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in foreign states. In the case of The Three Friends the Supreme Court, referring to such clauses of Presidential Messages as are quoted above, said:
We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place, and it cannot be doubted that, this being so, the neutrality act in question is applicable.
It is evident that a status between peace and belligerency is recognized by the various departments of the government of the United States. This is not the status of non-hostile redress which has long been mentioned in books on international law, but a status which while not war may have certain consequences and characteristics of war.
As the Supreme Court of the United States declared in the case mentioned above:
The distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred.
The English courts have taken a similar position, maintaining that certain facts of Parliament become effective since their lordships find these propositions established beyond all doubt, there was an insurrection in the island of Cuba; there were insurgents who had formed themselves into a body of people acting together, undertaking and conducting hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba. (Salvador, L. R. 3, P. C. 218.)
The distinction between insurgency and belligerency, or as was well said in the opinion of Chief Justice Fuller in the case of The Three Friends, between "war in a material sense” and “war in a legal sense, has received far more recognition in international practice than in international law. It would seem that this status of insurgency recognized by the courts and by the other departments of government should not be ignored by students of international law.
The existence of an insurrection, such as referred to in the Constitution of the United States, may be a matter largely of domestic concern, but particularly since the middle of the nineteenth century and with the development of maritime relations, there has developed a body of international practice in regard to insurrections in foreign states.
Domestic law applies only to a limited extent on the high sea. It is necessary that some law should be recognized, as the high sea is open to all. In order that conflicts may be avoided a body of generally accepted practices and principles, called maritime international law, has developed. With the change in conditions this law has changed and is still changing. The extension in recent years of struggles of parties subject to a state beyond the jurisdiction of the state or the contact of the party in opposition to the parent state with citizens of foreign states has given rise to certain practices which have become generally recognized as proper and expedient. It is certain that the early maritime international law of war was concerned with parties having belligerent status and these laws were the same for all those engaged whether state with state or state with other belligerents.
When a domestic struggle which has not yet attained the status of belligerency extends to the sea, foreign states are naturally affected and should have some rules to govern their conduct and to determine their treatment of the party to the struggle which is not yet recognized as a state or as a belligerent. In the exceptional case in Brazil in 1893-94, when the party in opposition to the parent state relied entirely on a naval force, foreign states were widely affected.
President Cleveland in 1895 issued a proclamation upon the subject of the insurrection in Cuba as follows:
WHEREAS, The island of Cuba is now the seat of serious civil disturbances, accompanied by armed resistance to the authority of the established government of Spain, a power with which the United States are and desire to remain on terms of peace and amity; and
WHEREAS, The laws of the United States prohibit their citizens, as well as all others being within and subject to their jurisdiction, from taking part in such disturbances adversely to such established government, by accepting or exercising commissions for warlike service against it, by enlistment or procuring others to enlist for such service, by fitting out or arming or procuring to be fitted out and armed ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on
foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such government:
Now, therefore, in recognition of the laws aforesaid and in discharge of the obligations of the United States toward a friendly power, and as a measure of precaution, and to the end that the citizens of the United States and all others within their jurisdiction may be deterred from subjecting themselves to legal forfeitures and penalties, I, Grover Cleveland, President of the United States of America, do hereby admonish all such citizens and other persons to abstain from every violation of the laws hereinbefore referred to, and do hereby warn them that all violations of such laws will be rigorously prosecuted; and I do hereby enjoin upon all officers of the United States charged with execution of said laws the utmost diligence in preventing violations thereof and in bringing to trial and punishment any offenders against the same.
Such admission of insurgency implies generally (1) that there is within the disturbed state a hostile, armed uprising temporarily beyond the control of its civil authority; (2) that this party is pursuing public ends by force, i. e., endeavoring to change the form of government to reform the administration, or to attain some similar object; (3) that the conditions within the state are so disturbed as to materially affect outside states, and (4) that in the absence of control by the parent state outside states must have some relations with the insurgents.
Mr. Chief Justice Fuller, in the case of Underhill v. Hernandez, November 29, 1897, says:
Revolutions or insurrections may inconvenience other nations, but by accommodation to the facts the application of settled rules is readily reached. And where the fact of the existence of war is in issue in the instance of complaint of acts committed within foreign territory, it is not an absolute prerequisite that that fact should be made out by any acknowledgment of belligerency, as other official recognition of its exist! ence may be sufficient proof thereof. (168 U. S. 250.)
