Page:Harvard Law Review Volume 9.djvu/435

407 RECOGNITION OF CUBAN BELLIGERENCY. 407 Intervention in Cuba would mean taking part in the contest there on one side or the other; recognition of Cuban independence would mean recognition of her separation from Spain as an accom- plished fact. The latter course is impossible; no one advocates the former. Recognition of the belligerency of the insurgents is the only course urged. The right to recognize belligerency rests upon two circum- stances : the existence in fact of what in international law is regarded as legal war, and the necessity on the part of the nation which acts, of recognizing the existence of that fact.^ War, in law, is not a mere contest of physical force, on however large a scale. It must be an armed struggle, carried on between two political bodies, each of which exercises de facto authority over persons within a determinate territory, and commands an army which is prepared to observe the ordinary laws of war.^ It requires, then, on the part of insurgents an organization purporting to have the characteristics of a state, though not yet recognized as such. The armed insurgents must act under the direction of this organ- ized civil authority. An organized army is not enough. And all this, of course, must take place within the territorial limits recog- nized by foreign States as part of the parent country.^ When once we realize that belligerency is a fact, we can see the extreme difficulty of determining the fact. It is a question of the state of internal affairs in another nation. We have, as a nation, no regular way of knowing what takes place in a foreign country except through our Ambassador or Minister there. But the Ambassador's relations are with the parent government, which seldom acknowledges the belligerent status of insurgents ; and he lives in the capital, which is usually far from the seat of war, Information from our consuls in the insurgent territory cannot be regarded as trustworthy, for they are appointed as mere business 1 Dana's Wheaton, note 15; Calvo, Droit Intern., 4th ed., vol. i. p. 238; Hall, Intern. Law, 3d ed., p. 31 ; Walker's Science of Intern. Law, p. 115. 2 This definition is taken, with a little change, from Walker, loc. cit. See also Dana's Wheaton. 3 The reason for this requirement is plain. We must have some political organiza- tion responsible for what takes place in all the territory of the civilized world. By recognizing the belligerency of insurgents, we free the parent country from all respon- sibiUty for what takes place within the insurgent lines (Dana's Wheaton, note 15, p. 35). The insurgents, therefore, must have an organization in that territory which can be held responsible for injury. Belligerents, in the legal sense, not only fight, they fight as a state fights, claiming to be a state, and expecting, if successful, to be recog- nized as such.