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International Law Situations.

WITH SOLUTIONS AND NOTES.

SITUATION I.

MERCHANT VESSELS AND INSURGENTS.

There is an insurrection in State X and the "free party" is attempting to overthrow by force the established government of State X. The "free party" has not been recognized as belligerent.

(a) An armed vessel of the "free party" is about to visit and search a United States merchant vessel on the high sea when a United States cruiser comes near. The master of the merchant vessel asks the United States commander for protection from visit and search.

(b) During the same insurrection a merchant vessel of the United States is about to enter a port which the insurgents have declared blockaded. The merchant vessel is seized within 3 miles of the coast of the insurgents at the line of blockade and while being taken into an insurgent port is met within 3 miles of the coast of State X by a United States cruiser. The master of the merchant vessel requests the commander of the United States cruiser to intervene to procure the release of his vessel.

(c) A merchant vessel of the United States is anchored in a harbor of State X and has on board some war material. The "free party" is about to take this war material by force. The master of the merchant vessel appeals to the commander of the United States cruiser for protection.

What action should the commander take in each case?

SOLUTION.

(a) The commander of the cruiser of the United States should if possible afford the merchant vessel the necessary protection from visit and search.

(b) If the only reason for the seizure of the merchant vessel is that it was about to enter a port which the insurgents have declared blockaded, the commander should grant the master's request, though the commander might require that the merchant vessel proceed to some other port.

(c) The commander of the cruiser of the United States should inform the master of the merchant vessel that, while he would endeavor to prevent wanton seizure of his cargo, he would not interfere with proper action which the insurgents might take to prevent the war material from reaching their opponents.

NOTES.

General. The Government of the United States has been forced to give attention to the problems arising from what has come to be termed a state of insurrection. The many uprisings in the States of Central and South America and the recent disturbed conditions in Mexico and China in 1911 and 1912 afford examples of the complications which may arise.

In time of insurrection there may be ample reason why a state of belligerency should not be recognized. The recognition of belligerency would place the party recognized and the established State upon the same plane as regards the rights of war. This might be of great advantage as regards the party desiring to overthrow or to break away from the established State. Such recognition might be a decided disadvantage to the established State. As the established State has the power to indicate its will in regard to the recognition of the belligerency of its revolting subjects by itself acknowledging their belligerency, it is natural that foreign States should refrain from such recognition unless there be special reason demanding action. At the same time interests of a foreign State and the rights of its subjects may be involved to such a degree as to make necessary some cognizance of the disturbed conditions. As many existing States have come into being through revolutions which have overthrown previously existing Governments, it can not be anticipated that such movements will be disregarded or

will be entirely disapproved. The United States Supreme Court has therefore pointed out that in order that injustice may not be done to any party, there may be a necessity which will compel a State to acknowledge that there exists a war de facto while not recognizing any state of war de jure. (The Three Friends, 166 U S. Sup. Ct. Repts., p. 1.) If, therefore, there exist in fact hostilities of the nature of war, it will be neces sary for foreign States to accommodate their action to such a condition. If the established State is dissatisfied with the conduct of foreign States, there is always in its competence the power to recognize the revolting party as belligerent. The revolting party naturally desires the exercise of many war powers. The established State often claims that every act of the revolting party is an act of outlawry and should be punished by the State injured. If the party in revolt is successful, its acts may, however, be regarded as legal from the beginning.

From the recognition of the facts which accompany revolutionary movements, and in an attempt to adapt State action to the facts, there has grown up since the latter years of the nineteenth century a somewhat wellestablished body of precedent and practice, which has been called the law of insurgency. The law upon all phases of insurrectionary conflict is not clear, and many new situations have arisen for which precedent does not exist. There has been an attempt, however, to make clear, so far as possible, the rights of all parties during the period when an armed and organized force is struggling for political ends and before belligerency has been recognized.

