INTERN AL WAR AND THE SEARCH FOR NORMATIVE ORDER INTERNAL WAR AND THE SEARCH FOR NORMATIVE ORDER by ROSCOE RALPH OGLESBY Professor of Government Florida State University I I MARTINUS NI]HOFF I THE HAGUE I 1971 © I97I by Martinus Nijholt, The Hague, Netherlands Softcover reprint oft he hardcover 1st edition 1971 All right reserved, including the right to translate or to reproduce this book or parts thereof in any form ISBN 978-94-011-8485-4 ISBN 978-94-011-9205-7 (eBook) DOl 10.1007/978-94-011-9205-7 PREFACE The present study is concerned with the development and the applica tions of legal norms to situations of civil strife. It also deals in a less intensive way with problems of adjustment of these norms when the ambiance of the system changes. In particular it deals with the con cept of belligerent recognition, a standard well-suited to the needs of the international systeum nder a balance of power arrangement and to what extent this norm, which became fully developed during the nineteenth century, has been altered to meet the needs of the new international system which has been called a loose bipolar system. Revolution has been a classic theme of social and political thinkers throughout history. Some have regarded revolutions as completely unjustifiable, while others view them as a force for progress, if not the sole agent for major social adjustment. Political evolutionists re gard revolutions which erupt in social violence as necessary social con ditioning, as a way of selecting the political elite. Those who regard social violence as healthy and good, proceed to layout prudential rules for the conduct and successful conclusion of revolutions. Those who regard social violence as unhealthy and bad, tend to stress the norms of "law and order"; and to hurl at revolutionists the imprecations of a moral law which enjoins necessary obedience to authority. The present treatise pursues none of these interesting possibilities. The perspective of this monograph is normative, normative in the sense, that is, of seeking clarification of the legal standards which the international community imposed on contestants in a civil conflict in one given era - in an era when the classical balance of power system was the dominant modality of the international system. It is not normative in the sense of being judgmental, or of assessing the rightness or wrong ness of either side in a particular conflict, or whether conflict (violence), generally speaking, is either good or bad. VI PREFACE The Center for International Studies at Princeton invited a group of social scientists to deliver papers on the subject of internal war from the viewpoint of their theoretical biases. Included were a functional theorist, an action theorist, a communications theorist, theorists of group dynamics, and a theorist on attitude formation, among others. The object was to have the participants use their theoretical tools for elucidating the inchoate problems of civil strife. Their convener, Professor Eckstein, concluded that: Whatever their merits in other respects, there is no use pretending that the essays here achieve the end intended. Some of them avoid any substantial, direct confrontation of the subject; others attack it, but without any considerable use of social science theory. Indeed, the greater the author's concern with internal war itself, the less he seems to use social science equipment. (Eckstein, Internal Ward) After some pondering on the reasons for this, Professor Eckstein concludes that there has not been enough processing of the raw data of social violence, not enough transference of the basic empirical data into what he terms "equivalence" or suitability for use by theoretical tools. In the case of internal war, as in the case of many other concrete subjects in con temporary social science, such processing is conspicuously lacking. In conse quence, social theorists confronted by the subject are understandably at sea - like shoemakers working not on leather but on ox. (Ibid., 6) He suggests that an enormous amount of work needs to be done to transfer concrete subjects into suitable material for the application of theoretical schemata. Civil conflicts do not lend themselves readily to quantification because of the near impossibility of securing repetitive data. Nor do conditions prevalent in a civil war invite the use of rec ognized and trustworthy social and political techniques such as so cial-survey analysis, or field work. These jconditions, among others, explain the use of the normative, analytical method in this study. Per haps it is not too immodest to hope that the information here presen ted will be helpful as processed data to socia*heorists with more so phisticated analytical tools. The thrust of this inquiry is with the American Civil War. This War was unquestionably the critical incident for the development of a full and complete law of civil conflict under the balance of power system. Previous civil wars such as the American Revolution, and the Spanish Colonial Wars for Independence provided the needed experi ential background for the development of the norms governing such PREFACE