administration of law has been nerveless or inefficient, or the government has failed to grant to a foreigner the protection afforded citizens, or measures within the power of the government have not been taken

Vols. 2 and 3 of the collected briefs. In a few cases awards were made for injuries inflicted by insurgents, based upon the refusal of the Spanish officials to allow the owners to remove their personal property to a place of safety (see also Rule 3 of the Nicaraguan Mixed Cl. Com. of 1911) or upon wrongful interference by those officials during the process of such removal. Final Report, 8. See also the "mobilizados" awards (p. 9) and the Tuinucu award (No. 240) attributed to negligence of Spain in failing (not through inability) to afford protection (p. 8). As a rule, the general powerlessness of Spain to protect Cuban plantations, relieved her of liability for injuries committed by the insurgents.

Exceptions to the general principle were made in the Venezuelan Steam Transportation Company case (U. S.) v. Venezuela, Jan. 19, 1892, Moore's Arb. 1693, 1723, although the exception is greatly weakened by the absence of grounds for the decision. (Andrade wrote an excellent dissenting opinion supporting the general rule of non-liability, pp. 1724–1732.) See criticisms of the decision by Ralston and Plumley expressed in the Sambiaggio and Aroa Mines cases (supra) and printed in Ralston's International arbitral law and procedure, Boston, 1910, p. 237. The Montijo award (U. S.) v. Colombia, August 17, 1874, Moore's Arb. 1421, 1426, another exception to the rule, was based on the U. S.-New Grenada special treaty of guaranty of protection and on the fact that an amnesty had been given to the rebels. It was not decided on principle. In the case of Easton (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1629, another exception to the rule, the Peruvian council of ministers had admitted liability. The question of Peru's liability for the acts of revolutionists seems not to have been discussed.

The reason that umpire Duffield in the German-Venezuelan commission of 1903 (case of Mohle, Ralston, 574; Fulda, ibid. 561; Kummerow, ibid. 559; Redler, ibid. 560 (dictum); Great Venezuelan Railroad, ibid. 639; Valentiner, ibid. 565) held Venezuela liable was based on what he construed to be an admission of liability in the protocol of arbitration. Throughout the decisions he expressed the view that it was contrary to principle, and he confined it strictly to the specific insurrection covered by the admission, and not to any other (Van Dissel, Ralston, I, 565, 573), nor to the acts of guerillas (Great Venezuelan Railroad, ibid. 639). The umpire of the SpanishVenezuelan commission, Gutierrez-Otero (Mena, Spain v. Venezuela, April 2, 1903, Ralston, 931; Padron, ibid. 923, 926) held that under that protocol the interposition of the general rule by Venezuela as a defense to the claim was a "technical objection" within the inhibition of the protocol. See Ralston's criticism of this view in Guastini, ibid. 748. Filtz, umpire of the French-Venezuelan commission, gave no reasons for his decisions, although presumably he always considered that there was an admission of liability in the protocol.

The State Dept. and the British Foreign Office have almost uniformly maintained the principle that a government is not ordinarily liable for the acts of insurgents beyond its control, if by due diligence the government could not have prevented the acts complained of. Mr. Uhl, Acting Sec'y of State, to Mr. Springer, July 1, 1895,

to protect those under its jurisdiction from the acts of revolutionists," the general rule is suspended and foreign states may not only intervene by force for the protection of their subjects, but may demand indemnities, whether the injuries were sustained at the hands of the government forces or the insurgents.2 The mere fact that the state is subject to frequent revolution does not, however, affect the general rule of non-liability.3 The Spanish Treaty Claims Commission, after hearing lengthy arguments, adopted the following rules:

"In order to recover for damages done by insurgents" claimants must "allege and prove that at the time and place when and where the injury was done the [government] authorities could, by due diligence, and should have prevented such injury."

"In order to recover for damages done by the [government] forces" it is necessary to prove "that the acts done which resulted in the injury were done wantonly and unnecessarily."

For. Rel. 1895, 1216; Mr. Hay to Mr. Dudley, Dec. 7, 1899, Sen. Doc. 419, 56th Cong., 1st sess. (Gottfried claim v. Peru), 108. See also extracts in Moore's Dig. VI, 954-970 and Wharton, II, §§ 223-226. Instructions of British Foreign Office to Minister in Colon, quoted in Moore's Arb. 1728, Sen. Doc. 254, 57th Cong., 1st sess. See Peruvian S. S. Huascar case, 1877, 68 St. Pap. 745.

