as an insurrection affects only the internal affairs of a state is a matter only of domestic concern. The measures taken by the Government are within its discretion. It may treat the rebels as outlaws (at least until they meet with some success) and subject them to its criminal law. Even if a state of insurrection or belligerency is recognized, the parent state, after suppressing the revolt, is entitled to subject the rebels to its laws.

It has been stated by many writers that even within its own limits a parent state should at some point recognize a state of insurgency, so that individuals engaged in actual hostilities might not be considered as murderers when they kill as soldiers. If the right of political revolt is recognized, humanitarian principles demand that those who fight in an army seeking to change a government or to create a nation should have the protection accorded prisoners of war. This protection should arise when an uprising has reached a point where it has some government and holds some territory.

In the Mexican Revolt of 1929 the United States instructed its Ambassador to Mexico that Americans serving with the insurrectionists should be treated according to the laws of war, though expressly stating that this advice did not constitute, even by implication, a recognition of belligerency.11

Provisions governing the status of persons engaged in internal armed conflict are contained in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, as follows:

ARTICLE 3 (Conflicts not of an International
Character)

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,

...

11. The American consul at Ciudad Juarez advised the Department yesterday that he had been informed by the rebel authorities that American aviators were being accepted for service in the rebel army. You are instructed at your early convenience and in the exercise of your discretion... to point out to the Mexican Government that the Government of the United States will expect that such Americans when taken prisoners will not be regarded by the Government of Mexico as guilty of treason but, on the contrary, that any American fighting in the rebel army will if taken prisoner, be treated by the regular Government forces in accordance with the laws of war as recognized between nations, and not in accordance with domestic law where the latter differs from such laws of war. [Paraphrase] Secretary Stimson to Ambassador Morrow Wo. 233, April 4, 1929, MS Department of State, file 812.00 Sonora /513; cited in Hackworth Digest of International Law, Vol. 1, p. 324.

shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded, sick and shipwrecked shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. While the Convention does not make the applicability of Article 3 dependent on a state of insurgency or belligerency, it seems clear that honoring this article would practically, though not legally, admit a state of insurgency. The use of the words "armed conflict" certainly contemplates more than a local uprising, when the usual criminal laws would apply. In the absence of external pressure or involvement, the character of the insurrection, and determination of whether there was "armed conflict" in the sense of Article 3 remains for the decision of the nation involved.

The legitimate government may at any time announce that it will treat the rebels according to the rules of Article 3 of the Geneva Convention. Though this may be treated as an admission of insurgency, the status of the parent state is by no means changed as it might be by a recognition of belligerency. Admission of insurrection does not constitute recognition of either a de jure or de facto government, but merely recognition of organized armed revolt against the government. Except for the humane provisions of Article 3 and perhaps the United Nations Declaration of Human Rights,12 12. cf. United Nations, Universal Declaration of Human Rights. Among these declarations are: Article 4. No one shall be held in slavery or servitude... Article 5. No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.

the rights, duties and responsibilities of the parent state remain substantially unchanged within its own borders.

Insurgents also may announce that they will follow the laws of war and observe Article 3.

EFFECT OF INSURGENCY ON FOREIGN RELATIONS

Acknowledgment by a foreign state of a condition of insurgency does not confer any additional rights on either the legitimate state or the insurgents.

It does assert a right to deal with insurgents, when necessary, regarding relations of a foreign state within territory actually held by them. On land, relatively few questions involving international law have arisen, especially where no foreign states are contiguous or where borders are well protected. The majority of questions appertaining to insurgency arise in maritime affairs where the rights of foreign states become involved. These questions involve the right of blockade, whether insurgent vessels are pirates, the closure of ports and control of contraband. These will be dealt with later.

