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There may also be reasons which make the parent state reluctant to recognize its insurgent subjects as belligerents, thus giving them full war status at home and abroad. Sometimes the parent state has endeavored before any recognition of belligerency to prescribe the attitude of foreign states toward its rebellious subjects. This has been a common procedure on the part of the states where revolutions have been frequent. Many questions were raised in 1885 during the insur- . rection in the United States of Colombia. The President of Colombia decreed:
That as the vessels of the opposing party in the port of Cartagena were flying the Colombian flag, it was in violation of right and placed that party beyond the pale of international law.
The United States refused to recognize the validity of the decree as affecting the relations of its officers to the insurgent party and Great Britain took a similar stand. Hall has well said:
It is impossible to pretend that acts which are done for the purpose of setting up a legal state of things and which may in fact have already succeeded in setting it up, are piratical for want of external recognition of their validity, when the grant of that recognition is properly dependent in the main upon the existence of such a condition of affairs as can only be produced by the very acts in question.
Yet acts of the insurgents are liable to such penalties as the parent state may inflict. Foreign states do not generally take extreme measures against insurgents. They do not permit visit and search on the high seas, as the obligation to submit to this interference with the freedom of commerce rests upon a neutral only when there is war, and until there is war there can be no neutral in the sense of international law. The right of visit and search is of course denied to the parent state on the same grounds as to the insurgent.
As regards relations of insurgents and parent state it may be said that they must so far as possible observe the rules of civilized warfare. This is expedient in order that the parent state may maintain the respect of sister states and in order that the insurgents may, if successful, be more readily admitted into the family of nations.
It is fully established that decrees of the parent state putting those in insurrection against it beyond the pale of law, or condemning them to unusual treatment, are not binding upon foreign states. Such a decree may be regarded as an admission by the parent state of the
existence of an insurrection within its borders. The legitimate government cannot in any way throw the burden of executing its decrees upon a foreign state. Even its decrees of closure in time of insurrection must be supported by sufficient force to render them effective.
The United States was early in the Civil War forced to give up the claims that the confederate cruisers were piratical and that other forces were bands of outlaws.
Attempts were also made in 1885 to induce the United States to prevent the sale of arms to the Colombian insurgents, but Mr. Bayard said in a letter of March 25, 1885:
That the existence of a rebellion in Colombia does not authorize the public officials of the United States to obstruct ordinary commerce in arms between citizens of this country and the rebellious or other parts of the territory of the Republic of Colombia.
Attempts have also been made by the parent state to obtain advantages of a blockade without the obligations of war through a proclamation declaring ports held by insurgents closed. Foreign states have, however, usually taken the position that such decrees are of no effect and the ports in the hands of the insurgents are closed only to the extent to which an effective force may physically prevent entrance.
The parent state cannot prescribe the attitude which a foreign state shall assume toward insurgents. It is, however, within the competence of the foreign state to determine its own attitude toward insurgents so far as this may accord with the laws of humanity and its obligations to a friendly state. The foreign state has full right to deny to the insurgents the right to exercise any belligerent rights toward its subjects. A foreign state, for example, would not be under any obligation to allow the exercise of the right of visit or search of its vessels and if its vessels were seized by insurgents, the war vessels of the foreign state might rescue them on the high seas. Admiral Benham, at the time of the Brazilian revolt of 1893-94 took a position which has been generally approved. He maintained that American merchant vessels in the harbor of Rio Janeiro were liable to risk if they came within the field of actual hostile operations during the continuance of an engagement, but that interference by insurgents with legitimate movements of American merchant vessels at other times would not be permitted.
A foreign state would not permit the parent state to prescribe the attitude which the foreign government should assume toward its insur
gent subjects. A foreign state would not permit the insurgents to prescribe what attitude the foreign government should assume toward other parties involved in the insurrection. Probably the most frequent action of this kind on the part of the insurgents, is seen in the attempt of the insurgents to proclaim blockades. It is clear, however, that blockade is a war measure and involves the existence of courts to pass upon its violations and to decree penalties. In absence of such responsible courts a foreign state would not be under obligation to respect such insurgent proclamation. No more would a foreign state permit insurgents to visit and search its merchant vessels on the high seas or to make captures. As Secretary Hay said:
It seems important to discriminate between the claim of a belligerent to exercise quasi-sovereign rights in accordance with the tenets of international law and the conduct of hostilities by an insurgent against the titular government.
The formal right of the sovereign extends to acts on the high seas, while an insurgent's right to cripple his enemy by any usual hostile means is essentially domestic within the territory of the titular sovereign whose authority is contested. To deny to an insurgent the right to prevent the enemy from receiving material aid cannot well be justified without denying the right of revolution. If foreign vessels carrying
. aid to the enemies of the insurgents are interfered with within the territorial limits, that is apparently a purely military act incident to the conduct of hostilities, and, like any other insurgent interference with foreign property within the theater of insurrection, is effected at the insurgent's risk.