A few exceptions to the general rule are contained in extracts printed in Moore's Dig. VI, 972 et seq. They are based either on special circumstances or on the theory (see Mr. Fish to Mr. Foster, Aug. 15, 1873. Moore, VI, 974 and July 15, 1875, Moore, VI, 980) that unrecognized insurgents (before a state of belligerency exists) are subject to the penal law, and that the failure to protect aliens against them or to punish them imposes liability on the constituted government.

The general rule is confirmed in numerous treaties between the states of Europe and the Latin-American republics (infra).

1 Dictum by Ralston, Umpire, in Sambiaggio (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 679.

2 Their very weakness in maintaining a stable government, has, in fact, often been the actual if not the ostensible reason for imposing liability on some of the LatinAmerican states for injuries sustained by aliens in civil war. See Pradier-Fodéré, § 205, on the right of intervention.

3 Sambiaggio (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 691.

Special report of W. E. Fuller, Spanish Treaty Claims Commission, G. P. O. 1907, p. 25. Rule 4 of the Principles of allowance, Final Report of the Commission, 1910, p. 6. The Commission made awards in two exceptional cases of the burning of claimant's property by insurgents after the Spanish officials had unjustifiably refused to allow the owners to remove it to a place of safety or had wrongfully prevented its removal. Rodriguez (No. 479) and Thorne (No. 248), Final Report, p. 12. Government negligence was proved in Tuinuca (No. 240), ibid. 11. Samuel B. Crandall in 4 A. J. I. L. (1910), 818. Mr. Uhl to Mr. Springer, July 1, 1895, For.

The burden of proof is on the claimant.1 International commissions have enforced this rule, notwithstanding the difficulty of proving governmental negligence. In mob violence cases, on the other hand, notwithstanding the general rule of evidence, the government has generally been held to prove due diligence.

The rule of non-liability for injuries sustained in civil war extends to those inflicted during actual hostilities or by the agents or authorities of the government in the actual suppression of the revolution and admittedly necessary to that end, but is confined strictly to injuries inflicted in belligerent action against the insurgents. The titular government is accorded the free exercise of war rights. Thus it may, without incurring liability, prevent communication with the revolutionists,2 provided the measure does not violate the rules of war.

The government is liable for violations of the rules of war and particularly for wanton acts of pillage and incidental occupation of neutral property by government soldiers. The legitimate government is not Rel., 1895, p. 1216. See also Rule of the Nicaraguan Mixed Claims Commission

1911.

Revesno et al. (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 753; Mr. Bayard, Sec'y of State, to Mr. Sutphen, Jan. 6, 1866, Moore's Dig. VI, 964.

Case of brig Toucan. Brazilian indemnity, Jan. 24, 1849, Moore's Arb. 4615. A paper blockade, however, will not be recognized. Infra, note 6, page 234.

See principles 5 and 11 of the "Principles of Allowance" of the Spanish Treaty Claims Commission, Final Report, 4, 5, and awards, p. 10. See Rule 44 of Lieber's Rules, Halleck, II, 59. See also Cobham (Gt. Brit.) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 409; Upton (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 173; Deebs claim v. Colombia, For. Rel., 1907, I, 287; Anglo-Chilean Tribunal decisions, For. Rel., 1896, 35. Liability for acts of government forces is sometimes admitted by treaty (Treaty between Spain and Venezuela, Aug. 12, 1861, 53 St. Pap. 1051), and implied where the government is relieved by treaty from liability for acts of insurgents. Admission of Canalejas in reference to claims of the Powers v. Spain, account of insurrection in Cuba, 39 Clunet (1912), 675. See also American Electric and Mfg. Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 35. (Destruction by revolutionists of neutral property occupied by government troops). See also Putegnat's heirs (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3720. Mr. Sherman, Sec'y of State, to Mr. Dupuy de Lôme, August 11, 1897, For. Rel. 1897, 520. After the revolution of 1911, China was held liable practically as a guarantor for all wanton destruction by either side, and even for destruction of property in the course of belligerent operations. Numerous awards were made by the Arbitrator of the Italian-Peruvian Commission under protocol of November 25, 1899, arising out of injuries inflicted by government troops, which he attributed to negligent failure to protect the property of neutrals.

in general liable to the neutral owners of property destroyed by the government troops while in the hands of rebels, for it has then become enemy property subject to destruction.1 Where the government, however, receives a benefit from neutral property taken from the rebels, originally seized by the latter, equity requires, it has been held, that it should pay for the property2 and for injuries sustained by the property through the unusual use to which it has been subjected while in government hands.3 The Spanish Treaty Claims Commission made awards for the seizure and use by Spanish forces of private property in Cuba, regardless of the purpose of the appropriation, whether to satisfy the needs of the army or to prevent its falling into the hands of the enemy. The government is bound to make compensation for the use of neutral vessels in its ports, and for their detention for purposes of the war. This exercise of the right of angary and embargo is often regulated by treaty.5 A state is also liable for injuries sustained by aliens in closing, by proclamation, a port in the control of the insurgents, a violation indeed of the laws of blockade. In this connection, it may be noted that the distinction between a state of war and a state of insurrection has important consequences with respect to foreign countries," but in the matter of closing ports in the hands of insurgents, only an

4

Descamps & Renault, Rec. int. des traités du xx siècle, 1901, Chiessa, p. 707; Sassarego, 708; Sanguinetti, 713; Vercelli, 717; Quierolo, 718; Valle, 721; and others. 1 Barrett (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2900. See also case of Walker, ibid. 2901.

2 Mazzei (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 693.

Bonti (U. S.) v. Mexico, July 4, 1868, Opinions, 718 (not in Moore). Agnoli, Italian commissioner in the Guastini case, supra (Ralston, 737) contended for the construction that such property was not enemy property, relieving government from liability for its return.

The general rule relieves the government of liability for neutral property destroyed to prevent its falling into the enemy's hands. Notwithstanding that this was the purpose, the Commission made awards if the property was used (Final Report, 12, 13). See also Rule 4 of Nicaraguan Mixed Claim Com., 1911.

5 Bonfils, § 328; Chepica (Gt. Brit.) v. Chile, For. Rel., 1896, 38.

Rule 1b of the Institute, 18 Annuaire, 254, Wharton, III, § 361, Moore's Dig. VII, §§ 1270–1271; De Caro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 810; Comp. Gen. des Asphaltes (Gt. Brit.) v. Venezuela, Ralston, 337, and authorities there cited. As to illegal warning off from ports in hands of insurgents, see Boyne and Monmouth (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3923.

'Moore's Dig. I, 166, 167.

effectively established blockade need be recognized by foreign powers. This does not affect the right of states, in time of peace, and under appropriate circumstances, to designate the ports within their control which shall be open or closed to commerce.

§ 94. Limitations on General Rules. Effect of Recognition, Continued Residence, Participation and Amnesty.

It will now be proper to examine certain limitations on the general rules governing state responsibility for injuries occurring in civil war. These arise out of (1) the recognition of the belligerency of the insurgents by the parent state or by foreign governments, or the existence of actual belligerency; (2) the continuation of domicil by a foreigner in the territory in insurrection; (3) participation in the rebellion on the part of a foreigner; and (4) the effect of amnesty.

Recognition, by the parent government, of the belligerency of insurgents against it or the existence in fact of a state of war releases the state from responsibility for all acts of the insurgents subsequent to the recognition. Recognition by some foreign governments only, operates as a release as against their subjects, and other non-recognizing powers are not necessarily bound. Recognition by the parent government is usually tacit and indirect only. The rule that the government is responsible for such acts of insurgents as were perpetrated through its own negligence is, therefore, suspended by the act of recognition. Formal recognition is not, however, necessary to raise insurgency to the plane of belligerency. Belligerent rights may be acknowledged without recognition and this is usually the case on the part of the parent government. In the Civil War, for example, the non-responsibility of the United States resulted not from the recognition of the belligerency, but from the fact of belligerency itself, whether recognized or not by other governments.2 The importance of establishing the fact of or a recognition of belligerency is therefore great. Up to that point the government may treat the rebels as traitors and criminals

'Mr. Fish, Secretary of State, to Mr. Foster, Minister to Mexico, Dec. 16, 1873, Moore's Dig. VI, 976. The Spanish Treaty Claims Commission took judicial notice of the fact that the insurrection in Cuba passed from the first beyond the control of Spain, and that war in a material sense existed.

'Prats (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2886.