29. Belligerents

(a) A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent.

Conditions prior to

recognition.

(b) The general conditions prior to recognition are: (1) That the end which the community in revolt seeks shall be political, i.e. a mere mob or a party of marauders could have no belligerent rights; (2) the hostilities must be of the character of war and must be carried on in accord with the laws of war; (3) the proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization.

As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of belligerency exist, there may be great divergency of opinion in cases of recognition,' but the question of belligerency is a question of fact and never a question of theory.

(c) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a responsible organ

Grounds of recognition.

ization may not, without offense to the parent state be recognized as a belligerent except upon good grounds. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection.' "2 "The reason which requires and can alone justify this step (recognition of belligerency) by the government of another country, is, that its own rights and interests are so far affected as to require a

1 See numerous references in 51 Br. and Fr. St. Papers; also Hall, p. 33. Hall, p. 32.

A recognition

definition of its own relations to the parties. 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. 99 1

(d) Recognition of belligerency is naturally an act of the executive authority.2

The following is the proclamation of Queen Victoria of May 11, 1863:

"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:

Recognition of belligerency an act of the executive authority.

"And whereas we, being at peace with the Government of the United 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 relations thereto, as they will answer to the contrary at their peril."

(e) Certain consequences follow the recognition of bellig

erency.

(1) If recognition is by a foreign state

From the date of recognition, the parent state is released from responsibility to the recognizing state for the acts of the belligerents.

1 Wheat. D., note 15, p. 34.

1 Moore, §§ 59-70.

So far as the recognizing state is concernea, the parent state and the belligerent community would have the same war

Consequences of recognition

of belligerency.

status, i.e. in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the recognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must accord the belligerent community all the privileges of a full state.

The recognizing state may hold the belligerent community, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its belligerency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts committed by the recognized community after the date of recognition.

This recognition does not necessarily affect other than the three parties, the recognizing state, the belligerent community, and the parent state.

(2) If recognition is by the parent state

From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents.

So far as the prosecution of hostilities is concerned, the community, recognized as belligerent by the parent state, is entitled to full war status.

From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, i.e. contracts made with a belligerent, or responsibilities assumed by a belligerent, do not fall upon the victorious parent state.

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

(3) General effect of recognition

In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties General effect directly concerned when recognition is by a single of recognition. foreign state. In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality, may demand reparation for any breach of the same, may maintain blockade, prize courts, and take other measures allowable in war.

Admission or recognition of war status.

(f) Insurgent status is usually tacitly admitted for a period prior to the recognition of belligerency, and the vessels of the insurgents are not regarded as pirates either in practice or theory. They have not the animus furandi. The admission of insurgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status.

30. Communities Not Fully Civilized

While there is no agreement as to what constitutes civilization, still international law is considered as fully binding only upon states claiming a high degree of enlightenment. Communities, whether or not politically organized and not within

the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities should be treated as civilized states would be treated, so far as the time and other circumstances permit. Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization. Many states not admitted to the circle of nations have now acquired such a status as entitles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded.