualified neutrality, in other words, does not resolve the lawfulness of third party assistance but instead assumes the issue has been resolved under an entirely different body of international law. The entire effort to avoid neutrality barriers to assisting Ukraine and other victims of aggression turns out to have been a tempest in a teapot.

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