Volume Ii Part 9 (1/2)

[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.]