International Law. A Treatise Volume Ii Part 9

[Footnote 99: See above, vol. I. -- 207.]

[Footnote 100: See Martens, _N.R.G._ XVIII. p. 63.]

[Footnote 101: See above, vol. I. -- 183.]

[Footnote 102: See Martens, _N.R.G._ 2nd Ser. XII. p. 491, and above, vol. I. -- 195, p. 267, note 2, and -- 568, p. 592, note 2.]

[Footnote 103: See above, vol. I. -- 184.]

[Footnote 104: See Martens, _N.R.G._ 2nd Ser. x.x.xIV. (1907), p. 703.]

As regards temporary neutralisation, it is possible for parts of the territories of belligerents and certain parts of the Open Sea to become neutralised through a treaty of the belligerents for the time of a particular war only. Thus, when in 1870 war broke out between France and Germany, the commander of the French man-of-war[105] _Dupleix_ arranged with the commander of the German man-of-war _Hertha_--both stationed in the j.a.panese and Chinese waters--that they should, through their emba.s.sies in Yokohama, propose to their respective Governments the neutralisation of the j.a.panese and Chinese waters for the time of the war. Germany consented, but France refused the neutralisation. Again, at the commencement of the Turco-Italian War in 1911, Turkey proposed the neutralisation of the Red Sea, but Italy refused to agree to it.

[Footnote 105: See Perels, -- 33, p. 160, note 2.]

[Sidenote: a.s.serted exclusion of the Baltic Sea from the Region of War.]

-- 73. That there is at present no part of the Open Sea neutralised is universally recognised, and this applies to the Baltic Sea, which is admittedly part of the Open Sea. Some writers,[106] however, maintain that the littoral States of the Baltic have a right to forbid all hostilities within the Baltic in case of a war between other States than themselves, and could thereby neutralise the Baltic without the consent and even against the will of the belligerents. This opinion is based on the fact that during the eighteenth century the littoral States of the Baltic claimed that right in several conventions, but it appears untenable, because it is opposed to the universally recognised principle of the freedom of the Open Sea. As no State has territorial supremacy over parts of the Open Sea, I cannot see how such a right of the littoral States of the Baltic could be justified.[107]

[Footnote 106: See Perels, pp. 160-163, who discusses the question at some length and answers it in the affirmative.]

[Footnote 107: See Rivier, II. p. 218; Bonfils, -- 504; Nys, I. pp.

448-450.]

V

THE BELLIGERENTS

Vattel, III. -- 4--Phillimore, III. ---- 92-93--Taylor, ---- 458-460--Wheaton, -- 294--Bluntschli, ---- 511-514--Heffter, ---- 114-117--Lueder in Holtzendorff, IV. pp. 237-248--Kluber, -- 236--G. F. Martens, II. -- 264--Gareis, -- 83--Liszt, -- 39, II.--Ullmann, ---- 168-169--Pradier-Fodere, VI. Nos.

2656-2660--Rivier, II. pp. 207-216--Nys. III. pp. 114-118--Calvo, IV. ---- 2004-2038--Martens, II. -- 108--Heilborn, _System_, pp.

333-335.

[Sidenote: Qualification to become a Belligerent (_facultas bellandi_).]

-- 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 va.s.sal 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 va.s.sal 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 va.s.sal 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.]

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 va.s.sal, between a full-Sovereign State and a va.s.sal 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 va.s.sal 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 Inst.i.tute 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: Princ.i.p.al 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 princ.i.p.al and accessory belligerent parties are to be distinguished.

Princ.i.p.al belligerent parties are those parties to a war who wage it on the basis of a treaty of alliance, whether such treaty was concluded before or during the war. On the other hand, accessory belligerent parties are such States as provide help and succour only in a limited way to a princ.i.p.al belligerent party at war with another State; for instance, by paying subsidies, sending a certain number of troops or men-of-war to take part in the contention, granting a coaling station to the men-of-war of the princ.i.p.al party, allowing the latter's troops a pa.s.sage through their territory, and the like. Such accessory party becomes a belligerent through rendering help.

