48. Where Parent State Has Recognized Belligerency. When in its work of repression the parent State treats the insurrection as though it were productive of a state of war, as, for example, by proclaiming a blockade of ports held by the insurgents, it appears thereby to forfeit the right to claim that any subsequent act of external recognition is premature or inequitable. Thus Great Britain found a sufficient answer to the complaints of the United States concerning the Queen's proclamation of May 13, 1861, recognizing the Confederate States as insurgents, in the President's proclamation of a blockade during the previous month.2 (3) § 49. Where Parent State Has Not Recognized Bellig erency. Doubtless the foreign State need not show that at the time of according recognition there was a probability that eventual suc "The parent State may recognize the belligerency of a revolting community by acts which imply the existence of war or by formal declaration. Either course may justify recognition by foreign States." G. G. Wilson, Int. Law, 1910, 43. 2 Lord Russell, British Foreign Secy., to Mr. Adams, American Minister at London, May 4, 1865, Dip. Cor. 1865, I, 356; Same to Same, Aug. 30, 1865, id., 536. See, also, The Prize Cases, 2 Black, 635, 666-667, 669-670, Moore, Dig., I, 190; Williams v. Bruffy, 96 U. S., 176, 189-190, Moore, Dig., I, 191. "It has been held by this court in repeated instances that, though the late war was not between independent nations, yet, as it was between the people of different sections of the country, and the insurgents were so thoroughly organized and formidable as to necessitate their recognition as belligerents, the usual incidents of a war between independent nations ensued." United States v. Pacific Railroad, 120 U. S. 227, 233, Moore, Dig., I, 191. "It is to be observed that the rights and obligations of a belligerent were conceded to it [the Confederacy] in its military character, very soon after the war began, from motives of humanity and expediency by the United States." Chief Justice Chase, in Thorington v. Smith, 8 Wall. 10-11, quoted by Harlan, J., in Baldy v. Hunter, 171 U. S., 388, 393-394; also Moore, Dig., I, 192. It may be noted that on May 15, 1869, Mr. Fish, Secy. of State, in a communication to Mr. Motley, American Minister at London, declared that the President recognized the right of every power when a civil conflict had arisen within another State, and had attained a sufficient complexity, magnitude and completeness, to define its own relations and those of its citizens and subjects towards the parties to the conflict, so far as their rights and interests were necessarily affected by it. He added that "the necessity and the propriety of the original concession of belligerency by Great Britain at the time it was made have been contested and are not admitted. They certainly are questionable, but the President regards that concession as a part of the case only so far as it shows the beginning and the animus of that course of conduct which resulted so disastrously to the United States. It is important in that it foreshadows subsequent events." Moore, Dig., I, 192. See, also, Case of the United States, Part II, Geneva Arbitration, Papers cess would attend the insurgent movement.' It would appear, however, reasonable to demand on principle that the contest amount, at that time, to what may be fairly regarded as actual war, and as such, something more than " a mere contest of physical force, on however large a scale." 2 As has been well said: It must be an armed struggle, carried on between two political bodies, each of which exercises de facto authority over persons within a determinate territory, and commands an army which is prepared to observe the ordinary laws of war. It requires, then, on the part of the insurgents an organization purporting to have the characteristics of a State, though not yet recognized as such. The armed insurgents must act under the direction of this organized civil authority. An organized army is not enough. And all this, of course, must take place within the territorial limits recognized by foreign States as part of the parent country.3 To accord recognition to insurgents who have not achieved such a degree of success, and who are not so organized, manifests the giving of aid to a cause or movement which, at the time, is incapable of assuming those responsibilities of a belligerent which such action shifts automatically from the parent State to the shoulders of its opponents. Under such circumstances that State may not unreasonably complain that recognition is designed primarily to aid the insurrection rather than to satisfy the legitimate needs of a foreign power, and so constitutes action resembling in theory intervention in the domestic affairs of the complaining State. It may be doubted whether recognition of belligerency can generally be safeguarded so as not to influence in some degree the duration or result of the conflict. It should not be admitted, therefore, Relating to the Treaty of Washington, I, 19-46. Cf. Geo. Bemis, Hasty Recognition of Rebel Belligerency, and Our Right to Complain of It, Boston, 1865. 