Top Photo: Federal Law Gazette of the Republic of Austria enacting Austrian neutrality.
By Helmut Tichy
Austria’s international legal status of permanent neutrality is a result of the Cold War. In the Moscow Memorandum, a political document of April 15, 1955, the Austrian delegation promised that Austria would adopt a status of neutrality following the Swiss model.
This promise opened the way for the conclusion of the negotiations of the Austrian State Treaty with the Soviet Union, the United States, the United Kingdom and France, the signature of this Treaty on May 15, 1955 and the withdrawal of the Allied Forces which had occupied Austria since 1945. On October 26, 1955, the first day without foreign troops in Austria, the parliament adopted the Constitutional Law on the Neutrality of Austria, in which the country declared its permanent neutrality and committed itself to maintain and defend its neutrality with all means at its disposal.
Furthermore, the law stipulates that Austria shall never accede to any military alliances nor permit the establishment of military bases of foreign states on its territory. Subsequently, Austria notified its new status of permanent neutrality to all states with which it had diplomatic relations and thereby established this status under international law. Some of the states notified recognized Austria’s permanent neutrality explicitly; others simply took note of it or acquiesced.
Thus, the content of Austria’s permanent neutrality is governed both by international law and by Austrian constitutional law. It is important to underline that permanent neutrality was a political precondition for the conclusion of the Austrian State Treaty, but no legal requirement. Austria adopted the status of permanent neutrality as a sovereign state. It is therefore primarily for Austria to interpret its neutrality in accordance with international law and it may, if it wishes to do so, terminate this status unilaterally.
Austria’s own interpretation of its status of neutrality soon became evident. Austria – unlike Switzerland – has always regarded permanent neutrality as compatible with membership in the United Nations (UN) and joined the UN already in December 1955. In the following decades, Austria pursued a “policy of active neutrality”, i.e. it offered its facilities as meeting place between East and West, acted as mediator in specific conflicts, participated in a number of UN peacekeeping operations and became the host country of several international organizations and the third seat of the UN.
The concept of permanent neutrality implies a series of measures to be taken already in peacetime to ensure neutrality in times of war. For this reason, several Austrian laws contain provisions enabling Austria to implement its neutrality obligations and policies, e.g. the Criminal Code, the War Materials Act, the Foreign Trade Act and the laws establishing the conditions for Austrian peacekeeping missions abroad and for the transit of foreign troops through Austria. After the end of the Cold War, two major events led to a fundamental reassessment and to the reduction of the scope of Austria’s permanent neutrality: First, the Iraq/Kuwait conflict in 1990/91, when the UN Security Council decided to authorize the use of force against Iraq in reaction to the illegal occupation of Kuwait by that country.
Up to 1990, Austria had argued that it was not bound by decisions of the Security Council to the extent that they were in conflict with its permanent neutrality and that the Security Council, whose members had accepted Austria’s permanently neutral status, had to take that into account. As the UN system of collective security had been dysfunctional during the Cold War, this view was never seriously challenged. However, in the context of the Iraq/Kuwait conflict, Austria reconsidered its position and concluded that use of force authorized by the Security Council did not activate its permanent neutrality, thereby adapting its position to the new international environment after the end of the Cold War.
Secondly, the accession of Austria to the European Union (EU) in 1995, which entailed Austria’s full participation in the Common Foreign and Security Policy (CFSP) of the EU. To that end, a specific Article enabling such full participation was inserted in the Austrian Federal Constitution which, implicitly, again modified the scope of Austria’s permanent neutrality: it is now the understanding that action taken within the framework of CFSP is not in conflict with Austria´s neutrality.
Thus, Austrian permanent neutrality was effectively reduced to its core elements as contained in the Constitutional Law of 1955, i.e. non-participation in wars, defense of neutrality with all means, no accession to military alliances, and no foreign military bases in Austria. So far, the EU does not constitute a military alliance, as the common defense envisaged in Article 42 (2) of the Treaty on European Union (TEU) has not yet been realized – and can only be realized by a unanimous decision of the European Council.
Furthermore, this Article explicitly stipulates that CFSP does not prejudice the specific character of the security and defense policy of certain EU member states. And the mutual assistance clause concerning cases of armed aggression (Article 42 (7) TEU) contains the same non-prejudice clause as Article 42 (2), which is to be understood as a reference to neutral member states and thus allows Austria to provide such assistance as is in conformity with its permanent neutrality.
Finally, neutrality is only relevant in the case of “war” in the legal sense, i.e. in an armed conflict between two or more states, in which all peaceful relations between these states are interrupted and in which at least one state intends to use force in a comprehensive manner. Such “wars” are rare, states avoid interrupting all peaceful relations during armed conflicts, and most armed conflicts today are of an internal nature, involving non-state actors at least on one side. Armed conflicts not meeting the criteria of a “war” – including military measures taken or authorized by the Security Council – are no “wars” that would trigger the neutrality of permanently neutral states.
In light of the development described above, Austria’s permanent neutrality is now only relevant in international armed conflicts that can be qualified as “wars”, e.g. because the use of force cannot be based on a binding decision of the UN Security Council, and if the use of force is not based on a EU/ CFSP decision.
As mentioned before, the practical importance of Austria’s permanent neutrality today lies in prohibiting Austria to conclude military alliances and to permit foreign military bases on its territory. It also requires a thorough legal assessment by the Austrian authorities before foreign military aircraft are granted overflight rights over Austria. Much of what used to be referred to specifically as “policy of neutrality” is now the general foreign policy of a state emphasizing the importance of the Rule of Law in international relations and offering its assistance to promote the peaceful settlement of disputes.
Dr. Helmut Tichy is the Legal Advisor to the Federal Ministry for Europe, Integration and Foreign Affairs. His foreign postings led him to Belgrade (1984), Geneva (1985-1988) and Brussels (1993-2000). Furthermore, he served as deputy head of the Vienna Office of the United Nations High Commissioner for Refugees (UNHCR) from 1988 -1990. He also is Professor for International Law and International Organizations at the Karl- Franzens University Graz.