VII conflicts, but it remained for the American Civil War to give them definitive form. All of the requirements for a norm of belligerent re cognition were fully spelled out in that War, and nothing further was added to the concept by any civil uprisings which occurred subse quently. The War therefore provided the classic case for a study of civil wars under a balance of power international system. The require ments of the international system then prevailing necessitated that wars be limited in geographical extent as well as in number of state-con testants. To this end the international community circumscribed the belligerents by a clearly defined legal norm of neutrality. Non-interference in the internal affairs of another nation was the distinguishing characteristic of the balance of power system. Sovereign ty and independence were the principal keys to the legal code of the prevailing order. Appeals against their encroachment were usually phrased in terms of the value of the norm of national independence. The law of belligerent recognition, with its requirements for non-inter ference and neutrality, was in accord with the requirements of the prevailing norms governing international wars. (Kaplan and Katzenbach in The Political Foundations of International Law, 36ff, remind us that the doctrine of non-interference had its bite against the larger European nations, but for reasons necessary for the system the rule of sovereignty and independence and non-interference was applied to smaller European and American nations. In other parts of the world intervention was not system disturbing and could be tolerated.) The law of belligerent recognition perfected during the American Civil War was peculiarly appropriate for that era, for it reflected the normative values of the international community of the time - that wars not only should be limited to the contestants, but that they should be fought for limited objectives. This required a minimum of interfer ence by outside powers, whether the war was international in charac ter or civil. Legal systems tend to reflect the social order that they attempt to regulate. The international legal system is no exception to this rule. International law is peculiarly sensitive to the social and poli tical demands of the international order since international law was until recently almost completely the product of custom, a slow and gradual process of formulation of legal rules reflecting a considerable degree of consensus in community demands. In the first two chapters a considerable amount of attention is given to the slow process of developing the elements of the customary law. An examination of the practice of states in situations warranting VIII PREFACE belligerent recognition in situations of civil strife begins with the Ame rican Revolution and proceeds through various vicissitudes until it reaches its apogee in the American Civil War. During the same period of time there began to be developed what appeared to be an alternate to belligerent recognition - namely, recognition of insurgency. An examination of the historical record of civil wars prior to 1861 indicates that insurgency was applied to those situations where there was absent any considerable element of maritime warfare, the critical difference between belligerency and insurgency being the presence of considerable maritime activity in the former and its relative absence, except for activity in the territorial waters, in the latter. But what appeared to be a developing system of alternate recognition based on the magnitude of the conflict for situations of civil strife, did not in fact develop that way. After 1865 recognition of insurgency became a SUbstitutionary rule for belligerent recognition, virtually supplanting the latter after the American Civil War. Recognition of insurgency still suited the international system of the nineteenth century. In fact it suited the inter national order much better than did the more comprehensive belli gerent recognition, since insurgency was more restrictive on the ac tivities of the factions in a civil conflict and therefore presented much less of a target for intervention by outside powers. Since insurgency limited and restricted the activities of the contestants more severely than did belligerency, the international community turned to the use of insurgency as a substitute for belligerency. Insurgency and belligeren cy are not therefore two alternative sets of rules to be applied at will by the affected states, but rather two successive norms of law, insurgen cy succeeding belligerency as the standard most serviceable to the in ternational community. The rules subsumed under the rubric of belligerent recognition are then examined in broad outline under such headings as the criteria for recognition, the right of recognition, how recognition is granted by the parent government and by outside states, to what extent insurgents are bound by the treaty commitments of the es tablished government. Some attention is given to the controversy between the United States and Great Britain over the timing of the recognition, only to demon strate