Imágenes de páginas
PDF
EPUB

In several important cases, however, the granting of an amnesty to rebels has been held not to constitute an assumption of liability for their acts. This has been the case in the United States for the acts of the Confederates, and in Mexico,1 and on principle, appears to be the better rule. As a practical matter, it is not always easy to distinguish between a movement on such a small scale as to amount to a conspiracy or plot against the established government, punishable by municipal law, and a general movement assuming the proportions of an armed contest against the government, of which international law takes notice by recognizing a status of insurgency, manifested in various ways, e. g., a warning by foreign governments to their subjects to abstain from participation. While as a matter of strict right the government may treat the insurgents as criminals, modern practice tends to regard them as belligerents, with rights as such, provided they observe the rules of legitimate warfare.

§ 95. Insurgents in Temporary Control of Limited Areas.

Much difficulty is created by the case of insurgents controlling a part of a territory in insurrection and exercising authority over the area they control. The question has arisen in connection with forced loans and the collection of customs dues by such temporary authorities. Whether the general government is bound by their acts depends upon the extent to which they have become de facto authorities.2 The general tests of a de facto government have already been considered (supra, p. 210).

Secretary Fish, in 1873, asserted the liability of Mexico for forced loans levied by insurgents, basing the contention on the stipulation of the treaty of 1831 with Mexico.3 Treaties of the United States with most of the countries of Latin-America exempt American citizens

'British-U. S. commission of 1871; French-U. S. commission of 1880; Devine (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2980, Opinion by Thornton, umpire. 2 Wharton, II, 577, § 223.

Mr. Fish, Sec'y of State, to Mr. Foster, Aug. 15, 1873, Moore's Dig. VI, 916; see also Mr. Cadwalader to Mr. Foster, Sept. 22, 1874, who did not even base the contention upon a treaty, Ibid. 917. Secretary Evarts did not construe the treaty to forbid forced loans. Mr. Evarts, Sec'y of State, to Mr. Scott, April 17, 1877, Moore's Dig. VI, 917.

from forced loans, and it is probable that the general government will be held liable for the exaction of such a loan by de facto authorities exercising jurisdiction over a certain area, whether an insurgent faction or not.1

The legitimacy of the collection of customs dues and other taxes by insurgents in control of a certain area depends, similarly, upon the extent to which they are temporarily de facto authorities. If they are in exclusive control the legitimate government has no right to demand second payment of taxes. "Money paid to the de facto authorities”— it was said in the case of Guastini-"in the shape of public dues, must be considered as lawfully paid, and receipts given by them regarded as sufficient to discharge the obligations to which they relate. Any other view would compel the taxpayer to determine at his own peril the validity of the acts of those executing public functions in a regular manner." 2 The United States has always insisted that a payment to de facto authorities releases the taxpayer from a second payment, especially where made under protest.3 Where the so-called insurgents have not become actual de facto authorities, but have, nevertheless, in the character of organized marauders rather than political factions, collected dues, the rule as to second collections has not been uniform. To abstain from demanding a subsequent payment to constituted authorities becomes rather a matter of gracious remission of duties to which the titular government has a right. All the circumstances

4

1 See case of Fowks v. Peru, For. Rel., 1901, 430-434 (although the revolutionists in this case eventually became successful).

2 Guastini (Italy) v. Venezuela, Ralston, 750; Santa Clara Estates (Gt. Brit.) v. Venezuela, ibid. 397; De Caro (Italy) v. Venezuela, ibid. 819. See the famous case of U. S. v. Rice (the Castine collections), 4 Wheaton, 246, Opinion by Story; MacLeod v. U. S. (1913), 229 U. S. 416, 429. Supra, p. 208.

3 The compulsion to pay became important in a case in Colombia where the government by decree sought to compel merchants to refuse to pay rebels and, if they did, to pay the government again. (Moore's Dig. VI, 995.) The United States remonstrated against the decree. The decree was then limited to those who had voluntarily paid the insurgents. The United States contended that this vis major or compulsion was to be presumed unless the contrary was shown. See also Suchet (France) v. Venezuela, 9 R. G. D. I. P. (1902), 628; 8 ibid. 57.

Mr. Adee to Mr. Clancy, Mar. 6, 1899 (the Bluefields insurgents), For. Rel., 1899, 548, 558. In France it was held that payments to agents of an insurrection do not bind the legitimate government except so far as it admits this, and that it alone was

particularly the de facto character of the authorities collecting the duties, must be considered.

