ValOracióN dE cabEza y cUEllO (continuación)

LAW

In general, prior to the recognition of belligerency, governments enjoyed certain privileges over the opposition. Significantly, states at peace with the beleaguered government were required not transfer arms or funds to the opposition, nor to allow “hostile expeditions” to leave their territory in support the rebels, or to interfere, in general, in the governments efforts to quell the uprising.27 After recognition of belligerency, the government lost some of these privileges, as third states could assume a neutral disposition without it being considered a violation of the peaceful relations with the challenged government. However, a major qualification was that before the prohibition on the use of force, these were only conditions required to maintain peace, in the legal sense; a third state could thus exercise its war prerogative and intervene forcefully regardless of belligerency recognition or its absence. It is thus clear that in any case, consent could be an important tactical asset for the intervener; however, it was not needed as a legal precondition for intervention.

As aforementioned, belligerency was an intermediate status, the acquirement of which led to a complex structure of rights and obligations. In the political sense, logic dictates that the existence of a war must also imply a limited recognition of an independent authority that conducts it. Therefore, recognition of belligerency must have meant also a limited recognition of rebelling government, for the purpose of warfare.28 Accordingly, for instance, a belligerent power would not enjoy the consular and diplomatic rights – the right of “legation” – of a recognized government or state;

27

LAUTERPACHT,supra note 6, at 230 (citing the 1900 resolution by the Institute of International Law.) 28

however, its representatives – or political agents – could be party to “informal” negotiations, and enjoy certain immunities.29

In the era of the dominance of naval warfare, and as elaborated shortly, much of the preoccupation regarding the question of belligerency concerned the rights of belligerents at sea.30 In this context, a belligerent power was entitled to issue letters of marque and to deploy privateers,31 and to have its men-of-war enjoy the immunities guaranteed for warships under international law. Further rights at sea included the right to visit and search neutral merchant vessels, on the high seas, for contraband; to impose a third-party binding blockade on the government’s coasts;32 and even to establish prize courts for condemnation of captured neutral vessels carrying contraband or running a blockade, without being considered as pirates.33 As such, the recognition of belligerency had the potential to significantly disturb neutral commerce.34

29

1 OPPENHEIM,supra note 10, §362, 453; see also Woolsey. supra note 25, at182; this question rose in the famous “Trent Affair” of 1861, in which a Union vessel intercepted a British vessel carrying

Confederate agents en route to Britain and France. Britain, which recognized the Confederacy as a belligerent, claimed that these individuals enjoyed immunity. The affair almost sparked a war between Britain and the U.S., the latter eventually released the Confederate agent, apologized and paid reparations to Britain. See CHARLES FRANCIS ADAMS,THE TRENT AFFAIR:AN HISTORICAL RETROSPECT (1912).See also 2 OPPENHEIM,supra note 7, §408 ff3; Quincy Wright, The American Civil War, in THE

INTERNATIONAL LAW OF CIVIL WAR,supra note 22, at30,90–93, 97 –98. 30

See, e.g., WHEATON’S supra note 5. 31

Privateers were private merchant vessels authorized by letters of marque to capture enemy vessels during war. Letters of marque were issued by belligerents to private ships, thereby authorizing them to carry naval hostilities, mainly the capture of enemy merchant ships as prize. See NATALINO RONZITTI,THE LAW OF

NAVAL WARFARE: A COLLECTION OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES 66(1988). Privateering declined over the centuries as the technological gap between private and military vessels increased. See THEODORE D.WOOLSEY,INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 80–81 (1879); Privateering was abolished, between signatory states, in the Declaration of Paris of 1856. 32

See Institut de Droit International, supra note 20; 1 OPPENHEIM,supra note 10, §273; 2 OPPENHEIM , supra note 7, §298; see also Padelford, supra note 1, at 231 –232 (arguing that the General Franco’s forces attempt to blockade Spanish ports during the Spanish Civil War were ignored because of non-recognition of belligerency). For a relatively recent statement of customary international law regarding rights and obligations of belligerents in naval warfare see the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Jun .12, 1994).

