Retrieving Neutrality Law to Consider Other Foreign Fighters Under International Law

Since the early twentieth century, scholarship has debated the continued relevance of neutrality law in an international system based on collective security. This paper contributes to continued thinking about the notion of neutrality, by considering what questions may be opened up when neutrality law’s rules on private foreign enlistment are examined alongside contemporary practice in response to the phenomenon of foreign fighters. Specifically, this paper retrieves earlier contesting views surrounding the departure of foreign volunteers to armed conflict under traditional neutrality law, and suggests how and why these debates can be of contemporary interest to a consideration of law and policy regulating foreign incursion and various kinds of foreign fighters today. Australia’s legislative response to foreign incursion by those within its jurisdiction, and its recently enacted “declared area offence” relating to parts of Syria and Iraq, provide one illustrative example.