He also maintained that
within the territorial limits of the country, the right to prevent the access of supplies to their enemy is practically the same on water as on land-a defensive act in the line of hostility to the enemy. But in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters—their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents. (Letter to Secretary of Navy, November 15, 1902.)
The Institute of International Law, at its twentieth session in September, 1901, referring to the relation of a foreign power to an insurgent blockade adopted the following resolution:
Tant qu'elle n'aura pas reconnu elle-même la belligérance elle n'est pas tenue de respecter les blocus établis par les insurgés sur les portions du littoral occupées par le gouvernement régulier.
It is unfortunate that the word blockade has ever been used by insurgents, as by the provisions of the Declaration of Paris, 1856, the word was definitely aimed to describe a war measure. A statement of the fact as supported by recent practice and opinion is that insurgents not yet recognized as possessing the attributes of full belligerency can not establish a blockade, according to the definition of international law.
There is no responsible body behind the insurgents.
An insurgent power is not a sovereign maintaining equal relations with other sovereigns, so that an insurgent proclamation of blockade does not rest on the same footing as one issued by a recognized sovereign power. The seizure of a vessel attempting to run an insurgent blockade is not generally followed by admiralty proceedings for condemnation as good prize, and if such proceedings were nominally resorted to a decree of the condemning court would lack the title to that international respect which is due from sovereign states to the judicial acts of a sovereign. The judicial power being a coördinate branch of government, recognition of the government itself is a condition precedent to the recognition of the competency of its courts and the acceptance of their judgments as internationally valid.
Nor is foreign state bound to recognize an act of an insurgent as proper because some other foreign state has recognized the insurgents as belligerents.
In the letter mentioned above, Secretary Hay also said:
To found a general right of insurgent blockade upon the recognition of belligerency of an insurgent by one or a few foreign powers would introduce an element of uncertainty. The scale on which hostilities are conducted by the insurgents must be considered. In point of fact, the insurgents may be in a physical position to make war against the titular authority as effectively as one sovereign could against another. Belligerency is a more or less notorious fact of which another government, whose commercial interests are affected by its existence, may take cognizance by proclaiming neutrality toward the contending parties, but such action does not of itself alter the relations of other governments which have not taken cognizance of the existence of hostilities. Recognition of insurgent belligerency could merely imply the acquiescence by the recognizing government in the insurgent seizure of shipping flying the flag of the recognizing state. It could certainly not create a right on the part of the insurgents to seize the shipping of a state which has not recognized their belligerency.
This also accords with European opinion and with the resolutions of the Institute of International Law in 1901.
What has been said of blockade applies in principle to other insurgent action involving warlike operations. The insurgent cannot be permitted to attack neutral commerce, or exercise belligerent rights over neutrals. In the Chilean revolution of 1891, the diplomatic representatives of the United States, Germany, France and Great Britain, after consultation, declared the insurgent blockade illegal, the British admiral by implication left open the question as to whether there might not be contraband of war during an insurrection. Such a position could not be sustained as the insurgents are not responsible and cannot condemn goods as contraband with any more propriety than they can establish a blockade. They lack the proper prize tribunal.
Balmaceda, in 1891, declared various ports of Chili closed. Some of the European states, as well as the United States, declined to respect the decree. If ports in the possession of the insurgents could be closed by decree, there would be a close analogy to the old idea of a paper blockade. The principle has come to be generally recognized that in time of insurrection closure to be respected must be by effective force.
A general agreement on the part of various states was shown in their attitude toward the Haitien insurgents in 1902. This is evident in the letter of the commander of the U. S. Machias, to the insurgent commander on August 10, 1902. The letter was as follows:
SIR: I wish to give you notice that I am charged with the protection of British, French, German, Italian, Spanish, Russian and Cuban interests, as well as those of the United States. You are informed, also, that I am directed to prevent the bombardment of this city without due notice; also to prevent any interference with commerce by the interruption of telegraph cables or the stoppage of steamers engaged in innocent trade with a friendly power. All interference excepting with Haitien interests I shall endeavor to prevent.
That insurgents have not belligerent status is sufficient reason for refusing to their vessels the rights of belligerents in foreign ports.
Section 4295 of the United States Revised Statutes made it lawful for a private vessel to resist the aggression of an insurgent not yet recognized as a belligerent. This statute provides:
The commander and crew of any merchant vessel of the United States, owned wholly or in part by the citizens thereof, may oppose and