THE STATE AND ACTS OF INSURGENTS

One question that has arisen is whether taxes, imports and other monetary levies collected by insurgents in control of territory, constitute insofar as foreigners are concerned relief from the usual taxes and fees normally imposed by the legitimate government. The general rule in this regard is that if the insurgents have sufficient control to supplant the normal agents of the government, the collection of assessments from aliens will relieve the aliens of duplicate assessment by the regular government. 13 This, however, is only true of assessments which are deemed to be to the advantage of the legitimate government if the insurrection is unsuccessful. In other words, those monetary levies which are used to do for the insurgents in control what the state would have done absent insurrection, are deemed to be for the benefit of the sovereign. For example, normal preexisting taxes and imports may be collected and used for administra13. "... in respect to certain matters of routine administration, and others pertaining to governmental management or upkeep, arrangements of a contractual character not shown to be disadvantageous to the State as such may prove to be binding upon it despite the failure of the contracting agency-the insurgent entity to retain political control. Likewise, exercise of the taxing power by insurgents in the area controlled by them is not to be regarded as unbeneficial to the State or not binding upon it, when the collectors of taxes from aliens have lost their sway, or yielded it to a titular government." International Law, Chiefly as Interpreted and Applied by the United States, 2nd Rev. Ed. C. C. Hyde, p. 979.

tion of the local government, for the regulation of a port, for police and fire protection and sanitation and health measures.

The state would not be responsible for special levies made specifically for the conduct of hostilities or solely for support of the insurrection. Likewise the state is not liable on bonds or obligations issued by the insurgents to further their cause or to pay for services related to the insurgency. It is apparent, of course, that there will be some difficulty in distinguishing the two classifications, determination being a matter of fact to be decided between the state and the alien harmed or the agents of his nation.

Responsibility of the state for damages resulting from tortious acts of the insurgents depends upon whether or not the insurrection actually became temporarily beyond the control of the state. Here again an acknowledgement or admission of a state of insurgency during the conflict becomes valuable in the settlement of claims after the conflict is over. The general rule now followed is that a sovereign is not responsible for the acts of insurgents, who have met the usual recognized standards for insurgency.1

The United States Department of State in 1911, departing from previous conflicting opinions, stated that "where an armed insurrection has gone beyond the control of the parent government, the general rule is that such government is not responsible for damages done to foreigners by the insurgents." 15 In this connection it is noted that the claimant or his state has the burden of proving that damage was due to the neglect of the parent state.

A foreign state has a right to call upon both the parent state and the insurgents to respect and protect the rights of its nationals. It may protest any improper treatment of its nationals. Such actions are not equal to recognition of belligerency, but may, particularly in regard to communications to the insurgents, be considered an acknowledgement of a condition of insurgency, and of "de facto" control of territory.

In event insurgents are successful, the government they establish or of which they attain control is responsible for their acts. Here, of

14. In 1927 the Institute of International Law adopted the following resolution: "A state is, in principle, not responsible for the damage caused to the persons or property of a foreigner by persons taking part in an insurrection or not or by mob violence. Nevertheless a State is responsible for damage caused to the person or property of a foreigner by persons taking part in an insurrection or not or by mob violence if it failed to use such diligence as was due in the circumstances in preventing the damage and punishing its authors." Cited in International Law, Hyde, op. cit. p. 981 footnote 2.

15. Acting Secretary of State to Ambassador to Mexico, For. Rel. 1912, pp. 946-947.

course, the successful revolutionists become the state, at least de facto, and the state is responsible for the successful revolution ab initio.16

BLOCKADE DURING INSURGENCY

In the early stages of insurrection, the insurgents usually seek to gain control of key points in the country. If ports of entry remain in the hands of the legitimate government, it continues to receive aid from abroad. If the insurgents can gain control of ports there are always those who will sell to them.

Of course, recognition of a state of insurgency does not legally justify a foreign state in giving aid to the insurgents. It does not make the recognizing state a neutral under international law, even when there is an accompanying declaration involving the neutrality laws. In times of domestic tranquillity every state has an obligation to prevent the organization of armed expeditions against a recognized government. This obligation is not changed as a result of a declaration acknowledging insurgency. Nevertheless certain situations do arise which involve questions of international law. One of these is whether either the insurgents or the legitimate government can blockade ports held by the other. The practice of nations and the doctrines expressed by publicists and in diplomatic communications have been uniform in denying such rights to insurgents.17 An insurgent party is not a sovereign nation maintaining the usual relations with other nations of the world and does not have the same legal basis for declaring a blockade.

