International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
History
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 74. As the Law of Nations recognises the status of war and its effects
as regards rights and duties between the two or more belligerents on the
one hand, and, on the other, between the belligerents and neutral
States, the question arises what kind of States are legally qualified
to make war and to become thereby belligerents. Publicists who discuss
this question at all speak mostly of a _right_ of States to make war, a
_jus belli_. But if this so-called right is examined, it turns out to be
no right at all, as there is no corresponding duty in those against whom
the right is said to exist.[108] A State which makes war against another
exercises one of its natural functions, and the only question is whether
such State is or is not legally qualified to exercise such function.
Now, according to the Law of Nations full-Sovereign States alone possess
the legal qualification to become belligerents; half-and part-Sovereign
States are not legally qualified to become belligerents. Since
neutralised States, as Switzerland, Belgium, and Luxemburg, are
full-Sovereign States, they are legally qualified to become
belligerents, although their neutralisation binds them not to make use
of their qualification except for defence. If they become belligerents
because they are attacked, they do not lose their character as
neutralised States, but if they become belligerents for offensive
purposes they _ipso facto_ lose this character.
[Footnote 108: See Heilborn, _System_, p. 333.]
[Sidenote: Possibility in contradistinction to qualification to become a
Belligerent.]
§ 75. Such States as do not possess the legal qualification to become
belligerents are by law prohibited from offensive or defensive warfare.
But the possession of armed forces makes it possible for them in fact to
enter into war and to become belligerents. History records instances
enough of such States having actually made war. Thus in 1876 Servia and
Montenegro, although at that time vassal States under Turkish
suzerainty, declared war against Turkey, and in March 1877, peace was
concluded between Turkey and Servia.[109] And when in April 1877 war
broke out between Russia and Turkey, the then Turkish vassal State
Roumania joined Russia, and Servia declared war anew against Turkey in
December 1877. Further in November 1885 a war was waged between Servia,
which had become a full-Sovereign State, and Bulgaria, which was at the
time still a vassal State under Turkish suzerainty; the war lasted
actually only a fortnight, but the formal treaty of peace was not signed
until March 3, 1886, at Bukarest.[110] And although Turkey is a party to
this treaty, Bulgaria appears as a party thereto independently and on
its own behalf.
[Footnote 109: See Martens, _N.R.G._ 2nd Ser. IV. pp. 12, 14, 172.]
[Footnote 110: See Martens, _N.R.G._ 2nd Ser. IV. p. 284.]
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