Why important for United States.-History shows that a large number of insurrectionary movements have taken place on the Western Hemisphere, in the countries to the south of the United States. Geographical proximity has necessarily brought the United States into contact with these movements. American precedents are therefore most numerous. The events of the twentieth century seem to indicate that insurrectionary movements.

are not at an end and that new problems may continually arise.

Development of acknowledgment in United States.It is evident from such cases that the parent State may prefer to admit the existence of an insurrection while not acknowledging the existence of belligerency. Policy may also influence a foreign State to prefer to admit the existence of an insurrection rather than to recognize belligerency. President McKinley, in his message of December 6, 1897, thus summarizes the matter as regards Cuba:

Turning to the practical aspects of a recognition of belligerency and reviewing its inconveniences and positive dangers, still further pertinent considerations appear. In the code of nations there is no such thing as a naked recognition of belligerency unaccompanied by the assumption of international neutrality. Such recognition without more will not confer upon either party to a domestic conflict a status not therefore actually possessed or affect the relation of either party to other States. The act of recognition usually takes the form of a solemn proclamation of neutrality which recites the de facto condition of belligerency as its motive. It announces a domestic law of neutrality in the declaring State. It assumes the international obligations of a neutral in the presence of a public state of war. It warns all the citizens and others within the jurisdiction of the proclaimant that they violate those rigorous obligations at their own peril and can not expect to be shielded from the consequences. The rights of visit and search on the seas and seizure of vessels and cargoes and contraband of war and good prize under admiralty law must under international law be admitted as a legitimate consequence of a proclamation of belligerency. While according to the equal belligerent rights defined by public law to each party in our ports disfavors would be imposed on both, which while nominally equal would weigh heavily in behalf of Spain herself. Possessing a navy and controlling the ports of Cuba her maritime rights could be asserted not only for the military investment of the island but up to the margin of our own territorial waters, and a condition of things would exist for which the Cubans within their own domain could not hope to create a parallel; while its creation through aid or sympathy from within our domain would be even more impossible than now, with the additional obligations of international neutrality we would perforce assume.

Or, as summarized by Prof. John Bassett Moore at that time:

Moreover, the Cuban insurgents can at the present time purchase arms and munitions of war; they and their friends and

sympathizers can go and come, unarmed and unorganized, to take part in the conflict; they can sell their securities to anyone who will buy them. More than this they could not do, if their belligerency were recognized, unless they had ships on the ocean. They could neither employ persons in the United States to serve in their forces, nor fit out and arm vessels in our ports, nor set on foot hostile expeditions from our territory. On the other hand, Spain would be immediately invested by international law, as well as by the treaty of 1795, with the international rights of belligerency, which she has so far not claimed, including the right of visitation and search on the high seas, and the capture and condemnation of our vessels for violations of neutrality. It would enable Spain practically to put an end to the transportation of munitions of war for the insurgents. It would place under Spanish supervision all that vast commerce which passes through the waters adjacent to Cuba. (21 Forum, 297.)

In other words, a foreign State which recognizes the belligerency of a party to a domestic conflict thereby changes the status of the parties concerned, giving to the parties in the conflict a war status with its obligations and duties and assuming for itself the rights and obligations of neutrality. Prior to such recognition, if the parent State does not recognize the existence of war, the foreign State is largely judge of its relations. to and conduct toward the parties to the domestic conflict. There may be political, commercial, geographical, or other conditions which make it inexpedient for a foreign State to recognize an insurgent party as a belligerent.

It is evident that there may be many reasons why a foreign State would be disinclined to recognize insurgents as belligerents, while at the same time the foreign States might be obliged to take cognizance of the existence of the insurrection. It is the fact that this status of insurrection brings new obligations to States and in some cases advantages.

There may also be reasons which make the parent State reluctant to recognize its insurgent subjects as belligerents, thus giving them full war status at home and abroad. Sometimes the parent State has endeavored before any recognition of belligerency to prescribe the attitude of foreign States toward its rebellious subjects. This has been a common procedure on the part of the

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