Secretary of State Hay in 1902 well stated the rule regarding blockade by insurgents:

1. Insurgents not yet recognized as possessing the attributes of full belligerency cannot establish a blockade according to the definition of International Law. 2. Insurgents actually having before the port of the State against which they are in insurrection, a force sufficient, if belligerency had been recognized, to maintain an international law blockade, may not be materially able to enforce the conditions of a true blockade upon foreign vessels upon the high seas, even though they be approaching the port. Within the territorial limits of the country their right to prevent the access of supplies to their enemy is prac16. "The nation is responsible for the obligations of a successful revolution from its beginning, because, in theory, it represented ab initio, a changing national will, crystallizing in the finally successful result. Success demonstrates that from the beginning it was registering the national will." Bolivar Railway Commission Case, 1903, Raiston's Report 388, 394. (Cited in Hyde, op. cit. p. 988, footnote 2.)

17. cf. International Law Digest, Moore, Vol. I, pp. 184, 202-204; Hackworth, Vol. I, p. 359.

In 1936 the Spanish insurgents notified the British Government that they intended to block the importation of munitions into Barcelona which was still in the hands of the Loyalist Government. This was tantamount to a blockade, but the British requested safety zones where neutral ships would not be bombarded. They did not recognize the action as a blockade, nor as a matter of fact did the insurgents designate it as one.

The United States precedent in this regard is found in the case of the action in Brazil in 1893, where a squadron of Brazilian ships, having revolted, claimed control of the harbor at Rio de Janeiro. The shore was still in the hands of the government forces. The United States, German, English, French and Portuguese naval commanders announced that

They do not recognize the right of insurgent forces to interfere in any way with commercial operations in the Bay of Rio de Janeiro, operations which should be allowed to be accomplished everywhere except in the actual lines of fire of the land fortifications

In consequence they have decided to protect merchandize, not only on board their own countries' vessels..., but also on lighters, barges, and other means of maritime transport, provided they be employed by these same ships in commercial operations.1o Admiral Benham, commanding the United States forces, gave notice that he would protect all American ships, and when an insurgent vessel fired on an American cargo ship, forced the insurgent vessel to desist by giving evidence that if she did not he would sink her. This action deterred the insurgents from further interference with commercial shipping.

In 1924 the United States did not admit the right of Mexican insurgents to blockade the port of Tampico. An American cruiser was ordered there to protect United States interests and the insurgents abandoned their effort to blockade the port.20

While insurgents may not blockade a port, with all the accompanying rights of blockade, they may act to prevent supplies from reaching their opponents within territorial waters. They may not seize or destroy the foreign vessel but may divert it to a port for the removal of the supplies provided compensation is made therefor.

In the Spanish revolution outside powers admitted that the insurgents under General

18. Naval War College, International Law Situations, 1902, p. 80. 19. Moore, op. cit. p. 203.

20. Hackworth, op. cit. p. 170.

Franco could intercept and interfere with commerce within the three mile limit, but it was insisted that there was no right to interfere with any foreign ship on the high seas.21

The rule regarding blockade by the parent government is similar. In the absence of a recognition of belligerency, there is no right of blockade. In fact an announced blockade by the parent state is considered a recognition of belligerency. In the American Civil War Lincoln's proclamation of blockade of Southern ports was treated as a recognition of belligerency.22

While this principle is well established it is modified in practical effect, by the claim of the legitimate sovereign to close ports in the hands of insurgents. Here a somewhat peculiar result is reached.