§ 96. Successful Revolution.

A successful revolution stands on an entirely different basis. The government created through its efforts is liable for the acts of the revolutionists as well as for those of the titular government it has↓ replaced.1 Its acts are considered as at least those of a general de facto government,2 for which the state is liable from the beginning of the revolution, on the theory that the revolution represented ab initio a changing national will, crystallizing in the final successful result.3 Thus the government created through a successful revolution becomes liable for all services rendered to the revolutionists.4 The unlawful acts of successful revolutionists render the government equally liable."

invested with the right to recognize or annul the acts of the insurgents. 25 Journ. du Dr. Adm. (1877), 233.

1 Bolivar Railway Co. (Gt. Brit.) v. Venezuela, Feb. 17, 1903, Ralston, 394. * Dix (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 7; Henry (U. S.) v. Venezuela, ibid. 14, 22.

Bolivar Railway Co. supra; Williams v. Bruffy, 96 U. S. 176. The award of the arbitral tribunal (Goode, U. S. commissioner, dissenting) in Didier (U. S.) v. Chile, Aug. 7, 1892, Shield's Rep., Washington, 1894, pp. 41, 45, seems altogether erroneous. The claim was based on a contract for supplies furnished in 1816 to the successful revolutionary party of Gen. Carrera. Because the protocol was concluded between the Republic of Chile and the U. S., the Commission, on demurrer to the jurisdiction, dismissed the claim on the ground that until 1822, when Chile was first recognized by the U. S., "Chile was de jure under Spanish domination so far as concerned the U.S." See also Commissioner Goode's dissenting opinion, ibid. 46–51. See the awards of the U. S.-Mexican commission of 1868 under identical circumstances, Moore's Arb. 1243; Tchernoff (op. cit., 337) supports the Didier award.

4 Oteri claim v. Honduras, For. Rel., 1899, 352 (use of a steamer); Kummerow (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 561; Redler (Germany) v. Venezuela, ibid. 560; Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, ibid. 907. But it is not liable for military services rendered to the legitimate government in suppression of the very revolution which ultimately became successful. Mr. Blaine, Sec'y of State, to Mr. Patterson, April 7, 1890, Moore's Dig. VI, 624. It would seem that the Cuban government is liable for the acts of its revolutionary forces which established the government. China admitted its liability for the acts of the revolutionists which established the Republic.

* Hill (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1655; Hughes (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 2972; Hayball v. Peru, For. Rel., 1901, 427–430; Fowks

The successful revolutionists appear to be bound from the beginning of the revolution by the stipulations of national treaties, for the violation of which they will be held liable as successors to the titular government.1

Governments have on numerous occasions voluntarily made compensation, as a matter of policy rather than as a matter of law, for the injuries sustained by natives and foreigners during civil war, limited generally to the injuries inflicted by government forces, but sometimes extended to include the acts of both parties.3 If the nationals of any other foreign country were indemnified, the United States would probably insist upon equal treatment for American citizens.4

$97. Experience of Latin-America.

Various states of Latin-America, exposed as they have been to conv. Peru, For. Rel., 1901, 430-434; MacCord v. Peru, May 17, 1898, Moore's Dig. VI, 985-990. (These were cases of personal injury and unlawful imprisonment.)

1 Fowks claim v. Peru, supra.

2 Southern Claims Commission; British-American Commission of May 8, 1871; French-American Commission of Jan. 15, 1880. Indemnities were paid to loyal citizens and to foreigners who had not given aid and comfort to the Confederates. Haiti in 1902 paid claims resulting from the burning and pillage of Petit Goave, in 1902, by government forces. This has been Haiti's general practice.

