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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 defend against any aggression, search, restraint, depredation or seizure which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.
While insurgents are thus restricted in their actions as regards foreigners, yet foreigners may not with impunity come within the field of actual hostile operations. Admiral Benham in the Brazilian revolution of 1893–94, admitted that any movement on the part of American merchant vessels during the continuance of actual hostile operations was at their own risk. The principle is generally accepted that no obligation to pay an indemnity exists when the party injured in an insurrection brings the injury upon himself.
It is also evident that the existence of an insurrection may cause inconvenience to a foreign state and, in some instances, notably in the case of the United States, it is admitted that it may bring into operation the domestic laws in regard to neutrality.
The neutrality laws of the United States forbid citizens to accept within its jurisdiction a commission or enlist others to serve a foreign prince, state, colony, district, or people at war with a similar body with which the United States is at peace. The courts have held that this applies to cases of insurrection as being war in a “material sense."
Similarly citizens may not fit out vessels. The government may expel foreign vessels from port if they act in violation of the neutrality laws.
Insurgency, then, may be regarded as a fact which is generally accepted in the international practice. The admission of this fact is by such domestic means as may seem expedient. This admission is made with the object of bringing to the knowledge of citizens, subjects, and officers of the state such facts and conditions as may enable them to act properly. In the parent state the method of conducting the hostilities may be a sufficient act of admission, and in a foreign state the enforcement of a neutrality law. The admission of insurgency by a foreign state is a domestic act which can give no offense to the parent state as might be the case in the recognition of belligerency. Insurgency is not a crime from the point of view of international law. A status of insurgency may entitle the insurgents to freedom of action in lines of hostile conflict which would not otherwise be accorded, as was seen in Brazil, in 1893–94, and in Chili in 1891. It is a status of potential belligerency which a state, for the purpose of domestic order, is obliged to recognize. The admission of insurgency does not place the foreign state under new international obligations as would the recognition of belligerency, though it may make the execution of its domestic laws more burdensome. It admits the fact of hostilities without any intimation as to their extent, issue, righteousness, etc. The admission of the existence of this status of insurgency makes unnecessary much of the earlier diplomatic circumlocution prevailing between the state divided by domestic strife and foreign states and makes it possible for states to conduct negotiations with much less liability to misunderstandings. This is particularly evident in the diplomatic correspondence of late years. The tendency to depart from or to give special interpretations to the principles ordinarily governing the recognition of belligerency is much less, because when a status of insurgency is admitted many of the domestic reasons for such recognition may disappear and the formal recognition need only take place when the international relations warrant such action. The admission of insurgency is the admission of an easily discovered material fact. The recognition of belligerency involves not only a recognition of a fact, but also questions of policy touching many other considerations than those consequent upon the simple existence of hostilities.
THE DOCTRINE OF CONTINUOUS VOYAGES 1
The doctrine of continuous voyages was developed by the English courts to defeat the devices by which American merchantmen endeavored to avoid the rule denying to neutrals in time of war the right to engage in a commerce from which they were excluded in time of peace. Under the system of colonial monopoly which then prevailed the trade with colonial possessions was confined to the ships of the home country. Colonists were regarded as the property of the mother country and as existing exclusively for her use and benefit. They were expected to supply markets for her manufactured goods and products for her markets. With respect to other countries colonies in a commercial sense had no existence. In theory, it has been said, the English colonies were no more to France than as if they were settlements in the mountains of the moon. For commercial purposes they were not on the same planet. Had they been annihilated it would have left no chasm in the commercial map of Germany. Had they been submerged the fact would have found its way into the chronicles of other countries as an interesting event but nothing more.
During the Seven Years' War the maritime supremacy of Great Britain enabled her to sweep French commerce from the seas and thus destroy her carrying trade with her colonies. Unable to maintain the monopoly of this trade, France attempted to retain a part of its benefits by transferring it to the care of the neutral Dutch. At first the Dutch merchants were granted licenses, or passes which authorized them to trade with the French colonies. But Great Britain, refusing to be thus deprived of the advantage she had gained, captured and condemned the ships upon the theory that they had forfeited their neutral character and had been in effect incorporated into the French marine. The force of this contention was such that the French
The Immanuel, 2 C. Rob. 186 (1799), Scott's Cases, 845, Sir Wm. Scott; 4 C. Rob. App. viii, n. 1; Anderson, History of Commerce, vol. i, p. 334.
· Brymer v. Atkins, 1 H. Black. 165, 191, Lord Loughborough. In Berens v. Rucker 1 W. Black. 314, Lord Mansfield said: “The rule is that if a neutral ship trades to a