While admitting that a port in the hands of insurgents cannot be "blockaded" under the rules of war, the position of the United States and other world powers has been that a port in the hands of insurgents can be closed if there is an effective "blockade" of such ports. This principle was carried to a peculiar result in the case of United States (Oriental Navigation Claim) vs. United Mexican States.23 Here it was held that the action of one vessel, the AQUA PRIETA, in forcing the GASTON to cease unloading and to put to sea, was legal. Frontera was held by insurgents, but had been closed by the Mexican authorities. The basis of the decision was that the port was partly controlled by the AQUA PRIETA and so was not completely in the hands of the insurgents. Nevertheless it was stated that the Mexican authorities would not have a right to interfere with a vessel on the high seas even though bound for an insurgent held port. The holding of the Commissioners 21. "The United States held, and quite properly under international law, that in the absence of recognition of belligerency neither party had any legal right to interfere in any manner, whether by surface, subsurface, or aircraft, with American shipping upon the high seas. Control and interference within the three mile limit was not objected to, provided there was no condemnation as for the violation of a blockade, and provided the vessels were not made the objects of direct attack." Norman Padelford, International Law and Diplomacy in the Spanish Civil Strife (1939) pp. 172-173.

22. "If a State invokes belligerent rights by instituting a blockade de jure belli against any of its ports in the hands of rebels or insurgents, this constitutes a recognition of belligerency of the insurgents and justifies the application of the laws of war by both contestants and of the laws of neutrality by third states.... The British Government quite correctly maintained that, by proclaiming, on April 19, 1861, a blockade of the coasts and ports of the Southern States 'in pursuance of the laws of the United States and of the law of Nations' the United States had itself recognized the belligerency of the insurgents prior to British Recognition." Briggs, op. cit. Editors note p. 991.

23. United States-Mexico, General Claims Commission, 1928, Opinions of Commissioners, p. 23.

would have been better supported by an extension of the principle of the right of a party to an insurrection to prevent aid from reaching its opponents-but the unloaded cargo which spoiled was bananas.

In 1936 the position of the United States regarding a declaration of Spanish ports in the hands of insurgents as war zones was stated in the following words:

My Government directs me to inform you in reply, that, with the friendliest feelings toward the Spanish Government, it cannot admit the legality of any action on the part of the Spanish Government in declaring such ports closed unless that Government declares and maintains an effective blockade of such ports. In taking this position my Government is guided by a long line of precedents in international law with which the Spanish Government is doubtless familiar. The generally accepted principle then seems to be that the parent state (but not an insurgent force) may close ports in fact held by insurgents only if accompanied by an effective force capable of maintaining a belligerent type blockade, but that the rights of a belligerent blockade, such as capture and confiscation, do not arise. George Grafton Wilson, an expert on the laws relating to insurgency, wrote:

Attempts have also been made by the parent state to obtain advantages of a blockade without the obligations of war through a proclamation declaring ports held by insurgents closed. Foreign states have, however, usually taken the position that such decrees are of no effect and the ports in the hands of the insurgents are closed only to the extent to which an effective force may physically prevent entrance.24

In 1949 the Chinese Nationalist Government announced the closing of the territorial waters of China from the Min River at Foochow to the Liao River in Manchuria, which was then in control of the "People's Government" in Peking. Great Britain and the United States did not recognize the validity of this declaration of blockade on the double ground that the "People's Government" had not been accorded a status of belligerency and that the Chinese Nationalists did not have naval forces sufficient to make this extensive blockade effective.25

As may be expected under such a rule there are practically no judicial precedents on the effect of closure of ports,26 for there apparently have been no claims for confiscation or destruction of foreign ships seeking to enter them.

