Abstract
The raging passions which civil wars unleash make them peculiarly difficult to bring under any sort of legal pattern. The bitterness lingers on for decades, often for generations. The result is disruptive of the international order as well as the domestic society which the war breaks in twain.1 International wars, on the other hand, from the time of Grotius to the beginning of World War I gradually yielded to the restraints of international norms. Explicit rules governing the conduct of the belligerents as well as third states were established finding consensus in such Declarations as those of Paris and London. In the elusive task of finding a law appropriate to civil conflicts the nineteenth century statesmen applied the norms of international wars to domestic conflicts as we have shown; whenever that is, the nature of the civil strife was of such proportions as to justify the “awful title of war.” As stated previously, belligerent recognition reached its apogee during the American Civil War and almost immediately thereafter ceased to be used by the major maritime powers. The cessation of its use presents a problem which in the civil law system is known as “desuetude.”2
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References
Eckstein comments that “…if internal war was commonplace in the nineteenth and early twentieth centuries, it is practically the essence of contemporary political life.” He reports that according to a search of The New York Times there are well over 1,000 unequivocal examples of civil wars, riots, turmoils, organized terrorism, mutinies, and coups d’état since World War II. Internal War 3 (1964).
While the civil law system is a frame of reference for international law the concept of desuetude is apparently unfamiliar to the latter.
This statement is particularly true of the common law countries. For instance American courts observe the rule that only the legislature can abrogate a statute. District of Columbia v. Thomson, 346 U.S. 100, 113 (1953). Many obsolescent statutes remain on the statute books in the United States. For a consideration of some of these unused laws which average citizens violate every day see Hussey, “Twenty-Four Hours of a lawbreaker,” 160 Harper’s Magazine 436 (1930). Cf. also Baker, “Legislative Crimes,” Minn. Law Review, xxiii,135(1939).
Arnold D. McNair, “The Law Relating to the Civil War in Spain” 53, Law Quarterly Review 484 (1937).
See Chapter III above.
Lauterpacht, Recognition in International Law 177, n.l. (1947) calls attention to Bolivia’s recognition of the Chilean insurgents as belligerents in 1891. 95 State Papers (1891), Chile, no. 1. In 1869 Peru recognized the belligerency of the Cuban insurgents. Rougier, Les Guerres civiles et le droit des gens 400 (1903). Lauterpacht was unable to produce unequivocal examples of belligerent recognition after 1865. The several examples he cites of the British practice from 1865 to 1885 (Venezuela in 1871 and 1879, Colombia in 1885) are actually examples of cases in which the various legal advisers to the Crown indicated that insurgents should be given belligerent rights provided they established and maintained effective blockades. Op. cit., 180 and support documents on pages 202-214. There is no evidence that effective blockades were actually established.
See Chapter IV a bove.
See Wyndham L. Walker, “Recognition of Belligerency and Grant of Belligerent Rights,” Transactions of the Grotius Society, xxiii, 179 (1937); Hans Wehberg, La guerre civile et le droit international Académie de Droit International, 66, Recueil Des Cours 186, (1938).
Moore’s Digest i, 200-205; Whiteman, Digest, ii, 501-503; Hackworth, Digest, ii, 320-327.
Moore, Digest, i, 193-200.
Ibid., 194-197.
Ibid., 198.
Ibid., 198-199.
Professor W. Wilson did much to focus scholarly attention on insurgency. See in particular his “Insurgency and International Maritime Law,” AJIL, i, 46 (1907).
Norman Padelford, “International Law and the Spanish Civil War,” AJIL, xxxi, 230 (1937)
Ibid., 226,230.
New York Times, November 23, 1936, p. 1.
Padelford, loc. cit., 227; Wehberg, Civil War and International Law 172-177, (1938); Lewis le Fur, La Guerre Civile d’ Espagne et le Droit International 388 (1936).
Walker, loc. cit., 179.
Morton A. Kaplan and Nicholas Katzenbach, The Political Foundation of International Law (1961), 111.