that in the end there was consensus as to the requirements of the law. Immediately following the American Civil War recognition of belli gerency went into desuetude. It did so because insurgency better func tioned in the prevailing international system; and both insurgency and PREFACE IX belligerency declined during the twentieth century, because the char acter of the system changed and neither insurgency nor belligerency was an entirely suitable norm for the new system. "The task of inter national lawyers and statesmen alike is to weed, to prune, to create - not to cling to outmoded solutions of another era and bemoan the pass ing of international law as they do so." (Kaplan and Katzenbach, Polit icalFoundations, 29) Desuetude, a familiar term in the civil and Roman law, but generally unknown to international law, is examined as a possible tool for discarding unwanted and unused norms. In the ab sence of a fully developed legislative process at the international level, desuetude would appear to be one useful device in international law for the weeding and pruning of obsolete international legal standards. In the final chapter attention is given to the problem of intervention in civil conflict. This appears to be the modality for dealing with such conflicts in the present international system, a system which supplanted the balance of power system of the last century, and which Kaplan and Katzenbach call the "loose bipolar system." A brief and preliminary examination is given to the principal internal wars of the post-World War II period with the object of discovering emerging patterns of a law which may be superseding and replacing both insurgency and belli gerency, the outmoded norms. This examination is done in the frame work of an analytical model. The model divides civil wars according to three basic objectives of the insurgents and relates interventions by outside powers to the avowed purposes of the revolutionists. The model attempts to be predictive, if not as to what can be expected in each particular future internal war, at least as to what the broad outlines of a future international law of civil strife might be. Since the underlying assumption is that the law of the ninteenth century was suitable to and resulted from the requirements of the prevailing international system, what law, then, is suitable for, appropriate to, and even required to meet the demands of the present system? An attempt is made in the concluding chapter to give a preliminary answer to this question. Thanks are due the Florida State University for a faculty research grant which permitted me to spend some time in the Library of Con gress to begin the research and writing. I, like so many students of international law, owe so much to Professor Robert R. Wilson of Duke University, beloved teacher and friend, who started me on the chal lenging task of exploring the law of civil strife. Professor Quincy Wright has offered suggestions for improving the manuscript, and has offered me encouragement as well as advice. Professors Richard Falk, of x PREFACE Princeton University, John Norton Moore, of the University of Vir ginia, Tom Farar of Columbia University, and Wolfgang Friedmann of Columbia University have been continuing sources of inspiration to me by their insights into the problems attending internal wars. Their ideas have shaped the content of this volume, although they are in no way accountable for its many shortcomings. Many ideas have been gleaned over the past few years from my grad uate students who have belabored with me the subject under con sideration in graduate seminars on civil wars. My thanks are due to the Department of Government of Florida State University for providing the secretarial and other necessary assistance in the preparation of the manuscript. Tallahassee, Florida April,1970 T ABLE OF CONTENTS PREFACE V CHAPTER I. HISTORICAL DEVELOPMENT OF BELLIGERENT RECOGNITION I I. The American Revolution 1 2. Spanish Colonial Wars for Independence, 1810-1823 8 CHAPTER II. PRE-I861 CIVIL CONFLICTS WHICH INDICATED A NEED FOR THE STATUS OF INSURGENCY 18 I. The Greek Insurrection Against the Sublime Porte, 182I 18 2. The Polish Uprising, 1830-31 24 3. The Canadian Insurrection, 1838-39 25 4. The Revolution of Texas, 1836 26 5. The Vivanco Insurrection in Peru, 1856-1858 27 CHAPTER III. METHODS OF ACCORDING BELLIGERENT RECOGNITION 33 I. The American Civil War and Development of the Concept of Belligerence 33 2. Nature and Form of Recognition: By Third States 34 3. Recognition by Foreign States 35 4. Nature and Form of Recognition: by the Parent Government 40 5. The Source of Recognition 44 CHAPTER IV. CRITERIA FOR TIMING A GRANT OF BELLIGERENCE 48 I. The American Argument for the Appropriate Timing of Belligerent Rights 48 2. The British Position 50 3. The View of Scholars and Publicists on the Matter of Recog- nition 52 4. The Geneva Arbitrations and the Question of Premature Recog- nition 54 5. Criteria for Timing a Grant of Belligerent Recognition 57 6. The Question of a Right of Recognition 62 7. May the Established Government Demand Belligerent Recog- nition as of Right? 69