24. G. C. Wilson, "Insurgency and International Maritime Law" 1 AJIL (1907), p. 55.

25. J. Wookey, "Closure of Ports by the Chinese Nationalist Government" 44 AJIL (1950), pp. 350-356.

26. See Edwin Dickenson, "The Closure of Ports in Control of Insurgents" 24 AJIL (1930), pp. 69-78.

VISIT AND SEARCH-PIRACY

Visit and search of vessels on the high seas is strictly a belligerent right under international law. It is a burden placed upon trade during war in order that a belligerent may ascertain the nationality of a vessel and its possible relation to the war. Our courts have affirmed that "the right of search is a strictly belligerent right." 27

Many states have in times of insurrection attempted to visit and search foreign vessels near their coasts. The position of the United States in this regard was stated in 1855 when the Secretary of the Navy advised Captain Crabbe regarding search of the United States merchant ship EL DORADO:

This act is regarded as an exercise of power which the United States have ever firmly refused to recognize, and to which they will never submit. In the absence of a declaration of war, which alone belongs to Congress, our officers in command of ships of war would have no right to pursue and retaliate for such an act. But if present when the offense is perpetrated upon a vessel rightfully bearing the flag of our country, the officer would be regarded as derelict in his duty if he did not promptly interpose, relieve the arrested American ships, prevent the exercise of this assumed right of visitation or search, and repel the interference by force.28

This principle was maintained during the years of Cuba's insurgency prior to the Spanish American War.

Insurgents also have often sought to maintain the right of visit and search. They may attain sufficient control of the sea near their country, to attempt to subject foreign vessels to visit and search in an effort to prevent supplies from reaching their opponents. It is well established that such acts by insurgents are not sanctioned by law and will not be tolerated.29

In 1911 a Chinese revolutionary faction gave notice of intention to visit and search foreign merchant vessels for contraband of war and to subject such goods to prize proceedings, if contraband. The Commander-in-Chief of the United States Asiatic Fleet informed the insurgents that since they were not recognized by the United States as belligerents, he would not permit the seizure of American ships. This action was approved by the Department of the Navy.30

27. The Antelope 10 Wheat. U.S. Supreme Court Reports 66, The Marianna Flora 11 bid. 1.

28. Senate Executive Document No. 1, 35th Congress, Special Session. 29. cf. The International Law of the Sea, C. J. Colombos (1959), pp. 388, 689.

30. Hackworth, op. cit. Vol. VII, p. 169.

In 1912 the Naval War College considered the right of visit and search during insurgency and concluded:

. . . It is evident that the right of visit and search is regarded as a right which might be lawfully exercised only in time of war. Whatever other measures as regards foreign vessels the parent state or the insurgents may take in time of insurrection, they may not resort to visit and search on the high sea. Orders issued by the authorities of the United States have enjoined resistance to the exercise of visit and search under such circumstances. The law sanctions such resistance even by private vessels. The Navy Regulations enjoin upon naval commanders the protection of merchant vessels of the United States from visit and search except by lawfully authorized vessels in time of war."

Again in 1938 the Naval War College publication dealt with the problems of visit and search during insurgency. It was asserted that neither the insurgents nor the parent state have the right to visit and search or make seizures on the usual belligerent grounds of carriage of contraband, blockade or unneutral service. It was recognized that within territorial waters each party has a right to prevent supplies from reaching their opponent but that neither can seize, condemn or destroy foreign ships.82

On the other hand, insurgent ships and their crews will not be treated as pirates even though the parent state may declare that they are. Secretary Fish in 1869 with regard to insurgent vessels declared to be pirates by Haiti:

No facts have been presented to this government to create a belief that the operations of the vessels in question have been with a view to plunder or had any other than a political object. That object is hostile to a Government with which the United States have maintained a friendship that it requires no fresh manifestation to evince. We deem it most decorous to leave it to that Government to deal with the hostile vessels as it may find expedient, reserving the consideration of our action in respect to them till some offense, actual or apprehended, to the United States shall render it imperative.33

Piracy is usually an act with animus furandi, an act undertaken for robbery, for private purposes, and accompanied by violence; and not a political act aimed at a particular state or the citizens of one state.

The case appears more difficult when there is a civil war and the regular government's warships take the side of the rebels before the latter have been 31. Naval War College, International Law Situations, 1912, p. 27. 32. Naval War College, International Law Situations, 1938, pp. 92, 93. 33. Moore, op. cit. p. 1085. Piracy as defined in International Law does not cover insurgents. See also The Ambrose Light, 25 Fed. 408 (1885).