[108] See Heilborn, System, p. 333.
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.
[109] See Martens, N.R.G. 2nd Ser. IV. pp. 12, 14, 172.
[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 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.
[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.
[112] See above, § [56], and Baty, International Law in South Africa (1900), pp. 66-68.
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.