Table Of ContentINTERN 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