The matter need hardly be mentioned at all were it not for the fact that the question was formerly discussed by publicists whether or not it involved a violation of neutrality on the part of a neutral State in case it fulfilled in time of war a treaty concluded in time of peace, by the terms of which it had to grant a coaling station, the pa.s.sage of troops through its territory, and the like, to one of the belligerents.

This question is identical with the question, to be treated below in -- 305, whether a qualified neutrality, in contradistinction to a perfect neutrality, is admissible. Since the answer to this question is in the negative, such State as fulfils a treaty obligation of this kind in time of war may be considered by the other side an accessory belligerent party to the war, and all doubt in the matter ought now to be removed since article 2 of Convention V. of the Second Peace Conference[114]

categorically enacts that "belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies."

[Footnote 114: See also article 3 of Convention V.]

VI

THE ARMED FORCES OF THE BELLIGERENTS

Vattel, III. ---- 223-231--Hall, ---- 177-179, 181--Lawrence, ---- 148-150--Westlake, II. pp. 60-63--Manning, pp.

206-210--Phillimore, III. -- 94--Twiss, II. -- 45--Halleck, I. pp.

555-562--Taylor, ---- 471-476--Moore, VII. -- 1109--Wheaton, ---- 356-358--Bluntschli, ---- 569-572--Heffter, ---- 124-124A--Lueder in Holtzendorff, IV. pp. 371-385--Kluber, 267--G. F. Martens, II. -- 271--Gareis, -- 83--Ullmann, -- 175--Liszt, -- 40, II.--Bonfils, Nos.

1088-1098--Despagnet, Nos. 520-523--Pradier-Fodere, VI. Nos.

2721-2732, and VIII. Nos. 3091-3102--Nys, III. pp.

155-202--Rivier, II. pp. 242-259--Calvo, IV. ---- 2044-2065--Fiore, III. Nos. 1303-1316, and Code, Nos. 1455-1475--Martens, II. -- 112--Longuet, ---- 26-36--Pillet, pp. 35-59--_Kriegsbrauch_, pp.

4-8--Perels, -- 34--Boeck, Nos. 209-213--Dupuis, Nos.

74-91--Lawrence, _War_, pp. 195-218--Zorn, pp. 36-73--Bordwell, pp. 228-236--_Land Warfare_, -- 17-38--Meurer, II. ---- 11-20--Spaight, pp. 34-72--Ariga, pp. 74-91--Takahashi, pp. 89-93.

[Sidenote: Regular Armies and Navies.]

-- 78. The chief part of the armed forces of the belligerents are their regular armies and navies. What kinds of forces const.i.tute a regular army and a regular navy is not for International Law to determine, but a matter of Munic.i.p.al Law exclusively. Whether or not so-called Militia and Volunteer corps belong to armies rests entirely with the Munic.i.p.al Law of the belligerents. There are several States whose armies consist of Militia and Volunteer Corps exclusively, no standing army being provided for. The Hague Regulations expressly stipulate in article 1 that in countries where Militia or Volunteer Corps const.i.tute the army or form part of it they are included under the denomination "Army." It is likewise irrelevant to consider the composition of a regular army, whether it is based on conscription or not, whether natives only or foreigners also are enrolled, and the like.

[Sidenote: Non-combatant Members of Armed Forces.]

-- 79. In the main, armed forces consist of combatants, but no army in the field consists of combatants exclusively, as there are always several kinds of other individuals, such as couriers, aeronauts, doctors, farriers, veterinary surgeons, chaplains, nurses, official and voluntary ambulance men, contractors, canteen-caterers, newspaper correspondents,[115] civil servants, diplomatists, and foreign military attaches[116] in the suite of the Commander-in-Chief.

[Footnote 115: See Rey in _R.G._ XVII. (1910), pp. 73-102, and Higgins, _War and the Private Citizen_ (1912), pp. 91-114.]

[Footnote 116: See Rey in _R.G._ XVII. (1910), pp. 63-73.]