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RECOGNITION OF ACTUAL HOSTILITIES.

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recognized already in the case of decrees declaring insurgents outlaws, which have no effect in determining the relations of foreign states to the insurgents."

The position of Secretary Fish in the case of the insurgents against Haiti in 1869 was as follows:

"Regarding them simply as armed cruisers of insurgents not yet acknowledged by this Government to have attained belligerent rights, it is competent to the United States to deny and resist the exercise by those vessels or any other agents of the rebellion of the privileges which attend maritime war in respect to our citizens or their property entitled to our protection. We may or may not, at our option, as justice or policy may require, treat them as pirates in the absolute and unqualified sense; or we may, as the circumstances of any actual case shall suggest, waive the extreme right and recognize, where facts warrant it, an actual intent on the part of the individual offenders, not to depredate in a criminal sense and for private gain, but to capture and destroy jure belli. It is sufficient for the present purpose that the United States will not admit any commission or authority proceeding from the rebels as a justification or excuse for injury to persons or property entitled to the protection of this Government. They will not tolerate the search or stopping by cruisers in the rebel service of vessels of the United States, nor any other act which is only privileged by recognized belligerency."1

He also maintains the right to destroy rebel vessels making aggressions upon persons or property entitled to the protection of the United States.

The position of Admiral Benham in the Brazilian revolt of 1893-94 seems to be one justified by principles and reason: "that any movement on the part of the American merchant vessels during the continuance of actual hostile operations was at their own risk; but any attempt upon the part of the insurgents to prevent legitimate movements of our merchant vessels at other times was not to be permitted, and that all possible protection

'Wharton Dig., sec. 381.

was to be afforded such movements by the naval force of the United States assembled at Rio under his command."

The action of insurgents till the recognition of belligerency being domestic action, the foreign vessel is responsible only so far as it comes within the range of "actual hostile operations."

In the Haitien revolt of 1902 the United States took the ground that the importance of the world's commercial relations was too great to permit interference with such relations by parties engaged in domestic struggles in which one or both the contestants have no responsible status. Other important states concurred in the action taken by the United States. This stronger policy is not only conducive to the protection of the world's commerce, but also to the promotion of peace by discouraging uprisings which are entered upon because of the personal ambitions of party leaders rather than because of desires. to reform and benefit the state.

During this Haitien insurrection of 1902 the commander of the U. S. S. Machias had under his protection the foreign commerce in that region. He informed the commander of the insurgent gunboat of his position on August 10, 1902, 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."

United States Minister Powell telegraphed," Gonaives Government not recognized. Killick can not declare blockade of port; inform him. Give your protection to any American, Cuban, or foreign vessel that desires to enter cape." While, of course, the naval officer was in no way bound by this telegram of the minister, as the commander is responsible only to his own Department

HAITIEN INSURRECTION, 1902.

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for his action, yet this telegram would be taken as evidence of the attitude of the Department of State.

Later the commander of the U. S. S. Machias informed Killick, the commander of the insurgent gunboat, that "until belligerent rights are accorded you, no right to visit or search any foreign vessel is permitted." With this position the representatives of other states agreed.

The German gunboat Panther took a positive position in demanding, on September 6, 1902, the surrender of the insurrectionist gunboat Créte-à-Pierrot, which had, on September 2, taken possession of the munitions of war that were on the way to the provisional government of Haiti on the German merchant steamer Markomannia. The insurgent gunboat was set on fire before the surrender was made. The Germans, seeing this, opened fire upon the Crête-à-Pierrot and completed its destruction. This action further manifests the disposition of the states having important commercial interests not to submit to interference with commerce by insurgents who have not acquired belligerent status.

The drift of practice on the part of the United States has been toward a considerable leniency in dealing with those in revolt against constituted authorities. "It may be said that there has been a growing tendency to admit a hostile status short of belligerency of which it may be expedient for a state to take cognizance at a time when it is not expedient to recognize belligerency, that the actions of the party hostile to the parent state are not those of outlaws, and that the practice of the United States is to admit this hostile status as one affecting the operation of its domestic laws and changing the relations of its servants toward the parties to the conflict."

General attitude toward insurgency.-It may now be said that insurgency is often regarded as a fact which in a manner varying according to circumstances is accepted in 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 1894, and in Chile in 1891. It is a status of potential belligerency which a state, for the purpose of domestic order, is obliged to cognize. The admission of insurgency does not place the foreign state under new internal 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 insurgency is the admission of an easily discovered 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." 1

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The fact that insurgents have not enforced, against other than the vessels of the state to which they were opposed, the blockade which they had proclaimed is seen in the cases which have arisen.

The right of insurgents to make captures of vessels not belonging to the parent state has not been recognized.

The cases of Chile and Brazil are not sufficiently in harmony to warrant a precedent of recognition of insurgent blockade.

The possible putting into operation of domestic neutrality laws has no effect in determining action in foreign waters.

The acknowledgment by a neutral of full right to blockade on the part of insurgents not yet recognized as belligerents is a questionable act as regards the parent state.

Blockade, from its consequences, should be reserved as far as possible within the laws of war for the status of full belligerency.

1 Wilson, Insurgency, p. 16, Lectures, Naval War College, 1900.

INSTITUTE OF INTERNATIONAL LAW.

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The status of insurgents is too indefinite to permit them to freely use against neutrals the extreme measure of blockade, and the consequent rights of visit, search, etc.

Insurgents, unless they have obtained a status entitling them to be recognized as belligerents, would not have any prize courts acting upon sufficient authority to warrant third parties in allowing to them the right to inflict the penalties of violation of blockade.

They have been permitted to seize, after making compensation, articles contraband on foreign vessels which they may approach. This act, open to most serious question, does not, however, imply a right to seize and confiscate ship and cargo for violation of blockade.

The position enunciated by Snow' is correct: "As to the position of insurgents in general, it is agreed that they have no belligerent rights. Their war vessels are not received in foreign ports, they can not establish a blockade which third powers will respect, and they must not interfere directly with the commerce of third states."

Conclusions of the Institute of International Law.Many of the above and other considerations were discussed by the Institute of International Law in its session of September, 1901, when it adopted the following resolutions:

"Art. 5, Sec. 1. Une tierce puissance n'est pas tenue de reconnaître aux insurgés la qualité de belligérants, par cela seul qu'elle leur est attribuée par le gouvernement du pays ou la guerre civile a éclaté.

"Sc. 2. Tant qu'elle n'aura pas reconnu elle-même la bolligérance, elle n'est pas tenue de respecter les blocus établis pas les insurgés sur les portions du littoral occupées par le gouvernement régulier.'

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"Art. 3. L'obligation du dédommagement disparait, lorsque les personnes lésées sont elles-mêmes cause de l'événement qui a entraîné le dommage. Il n'existe pas, notamment, d'obligation d'indemniser ceux qui sont rentrés dans le pays en contrevenant a un arrêté d'expulsion, ni ceux qui se rendent dans un pays ou veulent s'y livrer au commerce ou à l'industrie, alors qu'ils Int. Law, 2d ed., p. 12. 2 Quartrieme Commission.

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