Neutrality in the Sky: Assessing the Dutch Position in the US-Iran Conflict

[Gaia Zoboli is a PhD candidate and Lecturer in Public International Law at Maastricht University.

Ruben Peetam is a PhD candidate in Dutch Constitutional and Administrative Law at Maastricht University and a member of the Maastricht Research Centre for Society and Law.]

Introduction

‘How many military flights connected to the illegal war in Iran make use of the Dutch airspace?’.

This question was recently put to the Dutch government by Volt MP Laurens Dassen following the decision of some European states to close their airspace to US flights connected with the conflict (see here and here). In response, the Dutch government explained that it ‘does not intend to close Dutch airspace or military bases’ to the US and emphasised that ‘[t]he Netherlands is not involved with the Iran conflict’. For operational reasons, the government did not answer the question whether Dutch airspace was actually used by aircraft heading to Iran.

Nonetheless, the claim by the Dutch government of non-involvement in the conflict raises a question that has received surprisingly little attention in the current debate: what legal obligations follow from remaining outside an international armed conflict? This post argues that, even if permitting US military aircraft to use Dutch airspace does not render the Netherlands a party to the conflict, international law still regulates its conduct. The government’s claim of non-involvement triggers the application of the law of neutrality, which requires neutral states to prevent their territory from being used by the parties to the conflict in support of military operations. The Dutch case appears particularly significant as domestic law already provides the government with the possibility to adopt such restrictions, especially through the NATO Entry and Transit Regulation.

The International Legal Framework

Traditionally, international law distinguishes between states parties to an international armed conflict and third states. The conduct of the former is governed by international humanitarian law, while their legal relationship with third states is regulated by the law of neutrality. The classification of a state as either a party to the conflict or as a third state determines the legal framework applicable in its relationship with the states participating in hostilities.

Determining party status to an international armed conflict is a factual assessment grounded in international humanitarian law. Alexander Wentker identified two cumulative criteria that must be satisfied to acquire party status in an ongoing international armed conflict:

• (i) the performance of an act connected to the hostilities that directly harms the adversary, and

• (ii) a degree of coordination with fellow co-parties so that each co-party retains control over the decision-making process in the conduct of hostilities.

The crucial element of the first requirement is the presence of a causal nexus between the state’s conduct and the harm to a belligerent. Allowing US military aircraft through Dutch airspace would not in and of itself affect Iran’s military operations. As such, the granting of overflight rights alone cannot satisfy the first requirement of the test. The second requirement would equally fail. Coordination presupposes a certain degree of cooperation in the strategic, tactical and operational decision-making process underlying the conduct of hostilities. The mere granting of overflight rights to the US falls short of this threshold, as it does not entail participation in other aspects of the military decision-making process. Accordingly, the Netherlands does not appear to satisfy the criteria for the acquisition of party status in the conflict between the US and Iran.

By not satisfying the criteria to be considered a party to conflict, the Netherlands qualifies as a third state in the ongoing conflict between the US and Iran and as such, remains bound by the law of neutrality in its relationship with the belligerents. The law of neutrality has been criticised as an anachronistic legal framework. However, references made to neutrality since the outbreak of hostilities between the US and Iran suggest otherwise. Even though the constraints set by the UN Charter on the use of force have casted doubt on the exact content and scope of the law of neutrality today, three duties can still be recognised as underpinning this legal framework: impartiality, abstention and prevention.

These duties respectively require third states to refrain from favouring either party to the conflict, to avoid any engagement in hostilities, and to preclude the use of their national territory to the parties to the conflict for military purposes. It is questionable whether continuing to grant access to the national airspace to a party to an international armed conflict can be reconciled with these duties. In particular, the duty of prevention appears difficult to reconcile with the unrestricted use of national airspace by military aircraft supporting belligerent operations. This issue has previously surfaced during the invasion of Iraq in 2003, when several European countries resorted to the controversial concept of “qualified neutrality” to provide support to the US-led coalition, by allowing the coalition to make use of their airspace and military bases (see here, here and here).

In essence, qualified neutrality allows third states to deviate from their neutrality duties to provide military aid and assistance to the victims of an act of aggression, albeit without losing their neutral status. Whether qualified neutrality has crystallised into a rule of customary international law remains widely debated in academic discourse, with scholars positioning themselves on opposite sides of the spectrum (see for example James Upcher and Heintschel von Heinegg). Irrespective of its customary status, qualified neutrality cannot provide a justification to the Netherlands to deviate from its neutrality duties in the Iranian conflict: the US is not the victim of an act of aggression. Therefore, the Netherlands remains bound by the neutrality duties, and any decisions concerning the international armed conflict between the US and Iran should be taken in accordance with the obligations arising under the law of neutrality.

Complying with the Law of Neutrality by Domestic Means

Although neutrality may appear a passive legal framework from an international perspective, compliance with the obligations stemming from this legal framework ultimately depends on domestic legal mechanisms. During international armed conflict, rules governing access to the national territory – including the airspace – are fundamental to ensure compliance with the neutrality duties.

Under Dutch law, any foreign military aircraft needs prior permission from the Minister of Defence to enter the Dutch airspace. This is automatically done for NATO member states on the basis of a ministerial decree, the NATO Entry and Transit Regulation (hereafter, Regulation). This Regulation provides a general framework to coordinate most flight movements of NATO aircraft within the Dutch jurisdiction. Article 1(1) of the Regulation provides that foreign military aircraft of NATO member states are permitted to fly, land and take off within Dutch jurisdiction, subject to the conditionsset out in the Regulation. However, under the Regulation, NATO military aircraft only have this exemption in principle. Article 1(2) of the Regulation explicitly provides that the general permission that is given to NATO aircraft can be revoked, amended or subjected to other conditions by the Minister of Defence for general orspecific purposes. In other words, the government still retains a discretionary power which can be used to refuse entry to NATO military aircraft.

The existence of this discretionary power is not merely theoretical. It was extensively discussed in the Dutch House of Representatives and became subject of motions in the context of noise pollution caused by NATO aircraft operating from the air base Geilenkirchen, just over the border with Germany. The Dutch government opposed invoking Article 1(2), pointing out the importance of reciprocity in the NATO alliance. It did acknowledge, however, that the Regulation does not prevent the Netherlands from restricting or refusing overflight rights for allied aircraft.

The decision not to trigger Article 1(2) of the Regulation for noise pollution purposes can be easily explained on the basis of the principle of reciprocity. However, the situation arising from the conflict in Iran calls for different considerations. The reciprocity argument carries less weight in the present context, as the conflict with Iran does not form part of any NATO operation. If the law of neutrality indeed requires third states to ensure that their territory is not used in support of military operations by the parties involved in an international armed conflict, the Netherlands already possesses the domestic legal instruments necessary to give effect to that obligation by denying overflight rights.

Conclusion

While the Dutch government declared that ‘it values greatly the observance of international law’, this analysis suggests that an important dimension of this legal framework remains overlooked. If the Netherlands is not a party to the conflict, it remains bound by the law of neutrality, which requires neutral states to prevent their territory from being used in support of belligerent military operations. The Dutch case is particularly noteworthy because the legal instruments needed to give effect to this obligation already exist in domestic law. Article 1(2) of the Regulation provides the Minister of Defence with the discretionary power required to comply with this duty and to close the Dutch airspace to US military flights connected with the conflict in Iran. The legal instruments are already in place. The question is therefore not whether the Netherlands can act, but whether its current practice is compatible with the obligations deriving from the law of neutrality.