54

powers, the United States would be fully justified even in advancing a step beyond the Drago Doctrine and declaring formally to the world that it could not see with indifference any attempt at the forcible collection of private claims of a pecuniary nature on the Western Continent. The Monroe Doctrine, at least in its present form, forbids the further acquisition, colonization, or permanent occupation of American territory by any European power, and it is believed that such a declaration would not only be in harmony with the spirit of that doctrine but that it would lend strength to the principle of non-inter

vention.

In view, however, of the fact that some of these claims may be wellfounded and that the judicial tribunals in certain portions of Central America are notoriously inadequate for the impartial and effective administration of justice, and because of the frequency of revolutions due mainly to fraudulent elections, it might be well to couple this declaration with another, insisting that all such claims be submitted to fair and impartial arbitral tribunals or mixed commissions composed of representatives from both the creditor and debtor nations.55

The United States has no desire to become a "debt collecting agency" for European creditors or to establish a protectorate over the states of Latin America. For these reasons our government should avoid, if possible, the responsibility of an ex parte decision regarding the validity of these claims, although the assumption of such a burden would be preferable to their forcible collection by European powers. Our insistence upon arbitration in the case of the famous boundary dispute between Great Britain and Venezuela in 1895, points the way toward what is at once the easiest and most equitable settlement of such disputes.

AMOS S. HERSHEY.

54 The wisdom of such a course is greatly strengthened by the decision of the Hague tribunal rendered on February 22, 1904, which granted the contention of the allies that they were entitled to preferential treatment in consequence of their coercion of Venezuela. For a recent thoroughgoing criticism of this decision, see a long article by M. Mallarmé in the Revue Générale D. I. P. for 1906, pp. 423–500.

55 Professor F. de Martens suggests the Hague tribunal as a suitable court for the arbitration of these claims, but in view of its decision in the Venezuela case, it would perhaps be better to retain the present system of mixed commissions.

INSURGENCY AND INTERNATIONAL MARITIME LAW

War in the full sense, according to international law, can exist only by declaration or recognition of belligerency by a state. War in the material sense of an actual contest of armed forces may and does often exist without such declaration or recognition. However desirous a party using armed force within a state and in opposition to it may be to be regarded as a belligerent, such a party has not the legal capacity to raise itself to a belligerent status. This status can be gained only by action of the parent state or of a foreign state. An armed contest may, nevertheless, exist and of this fact others must often, take notice.

Between the struggle of individual with individual, and of state with state, there is a form of struggle varying according to the circumstances, but usually an armed struggle between organized groups or parties within a state for public political ends which has received the name of insurrection.

The Constitution of the United States distinctly provides that Congress shall have power

to provide for the calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel invasions. (Art. 1, § 8.)

The government also recognizes that insurrections may exist in foreign states as in Article 308 of the Regulations for the Government of the Navy of 1905:

The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions. the granting of asylum; but even in the waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum.

The United States and other governments have admitted that insurrections were actually in existence. The United States in its relations to Cuba has frequently been called upon to consider the nature of

insurrectionary conflicts. President Grant, in his first message of December 6, 1869, speaking of the struggle in Cuba, says:

But the contest has at no time assumed the conditions which amount to a war in the sense of international law, or which show the existence of a de facto political organization of the insurgents sufficient to justify a recognition of belligerency.

It is generally held that an insurrection does not "amount to a war in the sense of international law," but, as President Grant maintains, each

nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive or to independent nations at war with each other.

The long struggle in Cuba, from 1868 to 1878, seems to have had, even from a foreign point of view, many of the characteristics of war. Such formal public documents, as Presidents' Messages, though addressed to Congress rather than to foreign powers, mention "the pending struggle," "bloodshed in Cuba," "disturbed condition of the island of Cuba," "insurrection," "contest," "deplorable strife in Cuba,” "contending forces," "ruinous conflict," and other terms which indicate that the government did admit that the status of the island of Cuba was not that of peace. The Message of President Hayes, of December 2, 1878, stated that

the Spanish government has officially announced the termination of the insurrection in Cuba and the restoration of peace throughout that island.

President Grant's Message, of December 7, 1875, often quoted since that time, discusses quite fully the reasons for not recognizing the belligerency of the "body of people" attempting to free themselves from Spain.

While conscious that the insurrection in Cuba has shown a strength and endurance which make it at least doubtful whether it be in the power of Spain to subdue it, it seems unquestionable that no such civil organization exists which may be recognized as an independent government capable of performing its international obligations and entitled to be treated as one of the powers of the earth.

In a former message to Congress I had occasion to consider this question, and reached the conclusion that the conflict in Cuba, dreadful and devastating as were its incidents, did not rise to the fearful dignity of war. Regarding it now, after this lapse of time, I am unable to see that

any notable success or any marked or real advance on the part of the insurgents has essentially changed the character of the contest. It has acquired greater age, but not greater or more formidable proportions.

Applying to the existing condition of affairs in Cuba the tests recognized by publicists and writers on international law, and which have been observed by nations of dignity, honesty, and power when free from sensitive, or selfish and unworthy motives, I fail to find in the insurrection the existence of such a substantial political organization, real, palpable, and manifest to the world, having the forms and capable of the ordinary functions of government toward its own people and to other states, with courts for the administration of justice, with local habitation, possessing such organization of force, such material, such occupation of territory, as to take the contest out of the category of a mere rebellious insurrection or occasional skirmishes and place it on the terrible footing of war, which a recognition of belligerency would aim to elevate it.

to

Other Presidents of the United States have admitted the status of insurrection and commented upon its consequences. President Cleveland, in his Message of December 2, 1895, mentioned certain possible conditions which may exist and certain obligations which may result and yet there may not be war, but only insurrection. He said:

Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations on the coast. Besides deranging the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arousing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this government to enforce obedience to our neutrality laws and to prevent the territory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty.

President McKinley followed closely the opinions of the Messages of President Grant. In his Message of December 6, 1897, President McKinley said:

Of the untried measures there remain only: Recognition of the insurgents as belligerents; recognition of the independence of Cuba; neutral intervention to end the war by imposing a rational compromise between the contestants, and intervention in favor of one or the other party.

The courts of the United States would necessarily recognize such domestic insurrections as are mentioned in Art. I, §8, of the Constitution. The courts have also recognized the existence of insurrection

in foreign states. In the case of The Three Friends the Supreme Court, referring to such clauses of Presidential Messages as are quoted above, said:

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 neutrality act in question is applicable.

It is evident that a status between peace and belligerency is recognized by the various departments of the government of the United States. This is not the status of non-hostile redress which has long been mentioned in books on international law, but a status which while not war may have certain consequences and characteristics of

war.

As the Supreme Court of the United States declared in the case mentioned above:

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.

The English courts have taken a similar position, maintaining that certain facts of Parliament become effective since

their lordships find these propositions established beyond all doubtthere was an insurrection in the island of Cuba; there were insurgents who had formed themselves into a body of people acting together, undertaking and conducting hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba. (Salvador, L. R. 3, P. C. 218.)

The distinction between insurgency and belligerency, or as was well said in the opinion of Chief Justice Fuller in the case of The Three Friends, between "war in a material sense" and "war in a legal sense," has received far more recognition in international practice than in international law. It would seem that this status of insurgency recognized by the courts and by the other departments of government should not be ignored by students of international law.