International Law Part 5

Like Ja.n.u.s of old, it has two faces. On that which looks towards the native tribes all the lineaments and attributes of sovereignty are majestically outlined. On that which is turned towards the United Kingdom is written subordination and submission."[72] The acts of these companies become the basis of subsequent negotiations among the various European states, and the companies have a very important influence in molding the character of African development.

-- 26. Individuals

Without entering into discussion of "the doctrine of the separability of the individual from the state," it is safe to affirm that individuals have a certain degree of competence under exceptional circ.u.mstances, and may come under the cognizance of international law. By the well-established dictum of international law a pirate may be captured by any vessel, whatever its nationality. General admiralty and maritime procedure against a person admit the legal status of an individual from the point of view of international law. The extension of trade and commerce has made this necessary. This is particularly true in time of war, when individuals wholly without state authorization, or even in contravention of state regulations, commit acts putting them within the jurisdiction held to be covered by international law, as in the case of persons brought before Prize Courts. The principles of private international law cover a wide range of cases directly touching individuals.

-- 27. Insurgents

(_a_) =Definition.= Insurgents are organized bodies of men who, for public political purposes, are in a state of armed hostility to an established government.

(_b_) =Effect of Admission of Insurgency.= The practice of tacitly admitting =insurgent rights= has become common when the hostilities have a.s.sumed such proportions as to jeopardize the sovereignty of the parent state over the rebelling community, or seriously to interfere with customary foreign intercourse.[73] The general effect of the admission is shown as follows:[74]

(1) Insurgent rights cannot be claimed by those bodies seeking other than political ends.[75]

(2) Insurgent acts are not piratical, as they imply the pursuit of "public as contrasted with private ends."[76]

(3) The admission of insurgent rights does not carry the rights of a belligerent, nor admit official recognition of insurgent body.[77]

(4) The admission of insurgent rights does not relieve the parent state of its responsibilities for acts committed within its jurisdiction.[78]

(5) When insurgents act in a hostile manner toward foreign states, they may be turned over to the parent state, or may be punished by the foreign state.[79]

(6) A foreign state must in general refrain from interference in the hostilities between parent state and insurgents, _i.e._ cannot extend hospitality of its ports to insurgents, extradite insurgents, etc.[80]

(7) When insurgency exists, the armed forces of the insurgents must observe and are ent.i.tled to the advantages of the laws of war in their relations to the parent state.[81]

+Note.+ During the struggles between the parties in the United States of Colombia in 1885, the President of Colombia decreed: (1) That certain Carribean ports held by the opposing party should be regarded as closed to foreign commerce, and trade with these ports would be considered illicit and contraband, and that vessels, crews, etc., involved in such trade would be liable to the penalties of Colombian laws. (2) 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.[82]

The United States refused to recognize the validity of the first decree unless Colombia should support it by an effective blockading force.[83] (For similar position on part of Great Britain, see Parl.

Deb. H. C., June 27, 1861.)

The United States also refused to recognize that the vessels of the insurgents were beyond the pale of international law or in any sense piratical.

The United States did not deny that closure might be a domestic measure similar to blockade in accord with munic.i.p.al law, but emphatically maintained that effective blockade only could close a port in time of such insurrection.

It was further maintained that "The denial by this [U.S.] Government of the Colombian proposition did not, however, imply the admission of a belligerent status on the part of the insurgents." Message Pres.

Cleveland, Dec. 8, 1885.[84]

The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly mention a status of insurgency as existing in Cuba.

During the rebellions in Chili in 1891 and in Brazil in 1894, the insurgents, while not recognized as belligerents by third powers, were nevertheless given freedom of action by these powers.

-- 28. Belligerents

(_a_) =Definition.= A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent.

(_b_) The general =conditions prior to recognition= are: (1) that the end which the community in revolt seeks shall be political, _i.e._ a mere mob or a party of marauders could have no belligerent rights, (2) the hostilities must be of the character of war and must be carried on in accord with the laws of war, (3) the proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible, (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization.

As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of belligerency exist, there may be great divergency of opinion in cases of recognition,[85]

but the question of belligerency is a question of fact and never a question of theory.

(_c_) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a responsible organization may not be recognized without offense to the parent state except upon certain =grounds=. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection."[86] "The reason which requires and can alone justify this step [recognition of belligerency] by the government of another country, is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties.... A recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government."[87]

(_d_) =Recognition= of belligerency is naturally =an act of the executive authority=.[88]

The following is the proclamation of Queen Victoria of May 13, 1861:--

"Whereas we are happily at peace with all sovereign powers and states:

"And whereas hostilities have unhappily commenced between the Government of the United States of America and certain states styling themselves the Confederate States of America:

"And whereas we, being at peace with the Government of the United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties:

"We, therefore, have thought fit, by [and with] the advice of our privy council, to issue this our royal proclamation:

"And we do hereby strictly charge and command all our loving subjects to observe a strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf or the law of nations in relations thereto, as they will answer to the contrary at their peril."

(_e_) =Certain consequences= follow the recognition of belligerency.

(1) _If recognition is by a foreign state._

(a) From the date of recognition, the parent state is released from responsibility to the recognizing state for the acts of the belligerents.

(b) So far as the recognizing state is concerned, the parent state and the belligerent community would have the same war status, _i.e._ in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the recognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must accord the belligerent community all the privileges of a full state.

(c) The recognizing state may hold the belligerent community, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its belligerency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts of the recognized community from the date of recognition.

(d) This recognition does not necessarily affect other than the three parties, the recognizing state, the belligerent community, and the parent state.

(2) _If recognition_ of belligerency is by the _parent state_.

(a) From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents.

(b) So far as the prosecution of hostilities is concerned, the community, recognized as belligerent by the parent state, is ent.i.tled to full war status.

(c) From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, _i.e._ contracts made with a belligerent, or responsibilities a.s.sumed by a belligerent, do not fall upon the parent state, when victorious in the contest.

(d) Recognition of belligerency by the parent state gives the revolting community a war status as regards all states.

In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties directly concerned, when recognition is by a single foreign state. In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality and demand reparation for any breach of the same, may maintain blockade, prize courts, and take other measures allowable in war.

The condition of insurgency is usually tacitly admitted for a period prior to the recognition of belligerency, and the vessels of the insurgents are not regarded as pirates either in practice or theory.

They have not the _animus furandi_. The admission of insurgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status.