RECOGNITION OF BELLIGERENCY.

17. (a) Recognition of the belligerency of a revolting community by a foreign state is an act of the political department of the government of the recognizing state, and if premature, or without reasonable grounds, may be regarded by the parent state as cause for war. Such recognition gives to the recognized revolting community a legal war status as regards the recognizing state.

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

(a) Recognition of belligerency of a revolting community by a foreign state is not obligatory, but when once granted gives rise to new legal relations, which cannot justly be disclaimed during the continuance of the conditions under which they were assumed. As the relations may affect other states, particularly the parent state, recognition, once granted, is generally held to be irrevocable.21

As recognition brings such consequences, it is a matter wholly within the competence of the political department of the government, and by the action of this department all other departments are bound.22

The method by which recognition is accorded to a revolting community by a foreign state is usually by the issue of a declaration of neutrality, though some states make known their position by other formal action.23

21 1 Moore, International Law Digest, pp. 164-205, §§ 59-71.

22 "But it belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed." The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897; U. S. v. One Hundred Barrels of Cement, 27 Fed. Cas. 292.

23 Great Britain recognized the belligerency of the Confederate States of America in the proclamation 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

Recognition of the belligerency of a revolting community by a foreign state before that community has shown its ability to resist in an orderly manner the forces of the parent state, or when the relations of the recognizing state are not to any considerable extent disturbed, is usually regarded by the parent state as premature, and as an evidence of an unfriendly disposition on the part of the recognizing state.

Recognition releases the parent state from all responsibility to the recognizing state for acts of recognized belligerents. The recognizing state may hold the belligerent community responsible for its acts, if the community establishes its independence. If the belligerent community fails to establish itself, the recognizing state can hold no one responsible for acts of the revolting community subsequent to the date of recognition of belligerency. After recognition of belligerency the revolting community has as regards the recognizing state the same war status as the parent state. Such recognition does not, however, affect their relations to other states.

The note of Dana in his edition of Wheaton of 1866 contains a brief statement of the principles which since that time have in the main been followed:

"The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires, and can alone justify, this step 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. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights, which the parent government does not concede, a recognition by a forUnited 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 relation thereto, as they will answer to the contrary at their peril."

eign 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. But the situation of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition.

"It is certain that the state of things between the parent state and insurgents must amount in fact to a war, in the sense of international law; that is, powers and rights of war must be in actual exercise. Otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests are the existence of a de facto political organization of the insurgents, sufficient in character, population, and resources, to constitute it, if left to itself, a state among the nations reasonably capable of discharging the duties of a state; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of. things is undoubtedly war; and it may be war before they are all ripened into activity."

24

24 "The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires and can alone justify this step 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. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights, which the parent government does not concede, 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. But the

(b) 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. The British proclamation of neutrality of May 14, 1861, was justified by President Lincoln's proclamation of a blockade on April 19, 1861, which announced that action against vessels permissible only in time of war would be taken by the United States.25

INSURGENCY.

18. The status of insurgency is sometimes admitted in cases where there is within a state an organized body of men pursuing public ends by force of arms, and temporarily beyond the control of the civil authority.

The Constitution of the United States provides for the calling forth of the militia to suppress insurrections.26 Messages of the Presidents have frequently mentioned that insurrections existed in foreign states.27 Decisions of the courts, both in

situation of a foreign state with reference to the contest, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition." Wheaton, International Law (Dana's Ed.) p. 34, note 15. This was followed in President Grant's message of December 7, 1875, and by President McKinley December 6, 1897.

25 "Now, therefore, I, Abraham Lincoln, President of the United States, have deemed it advisible to set on foot a blockade of the ports within the states aforesaid in pursuance of the laws of the United States and of the law of nations in such case provided. For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore. with a view to violate such blockade, a vessel shall approach, or shall attempt to leave, any of the said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and the date of such warning; and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port, for such proceedings against her and her cargo as prize as may be deemed advisable."

26 Article 1, § 8.

27 See particularly the Presidents' messages from 1868 to 1878 and from 1895 to 1898.

the United States and foreign states, have admitted the existence of insurgency.28 In 1896 the Supreme Court of the United States declared, in the case of The Three Friends: "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." In 1895 President Cleveland issued a proclamation practically putting into operation the neutrality laws, though not declaring neutrality, as no belligerency had been recognized.29 Frequent attempts have been made by the parent state to put those rebelling against its authority beyond the pale of law. Such claims have been uniformly resisted, though the right of revolution has been conceded.30

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 au

28 The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897 ; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456; The Salvador, L. R. 3 P. C. 218.

29 Proclamation of June 12, 1895, 9 Richardson, Messages and Papers of the Presidents, 591.

30 Foreign Relations U. S., 1885, p. 212.