Whiteman, Digest, ii, 515; Wehberg, loc. cit., 177; Jessup, “The Spanish Rebellion and International Law,” Foreign Affairs, xv, 263, 273; (1937).
O’Rourke, “Recognition of Belligerency and the Spanish Civil War, xxxi, AJIL, 389, (1937); De Visscher, Theory and Reality in Public International Law 236-37 (1957).
Wehberg, loc. cit., 172.
Ibid., 177; Le Fur, op. cit., 388.
Whiteman, Digest, ii, 516-17; Padelford, loc. cit., 7-20, 23-4.
Parliamentary Debates, House of Commons, vol. 328, p. 389.
See N. Politis, Neutrality and Peace 80; (1935) Pitman Potter, “Neutrality,” 1955), AJIL, 1, 102; Friedmann, The Changing Structure of International Law 347 (1964); R. R. Wilson, “Some Current Questions Relating to Neutrality,” xxxvii, AJIL, 654-56; Nils Orvik, The Decline of Neutrality, passim (1937).
Kormarnicki, “The Place of Neutrality in the Modern System of International Law,” in Académie de Droit International de La Haye, Recueil des Cours, IXXX, 401 (1952).
See Borchard and Lage, Neutrality for the United States, especially pages 1-59; Nils Orvik, Ibid. passim; and Pitman B. Potter, loc. cit.
Alfred Verdross, “Austria’s Permanent Neutrality and the United Nations Organization, AJIL, 1, 61–68 (1956).
Quoted in AJIL, xxxv, 348.
Lauterpacht suggests that the Spanish War had all the characteristics of international war and this was the principal reason why the powers failed to grant belligerent recognition although in that struggle all the requisite conditions were present. Op. cit., 184.
Falk, op. cit., 225.
Ibid.
See contra: Wright, “Subversive Intervention,” AJIL, liv, 529 (1960).
There are brief references to the subject in Friedmann, Changing Structure of International Law 123 (1964); de Visscher, Problèmes d’ Interprétation Judiciaire en Droit International Public 247 (1956) Falk, “International Law of Internal War.” in Rosenau (ed) International Aspects of Civil Strife. 239 (1964); McNair, Law of Treaties (2nd) 516-548 (1961).
It is a phenomenon of the American legislative experience that laws are rarely repealed, see Johnsen, Law Enforcement 340 (1930). Arnold explains this: “Most unenforced criminal laws survive in order to satisfy moral objections to established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.” The Symbols of Government 160 (1935). On the other hand Arthur Bon-field, “The Abrogation of Penal Statutes by Non-enforcement,” Iowa Law Journal, il, 389-440 (1961) discovers that there are judicially imposable bars to the application of long-unenforced statutes.
Ethiopia v. South Africa; Liberia v. South Africa, AJIL, lxi, 154 (1967).
See Chapters I & II supra.
Loc. cit., 239.
“International Law and the Present War,” Mod. L. Rev. iii, 177, 179-180 (1940)
Digest 3.32.1. For statements of a similar nature see Institutes IV. 4.7. & Code I. 17.1.10. The rule was later incorporated by Justinian. See Institutes I. 2. II. It would appear that Trajan advised Pliny to apply desuetude at least retrospectively. See Pliny, Epistles 10. 114-5 translated by Schiller, “Custom in Classical Roman Law.” Virginia L. Rev., xxiv, 268, 280 n. 69 (1938).
Bonfield, op. cit., 396. Vinegradoff is of the opinion that the doctrine of desuetude was probably recognized by Greek Law. See Outlines of Historical Jurisprudence, v. 2, p. 80 (1920).
Bonfield, op. cit. 397-398.
According to Erskine, I. i, 45 “…non-usage is but a negative which cannot constitute custom — there must be some positive act that may discover the intention of the community to repeal it.” Quoted by Phillips, op. cit., 262.
Phillips, op. cit., 261.