33

See Edwin D. Dickinson, The Closure of Ports in Control of Insurgents, 24 AM.J.INT’L L.70,70(1930); Woolsey, supra note 25, at 183–184. For a succinct summary of the logic of traditional prize law and neutrality, see the opinion of the Lord Chancellor in Ex Parte Chavasse, 46 E.R. 1072 (1865) (Gr. Brit.). 34

Moreover, transfers of arms by third parties governments to opposition groups were considered wrongful, prior to the recognition of belligerency, while such actions vis-à-vis recognized governments were not. After recognition of belligerency, if the third state wished to remain neutral, government transfer of arms to both parties was prohibited.35 There was also a view, prevalent in the opinions of some commentators on the Spanish Civil War, that prior to such recognition it was illegal to impose an arms embargo (negative intervention), thereby prohibiting also private parties from selling arms to the recognized government involved in an internal conflict.36 Only after such recognition, this position argued, an embargo on both parties was considered legitimate, provided it was impartial.37 This view, however, did not gain hold.38

Furthermore, prior to recognition of belligerency, if states chose to remain on friendly terms with a government involved in an internal strife, they were required to prevent the organization, in their territories, of private armed expeditions against the government. This term can be compared, perhaps, to the contemporary requirement that states exercise due diligence regarding non-state actors operating from their territories. Upon recognition of belligerency, if states wished to maintain neutrality, they were required to prevent such actions on behalf of both parties. However, they were not held responsible for acts of unorganized individuals that crossed the borders to assist either belligerent.39

35

O’Rourke, supra note 23, at 409; LAUTERPACHT,supra note 6, at 231–233. See discussion in Chapter 4, sec. III.

36

See Thomas, supra note 22, at 143. 37

Id. 144. 38

LAUTERPACHT,supra note 6, at 243 n. 1. 39

Thomas, supra note 22, at 144 –145; Hague Convention V: Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), U.S.T.S. 540, arts. 4, 6.

It could be argued, as we shall see, that after the renouncement of war enshrined in the 1928 Kellogg Briand Pact, recognition of belligerency resulted in mandatory neutrality40 since for the first time, force was no longer a sovereign prerogative, and thus neutrality was no more a matter of unfettered discretion.41

A belligerent would incur responsibility for wrongful acts committed in the territory under its control –42 and thus, naturally, would release the government from liability for the same acts.43 It would be capable, in some cases, to create contract and property rights enforceable after the end of the conflict.44 Although prevalent authorities, for centuries, opined that the laws of war apply to every party to internal strife,45 even if the opposition was not recognized as a belligerent, the position of most jurists, traditionally, was that prior to recognition of belligerency such law does not bind legally, in the strict sense, but ought to be applied on counts of considerations of humanity.46 However, after belligerency was recognized it was understood that contending parties were bound to observe the laws of war regarding their enemies as well as concerning neutrals, on land and on sea.47 Consequently, belligerents’ troops captured were generally entitled to the status of prisoners of war.

40

This is true if we adopt the notion of strict-abstentionism – meaning, the perception that states were prohibited from intervening on part of any party once a significant internal armed conflict erupted. For more on this approach see Chapter 8, sec. III.

41

Thomas, supra note 22, at 165. 42

OPPENHEIM 1,supra note 10, §167. 43

Woolsey, supra note 25, at 184; see also O’Rourke, supra note 23, at 399–401. 44

The Confederacy’s currency was also recognized de facto. See Wright, supra note 29, at 67. 45

See, e.g., EMMERICH DE VATELL THE LAW OF NATIONS §§294–295.(1797), available at http://books.google.com/.

46

See Instructions for the Government of Armies of the United States in the Field (Lieber Code), art. 152 (Apr. 24, 1863); Wright, supra note 29, at 55;see also Padelford, supra note 1, at 229.

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