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insurrectionary conflicts. President Grant, in his first message of December 6, 1869, speaking of the struggle in Cuba, says:
But the contest has at no time assumed the conditions which amount to a war in the sense of international law, or which show the existence of a de facto political organization of the insurgents sufficient to justify a recognition of belligerency.
It is generally held that an insurrection does not "amount to a war in the sense of international law," but, as President Grant maintains, each nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive or to independent nations at war with each other.
The long struggle in Cuba, from 1868 to 1878, seems to have had, even from a foreign point of view, many of the characteristics of war. Such formal public documents, as Presidents' Messages, though addressed to Congress rather than to foreign powers, mention “the pending struggle," "bloodshed in Cuba," "disturbed condition of the island of Cuba," "insurrection," "contest," "deplorable strife in Cuba, “contending forces,” “ruinous conflict,” and other terms which indicate that the government did admit that the status of the island of Cuba was not that of peace. The Message of President Hayes, of December 2, 1878, stated that the Spanish government has officially announced the termination of the insurrection in Cuba and the restoration of peace throughout that island.
President Grant's Message, of December 7, 1875, often quoted since that time, discusses quite fully the reasons for not recognizing the belligerency of the "body of people” attempting to free themselves from Spain.
While conscious that the insurrection in Cuba has shown a strength and endurance which make it at least doubtful whether it be in the power of Spain to subdue it, it seems unquestionable that no such civil organization exists which may be recognized as an independent government capable of performing its international obligations and entitled to be treated as one of the powers of the earth.
In a former message to Congress I had occasion to consider this question, and reached the conclusion that the conflict in Cuba, dreadful and devastating as were its incidents, did not rise to the fearful dignity of war. Regarding it now, after this lapse of time, I am unable to see that
any notable success or any marked or real advance on the part of the insurgents has essentially changed the character of the contest. It has acquired greater age, but not greater or more formidable proportions.
Applying to the existing condition of affairs in Cuba the tests recognized by publicists and writers on international law, and which have been observed by nations of dignity, honesty, and power when free from sensitive, or selfish and unworthy motives, I fail to find in the insurrection the existence of such a substantial political organization, real, palpable, and manifest to the world, having the forms and capable of the ordinary functions of government toward its own people and to other states, with courts for the administration of justice, with local habitation, possessing such organization of force, such material, such occupation of territory, as to take the contest out of the category of a mere rebellious insurrection or occasional skirmishes and place it on the terrible footing of war, to which a recognition of belligerency would aim to elevate it.
Other Presidents of the United States have admitted the status of insurrection and commented upon its consequences. President Cleveland, in his Message of December 2, 1895, mentioned certain possible conditions which may exist and certain obligations which may result and yet there may not be war, but only insurrection. He said:
Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations on the coast. Besides deranging the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arousing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this government to enforce obedience to our neutrality laws and to prevent the territory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty.
President McKinley followed closely the opinions of the Messages of President Grant. In his Message of December 6, 1897,
, President McKinley said:
Of the untried measures there remain only: Recognition of the insurgents as belligerents; recognition of the independence of Cuba; neutral intervention to end the war by imposing a rational compromise between the contestants, and intervention in favor of one or the other party.
The courts of the United States would necessarily recognize such domestic insurrections as are mentioned in Art. I, 98, of the Constitution. The courts have also recognized the existence of insurrection 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 doubtthere 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 Constiition 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 existence 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