International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
Whenever a case arises in which a State lacking the legal qualification
to make war nevertheless actually makes war, such State is a
belligerent, the contention is real war and all the rules of
International Law respecting warfare apply to it.[111] Therefore, an
armed contention between the suzerain and the vassal, between a
full-Sovereign State and a vassal State under the suzerainty of another
State, and, lastly, between a Federal State and one or more of its
members, is war[112] in the technical sense of the term according to the
Law of Nations.
[Footnote 111: This is quite apparent through the fact that Bulgaria by
accession became a party to the Geneva Convention at a time when she was
still a vassal State under Turkish suzerainty.]
[Footnote 112: See above, § 56, and Baty, _International Law in South
Africa_ (1900), pp. 66-68.]
[Sidenote: Insurgents as a Belligerent Power.]
§ 76. The distinction between legal qualification and actual power to
make war explains the fact that insurgents may become a belligerent
Power. It is a customary rule of the Law of Nations that any State may
recognise insurgents as a belligerent Power, provided (1) they are in
possession of a certain part of the territory of the legitimate
Government; (2) they have set up a Government of their own; and (3) they
conduct their armed contention with the legitimate Government according
to the laws and usages of war.[113] Such insurgents in fact, although
not in law, form a State-like community, and practically they are making
war, although their contention is by International Law not considered as
war in the technical sense of the term as long as they have not received
recognition as a belligerent Power.
[Footnote 113: See above, § 59. See also Rougier, _Les guerres civiles_,
&c. (1903), pp. 372-447, and Westlake, I. pp. 50-57. The Institute of
International Law, at its meeting at Neuchatel in 1900, adopted a body
of nine articles concerning the rights and duties of foreign States in
case of an insurrection; articles 4-9 deal with the recognition of the
belligerency of insurgents. See _Annuaire_, XVIII. p. 227.]
[Sidenote: Principal and accessory Belligerent Parties.]
§ 77. War occurs usually between two States, one belligerent party being
on each side. But there are cases in which there are on one or on both
sides several parties, and in some of such cases principal and accessory
belligerent parties are to be distinguished.
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