English, American and other courts have recognized that the existence of an insurrection changes the status of certain persons and may bring new rights and duties. The United States courts have decided that the admission of the existence of insurgency brings into operation the neutrality laws, and the English courts have made similar decisions in regard to the foreign enlistment act.
In 1895 when Madagascar uprose against French authority, Great Britain considered issuing a declaration of neutrality. The French
ambassador protested that such a course would be unusual. Great Britain refrained from issuing the declaration, apparently considering the revolted protectorate in the same category with a revolting colony, or other dependency. The French, however, observed the laws of war in their treatment of the insurgents. The English law and practice maintains that insurrection in a dependent community “is waging war upon the queen,” and that this is an act which may involve annexation of the revolting territory. England has, however, treated these uprisings, as in the case of Manipur, 1891, as crimes to which the penal law extended, justifying thus the execution of the leaders of the revolt as criminals. In the case of the Abyssinian revolt of 1895, Italy announced, on the twenty-fifth of July, that no foreign state had relations to or right to interfere with the insurgents. Great Britain seems to have taken a like position, at first, with reference to the South African republic, indicating that she would not view with favor any foreign propositions touching her attitude toward that republic; indeed, that there was no war in South Africa. It is evident from such cases that he parent state may prefer to admit the existence of an insurrection while not acknowledging the existence of belligerency. Policy may also influence a foreign state to prefer to admit the existence of an insurrection rather than to recognize belligerency. President McKinley, in his message of December 6, 1897, thus summarizes the matter as regards Cuba:
Turning to the practical aspects of a recognition of belligerency and reviewing its inconveniences and positive dangers, still further pertinent considerations appear.
In the code of nations there is no such thing as a naked recognition of belligerency unaccompanied by the assumption of international neutrality. Such recognition without more will not confer upon either party to a domestic conflict a status not therefore actually possessed or affect the relation of either party to other states. The act of recognition usually takes the form of a solemn proclamation of neutrality which recites the de facto condition of belligerency as its motive. It announces a domestic law of neutrality in the declaring state. It assumes the international obligations of a neutral in the presence of a public state of war. It warns all the citizens and others within the jurisdiction of the proclaimant that they violate those rigorous obligations at their own peril and cannot expect to be shielded from the consequences. The rights of visit and search on the seas and seizure of vessels and cargoes and contraband of war and good prize under admiralty law must under international law be admitted as a legitimate consequence of a proclamation of belligerency. While according to the equal belligerent rights defined by public law to each party in our ports disfavors would be imposed on both, which while nominally equal would weigh heavily in behalf of Spain herself. Possessing a navy and controlling the ports of Cuba her maritime rights could be asserted not only for the military investment of the island but up to the margin of our own territorial waters, and a condition of things would exist for which the Cubans within their own domain could not hope to create a parallel; while its creation through aid or sympathy from within our domain would be even more impossible than now, with the additional obligations of international neutrality we would perforce assume.
Or, as summarized by Professor John Bassett Moore, at that time:
Moreover, the Cuban insurgents can at the present time purchase arms and munitions of war; they and their friends and sympathizers can go and come, unarmed and unorganized, to take part in the conflict; they can sell their securities to any one who will buy them. More than this they could not do, if their belligerency were recognized, unless they had ships on the ocean. They could neither employ persons in the United States to serve in their forces, nor fit out and arm vessels in our ports, nor set on foot hostile expeditions from our territory. On the other hand, Spain would be immediately invested by international law, as well as by the treaty of 1795, with the international rights of belligerency, which she has so far not claimed, including the right of visitation and search on the high seas, and the capture and condemnation of our vessels for violations of neutrality. It would enable Spain practically to put an end to the transportation of munitions of war for the insurgents. It would place under Spanish supervision all that vast commerce which passes through the waters adjacent to Cuba. (21 Forum, 297.)
In other words, a foreign state which recognizes the belligerency of a party to a domestic conflict thereby changes the status of the parties concerned, giving to the parties in the conflict a war status with its obligations and duties and assuming for itself the rights and obligations of neutrality. Prior to such recognition, if the parent state does not recognize the existence of war, the foreign state is largely judge of its relations to and conduct toward the parties to the domestic conflict. There may be political, commercial, geographical, or other conditions which make it inexpedient for a foreign state to recognize an insurgent party as a belligerent.
It is evident that there may be many reasons why a foreign state would be disinclined to recognize insurgents as belligerents while at the same time the foreign states might be obliged to take cognizance of the existence of the insurrection. It is the fact that this status of insurrection brings new obligations to states and in some cases advantages.