1 Mr. Forsyth, Secy. of State, to Mr. Gorostiza, Mexican Minister, Sept. 20, 1836, Senate Ex. Doc. 1, 24 Cong., 2 Sess., 81, Moore, Dig., I, 176. Compare message of President Monroe, March 8, 1822, Am. State Pap. For. Rel., IV, 818, Moore, Dig. I, 174. 2 Jos. H. Beale, Jr., "The Recognition of Cuban Belligerency," Harv. Law Rev., IX, 406, 407. 3 Id., 407, where Walker, Science of Int. Law, 115, is referred to as the basis of the first sentence quoted. "We must have some political organization responsible for what takes place in all the territory of the civilized world. By recognizing the belligerency of insurgents, we free the parent country from all responsibility for what takes place within the insurgent lines." Jos. H. Beale, Jr., in Harv. Law Rev., IX, 407, note 3, citing Dana's Wheaton, Dana's Note No. 15. RECOGNITION OF FACT OF INSURGENCY [§ 50 that the absence of the probability of exerting such an influence is essential to the propriety of such action. According to the trend of American opinion, the extent of the privileges accorded the insurgents should be measured closely by the needs of the foreign State which makes the concession. There must, however, be encountered in each case difficulty in ascertaining and measuring the extent of those needs. Possibly, where an insurrection involves no maritime operations, there may be slight reason for the granting of recognition by a foreign State of another continent; for it becomes difficult in such case to point to any vital interest of the latter which is likely to be adversely affected by restraint from such action. It is believed, however, that when an insurgent movement has attained such a degree of success and has perfected an organization such as to justify the conclusion that a condition of war in fact exists, the parent State ceases, by reason of its very inability to prevent the coming into being of such a state of affairs, to retain any right to influence or restrain the relationship which foreign States thereupon see fit to establish with the insurgents as belligerents. It thus appears to be the nature and extent of the insurrectionary achievement, rather than any other consideration, which offers in the particular case the fairest test of the propriety of recognition. j § 50. Acts Falling Short of Recognition of Belligerency. Insurgency. In case of an insurrection, a foreign State may, without recognizing the insurgents as belligerents, formally acknowledge that a condition of political revolt exists, and thus recognize the fact of insurgency. The United States has not infrequently pursued 1 "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 of 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." Chief Justice Fuller, in the opinion of the Court in The Three Friends, 166 U. S. 1, 63–64. See, in this connection, George G. Wilson, Insurgency, Lectures, Naval War College, 1900; same author, Int. Law, 1910, § 18; same author, "Insurgency and International Maritime Law", Am. J., I, 46; Moore, Dig., I, 242-243. Concerning the acts of unrecognized insurgents in relation to the establishment of blockades, cf. Blockade, Acts of Unrecognized Insurgents, infra, § 826. Concerning the treatment of unrecognized insurgents as pirates, see Piracy, infra, § 233. such a course, thereby announcing its attitude to the courts and obliging them to respect it. The pronouncements of President Cleveland in 1896, with respect to the Cuban insurrection, are illustrative.2 Recognition of a condition of insurgency in a foreign country is merely a reckoning with a state of facts. It confers no special rights on the insurgents; it manifests no design to aid them; it affords no ground of complaint to the parent State; it imposes on the foreign State none of the burdens of a neutral.3 Such action indicates, however, that the outside State is conscious of the existence of conditions sufficing to place it on its guard lest it fail to meet those special requirements of international law constraining a State to endeavor to prevent the use of its domain as a base of hostile operations against the government of a country with which it is at peace. That task is likely to be burdensome to a State whose territory is contiguous or in close proximity to the domain of a country in which the insurrection occurs. Nevertheless, the bare recognition of insurgency does not itself create the burden or affect its weight.5 1 "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 act in question is applicable." The Three Friends, 166 U. S. 1, 65–66. 