1931 S.L.T. 456, 568.
Desuetude is not generally recognized in American and English law. See excellent summary of English and American practice in Bonfield, op. cit., 389, 405-440. While Bonfield concedes that the rule in England and the United States is as stated, he argues ingeniously that in the United States certain constitutional provisions such as the Equal Protection and Due Process clauses may in fact tend to abrogate long defunct laws. But see contra: District of Columbia v. Thompson 346 U.S. 100, 113 (1953) as an American affirmation of the nonexistence of a rule of desuetude. In this case the Supreme Court upheld the Acts of Congress of 1872 and 1873 governing the District. The particular provision of the Acts which was contested was that which required District restaurants to serve Negroes, although this provision had not been enforced over the years because of administrative reluctance. The Court dismissed the argument for desuetude, reasoning that “the repeal of laws is as much a legislative function as their enactment.”
Bonfield relying on F. C. von Savigny’s System of the Modern Roman Law (Holloway translation, 1867) pp. 35, 138, 143 and 157. Other criteria for desuetude suggested by the German jurists: “failure to enforce should be found in a plurality of uniform and uninterrupted acts throughout a long period; failure of enforcement must not rest on error, but must be reasonable, open and notorious; people must have been aware of the unenforced statute which inconsistent and established practice contravened. Op. cit. 398-399.
See McNair, op. cit. 518 for tests indicating when a treaty has become void because of nonuse.
Note, “Judicial Abrogation of the Obsolete Statue,” Harv. L. Rev. 1181 (1951).
LeBrun, La Coutume, par 5219-32 (1932).
For comments on the difficulty of applying prescription, either extinctive or acquisitive, see Lauterpacht, op. cit. 427-429; Rousseau, Principes généraux du droit public, t. 551-4 (1944)
Insurgency and belligerency differ principally in that under the status of the former the contestants are prevented from carrying on war-like activities on the high seas against outside powers, which the latter permits. For useful comparisons between the two see Padelford, International Law and Diplomacy in the Spanish Civil Strife 307 (1939); R. R. Wilson, “Recognition of Insurgency and Belligerency.” Proceedings, AJIL 136 (1937; W. W. Wilson, “Insurgency and International Maritime Law.” 1 AJIL 46 (1907); McNair, “The Law Relating to the Civil War in Spain,” Law Quarterly Rev., liii, 471 (1937); Lauterpacht, op. cit., 270-290.
See note 49, supra. A search of the records reveals that in none of the numerous post-World War II civil conflicts such as Cyprus, in Cuba, in Vietnam, in the Dominican Republic or in the Congo was belligerent recognition extended. In these situations intervention was substituted. It is highly dubious that intervention is governed by clearly defined rules of international law. It is obvious that intervention and any rule of law requiring a measure of impartiality or neutrality such as is required in belligerency or insurgency are antithetical.
Although insurgent recognition, too, has begun to decline since the Spanish Civil War yielding to intervention as the modality for dealing with civil conflicts.
Including Falk, op. cit., 224 and Lauterpacht. op. cit., 176.
Including Bishop International Law (2nd) 238-243 (1962) and Briggs, Law of Nations, (2nd) 991 (1952).
Friedmann op. cit. 133; Mac Gibbon, “The Scope of Acquiescence in International Law,” xxxviii, BYIL, 185, de Visscher, op. cit., 132. The application of desuetude in any system of law creates confusion unless the rule is clearly replaced with another. Scholars have assisted in the “confusion” by refusing to accept insurgency as a status. Whereas belligerency granted to both contestants the full rights of war both on land and on the high seas, insurgency restricts the contest to the land area and the adjacent seas, it would appear that insurgency is commendable as a more acceptable device for the control of violence. International lawyers should have supported the status of insurgency as a substitute for belligerency since it restricted the zone of warlike activities. The status of belligerency was easier to come by since “war” and “neutrality” had already become institutionalized by 1861 and belligerency adapted these to civil conflicts. Insurgency had no such ready-made status, and it became more difficult for students of law to map out its boundaries.
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© 1971 Martinus Nijhoff, The Hague, Netherlands
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Oglesby, R.R. (1971). The Decline of Belligerent Recognition: Desuetude in International Law. In: Internal War and the Search for Normative Order. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9205-7_7
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