3 France made payments for injuries during civil commotions in 1830, 1834, 1851, 1871 (Commune), 1882 (Saida), and 1893 (Aigues-Mortes). (Calvo, III, §§ 1291– 1293.) Belgium made similar payments in 1831, 1836, and in 1842, during which only the "needy ones" were provided for (Calvo, § 1294). Spain voluntarily paid French citizens at the end of the Carlist war in 1876. [Despagnet, 4th ed. 470; 15 Clunet (1888), 293.] The Khedive of Egypt compensated those sustaining injuries during the bombardment of Alexandria in 1882. (Moore's Dig. VI, 984; 71 St. Pap. 556; 74 St. Pap. 684.) Indemnities paid by Morocco for damages during disturbances in Morocco. (Despagnet, 470.) Latin-American states have occasionally by domestic commission voluntarily made compensation for injuries suffered during insurrections. Mexico in 1860, 51 St. Pap. 617; Hayti in 1884, 76 St. Pap. 302; Venezuela in 1868, 59 St. Pap. 1291; Venezuela in 1901, at the end of the Castro revolution (For. Rel., 1901, 550); Peru in 1871 for the injuries incurred in the sacking of Callao (Moore's Dig. VI, 973; 65 St. Pap. 1247); and Colombia on several occasions: In 1875 (Moore's Dig. VI, 981), seizure of certain steamers by insurgents; by certain decrees of 1877 and 1878 (68 St. Pap. 776; 69 ibid. 376); by law of Aug. 31, 1886 and Oct. 11, 1886 (77 St. Pap. 807, 810); by decree of Oct. 17, 1903 (98 St. Pap. 839). Mexico after the revolution of 1911 established a Consultative Claims Commission to adjudicate upon claims.

'Mr. Olney, Sec'y of State, to Mr. Thompson, Min. to Brazil, Jan. 20 and Oct. 10, 1896, Moore's Dig. VI, 892.

stant revolutionary movements, have on numerous occasions been subjected to liability by the countries of Europe for the injuries inflicted by insurgents or during civil war. This has been in part explained by the fact that the continuous state of revolutionary unrest takes these uprisings out of the category of fortuitious events, which the government is unable, by due diligence, to prevent.1 The European nations, in supporting claims arising out of these civil wars, regardless of whether insurgents or authorities caused the injury,2 have sometimes taken the ground that the responsibility of the state is due to a lack of diligence in preventing or suppressing uprisings. This ground could hardly be general, for "the highest interests of the state are too deeply involved in the avoidance of such commotions to allow the supposition to be entertained that they have been caused by carelessness on its part which would affect it with responsibility towards a foreign state."3 Moreover, if they were actually negligent, that fact would be extremely difficult to prove, and if the claims rested upon this ground alone few of them could be prosecuted to payment. As a matter of fact, the ground is, as a rule, advanced for plausibility alone, and assuming that the government is so organized that civil commotion is only a fortuitous event and not one invited by lack of proper political organization, the Latin-American republics would appear to deserve support in their endeavors to be relieved from the diplomatic pressure of claims resulting from injuries suffered in the legitimate operations incident to civil war, or caused by insurgents.

1 H. Arias in 7 A. J. I. L. (1913), 746. See also Lawrence's Wheaton, 176.

2 The following have been some of these occasions: France and Great Britain v. Argentine, 1858, 48 St. Pap. 28; 49 ibid. 1340; France v. Brazil, 22 Clunet (1895), 925; 1 R. G. D. I. P. (1894), 164, 2 ibid. (1895), 340; Belgium, France, and Italy v. Venezuela (civil war of 1892), 2 R. G. D. I. P. 344; Great Britain, France, Italy, Spain, Germany and U. S. v. Chile at the end of the 1891 civil war, 1 R. G. D. I. P. 164 and 171; 2 ibid. 338; 3 ibid. 476; 4 ibid. 416; Moore's Arb. 4862, 4930; Italy v. Brazil after war of 1893, Documenti diplomatici, Brasile reclami italiani, Dec. 6, 1894; 4 R. G. D. I. P. (1897), 403, 463; Italy v. Salvador, Feb. 4, 1876, 70 St. Pap. 493; Italy v. Peru, Nov. 25, 1899, Memoria de Relaciones Exteriores, 1900, 645; Spain v. Mexico, Article 4 of treaty of 1853, Tchernoff, 341; 28 Rev. de derecho, 310; Greece v. Salvador, 29 Clunet (1902), 656; Several powers v. Venezuela, in 1903, secured an admission of liability in the protocols, supra; Basdevant in 11 R. G. D. I. P. (1904), 362.

3

* Hall, 6th ed., 220; Fiore, § 673 et seq.; Pillet, Les lois de la guerre, 29; Wiesse, op. cit., § 14; Leval, § 103; Pittard, 281.

« AnteriorContinuar »