2 See, for example, President Cleveland, Annual Message, Dec. 2, 1895, For. Rel. 1895, I, XXXII, Moore, Dig., I, 198; President Cleveland, Annual Message, Dec. 7, 1896, For. Rel. 1896, XXIX, Moore, Dig., I, 198; also President McKinley, Annual Message, Dec. 6, 1897, For. Rel. 1897, XVI, Moore, Dig., I, 198. Also documents in Moore, Dig., I, 193-197, with respect to the attitude of the United States during the insurrection in Cuba, 18681878. President Taft, Annual Message, Dec. 7, 1911, with respect to the existing armed conflict in Mexico, For. Rel. 1911, XI-XVI; President Taft, Annual Message, Dec. 3, 1912, For. Rel. 1912, XIV; President Wilson, address to the Congress concerning Mexico, Aug. 27, 1913. 3 In this connection I am constrained to call to your attention the obvious fact that since there is now no recognized state of belligerency in Mexico the rules and laws governing warfare and the conduct of neutrals are not involved." Mr. Wilson, Acting Secy. of State, to the Mexican Ambassador at Washington, March 8, 1912, For. Rel. 1912, 740, 741. See, for example, proclamation of President Van Buren Jan. 5, 1838, with respect to the existing insurrection in Canada, Brit. and For. State Pap., XXXVIII, 1074, quoted by Joseph H. Beale, Jr., in Harv. Law Rev., IX, 410. 5 See, in this connection, joint resolution of the Congress, approved March 14, 1912, providing that whenever the President should find that in any American country conditions of domestic violence existed which were promoted by the use of arms or munitions of war procured from the United States and should make proclamation thereof, it should be unlawful to export, except under such limitations and exceptions as the President should prescribe, any arms or munitions of war from any place in the United States to such country until otherwise ordered by the President or by Congress. For. Rel. 1912, 745. THE RIGHT TO CONTINUE EXISTENCE 3 [§ 51 THE RIGHT TO CONTINUE EXISTENCE § 51. The Same. The continuance of the right of a State to membership for all purposes in the family of nations may be said to depend in a strict sense upon the effect of its conduct upon the international society. The welfare of that society may not require the maintenance of a particular State; its very extinction as such may be for the general good. When the acts of a State have caused the family of nations, or those members of it which unite to express the will of all, to reach such a conclusion, it forfeits the right to retain its place therein or to continue existence as a full-fledged member thereof. Various considerations may be productive of this result. These may be commonly assigned to the failure of a State either through incompetency or political aggressiveness, to respond generally to its primary obligations to the outside world. When the injury to the international society is attributable to incompetency, the delinquent State is likely to forfeit its position of independence and find itself compelled to accept the protection of a stronger neighbor, or to permit the creation of one or more new States out of portions of its territory within which it was incapable of administering justice. Such are the natural consequences of chronic delinquency, and may be expected to follow it automatically. When the political designs of a State cause it not only to marshal its forces for purposes of external aggression, but also to employ them for such an end whenever favorable opportunity arises, it proves itself to be a menace to the general peace, and so justifies the united demand of enlightened countries that it be shorn of power and deprived of opportunity of abusing the customary privileges of statehoood. While the conduct of a State may be regarded as so detrimental to the welfare of the international society that the latter may decree the extinction of it, a simpler procedure is, however, likely to prevail. In practice, a State whose very life has proven a detriment to the common weal, either loses its position of independence and is thus demoted in rank, or is compelled to give up 1 See, in this connection, Westlake, 2 ed., I, 321-324. 2 The incapacity of a State to exercise its supremacy over the outlying districts of its territory, especially if it is manifested in a failure to administer justice, tends to arouse special interest on the part of outside States in the endeavors of the inhabitants of such areas to revolt and establish an independent State therein. |