795.00/10–1950
Memorandum by the Acting Assistant Legal Adviser for Far Eastern Affairs (Snow) to the Planning Adviser, Bureau of Far Eastern Affairs (Emmerson)
Subject: Permanent Neutralization of Korea
1. You refer1 L/FE to NSC 81/1, September 9, 1950, paragraph 30 of which reads in part: “The United States should recommend that the United Nations Commission should consider the desirability of permanent neutralization of Korea accompanied by political undertakings by the R.O.K. and by other states separately, including the U.S.S.R., to refrain from any aggression. The question of United Nations guarantee should be studied but no United States commitment on this point should be made at this stage.” You request a legal comment on this proposal.
2. The Meaning of Permanent Neutralization
The proposal is in effect that Korea be made a “neutralized state”. A “neutralized state” is defined by Oppenheim as “a State whose independence and integrity are for all future time guaranteed by an [Page 982] international convention of the Powers, under the condition that such State binds itself never to take up arms against any other State except for defense against attack, and never to enter into such international obligations as would indirectly involve it in war”. 1 Oppenheim 217. The terms “independence and integrity” of course imply inviolability of territory, and Oppenheim holds that it follows from neutralization that the neutralized State can neither cede a part of its territory nor acquire new territory without the consent of the Powers. The creation of a “neutralized state” should be distinguished from neutralization of parts of states, rivers, canals etc (such as the Dardanelles); from protection in time of war arranged in special conventions for certain establishments (as the International Red Cross); from unilateral declarations that a State will always remain neutral (Iceland and the Holy See); and from undertakings made by bilateral treaty for a State to remain neutral if another State engages in war.
3. Examples of Neutralized States
There are only three examples of “neutralized states” in modern history,—Switzerland, Belgium and Luxemburg. Switzerland was neutralized by the Congress of Vienna, March 30, 1815 (reaffirmed after Waterloo, November 20, 1815). Switzerland acceded on May 27, 1815, and has since always succeeded in maintaining its neutrality. Belgium was neutralized by the Treaty of London, November 15, 1831, renewed at London, April 19, 1839. Its neutrality was violated in 1914, when Germany attacked, and was abrogated by the post-war treaties of Versailles, St. Germain and Trianon, and by the Locarno Pact of December 1, 1925. Luxemburg was neutralized at the Conference at London, May 11, 1887. Its neutrality was likewise violated in 1914. The neutralization of the Independent State of the Congo in 1885 has been considered a fourth example, but appears to have been an undertaking to respect the neutrality of a territorial area rather than a State and embraced no guarantees. It was terminated by annexation on the part of Belgium in 1907.
4. Object and Effectiveness of Neutralization
The object of neutralization of states appears to have been peace between the Great Powers, by eliminating the neutralized State as 1) a potential enemy on the border, 2) an avenue of approach for a hostile Power, or as 3) territory available for geographic expansion on the part of adjoining Powers. The effectiveness of the device appears to have been in inverse ratio to its necessity. In other words, in the case of Switzerland, where the physical nature of the terrain and the resolute character of the State, determined to maintain by force its [Page 983] independence, its integrity and its neutrality, made neutralization by international convention unnecessary, it was entirely effective. In Luxemburg, on the other hand, where neither the terrain, nor the size and resolution of the State were of such a nature as to secure its own neutrality, international neutralization was entirely ineffective in the hour of crisis. Even in Belgium, where the resolution and military powers of the State in 1914 were sufficient to hold up the German invasion long enough to save the day for France, the nature and strategic location of the terrain was such as to invite violation of the international convention and to make the international neutralization nugatory. It must be concluded that neutralization, so far as history goes, has entirely failed of its purpose. It has not had any effective influence in maintaining peace between the Great Powers, or even in protecting the neutralized State from invasion.
5. Compatibility of Neutralization with the Principle of the United Nations
On February 20, 1920, a Resolution of the Council of the League of Nations affirmed that the conception of neutrality on the part of members of the League is incompatible with the principle that all members will be obliged to cooperate in enforcing respect for their engagements. Nevertheless the Resolution recognized that Switzerland was in a unique situation based on a tradition of several centuries that has been explicitly incorporated in the Law of Nations. Accordingly it was found that the perpetual neutralization of Switzerland was justified in the interest of general peace and compatible with the Covenant.
It is believed by L/FE that neutralization, as a system of conventional guarantee against war or the spread of war, is equally incompatible with the concept of the United Nations. The political and territorial security of nations today is being sought in the guarantees afforded by the collective force of all nations, brought to bear against an aggressor nation. The neutralization of a single potential member of the United Nations adds nothing to the security of that State against wanton aggression, which is already guaranteed by the United Nations, but subtracts from the power of the United Nations to enforce its guarantee. It not only removes the neutralized State from the roll of the United Nations that stand ready to oppose and punish an aggressor (unless the aggression happens to be directed against the neutralized state itself), but it may also hamper action against an aggressor State by preventing access to the aggressor across the territory and territorial waters, and the air above them, of the neutralized State. This would be potentially true of any proposition, for instance, to remove Belgium from the Atlantic Union and transform her again [Page 984] into a neutralized State. It may be equally obvious should the Soviet Union or China become an aggressor, and the United Nations desire to project their defensive action across Korea.