Abstract
Technically different from military expeditions, which are characterized by some kind of organization, is the practice of private individuals to cross the frontiers of their own state, either singly or in greater numbers, in order to join the forces of a belligerent power or to participate in a foreign civil war. As in the case of military expeditions, however, these persons are nationals of a state which is on peaceful terms with the government against which they enlist, thus posing the interesting question whether the former has the obligation to prevent their departure. Largely because these individuals presumably join the foreign force without the intervention and compulsion of their government, international practice has referred to them as volunteers. But, since recent events unmistakably demonstrate that these volunteers are used by states as instruments of aggression/their impact upon the peace and security of mankind can no longer be ignored.1
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References
In October and November, 1956, when Israeli forces invaded Egypt, and France and Great Britain joined them, the Soviet Government threatened to permit “volunteers” to act in behalf of Egypt. See Q. Wright, “Intervention, 1956,” Am. J. Int. L., Vol. 51, pp. 257, 259 (1957).
N. J. Padelford, International Law and Diplomacy in the Spanish Civil Strife, p. 74 (1939).
For a treatment of this matter, see I. Brownlie, “Volunteers and the Law of War and Neutrality,” Int. & Comp. L.Q., Vol. 5, pp. 570–580 (1956).
Hague Convention No. V, Art. VI. For text, see W. M. Malloy, Treaties, International Acts, Protocols and Agreements between the United States of America and Other Powers, Vol. 2, p. 2298 (1910).
Hague Convention No. V, Art. IV. For text, see W. M. Malloy, Treaties, International Acts, Protocols and Agreements between the United States of America and Other Powers op. cit., Vol. 2, p. 2298 (1910).
See also A. C. Raja Gabaglia, Guerra Direito Internacional, p. 321 (1949).
This was fully discussed in Chapter IV, supra.
J. Stone, Legal Controls of International Conflict, p. 384 (1954).
Cf. P. E. Corbett, Law and Society in the Relations of States, pp. 242–243 (1951).
As quoted in C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 3, p. 2306 (2d ed., 1945).
D. P. Myers, “Contemporary Practice of the United States Relating to International Law,” Am. J. Int. Law, Vol. 54, pp. 632, 656 (1960).
E. de Vattel, Le Droit des Gens, bk. III, ch. XV, sec. 230 (Transi. by C. G. Fenwick, 1916).
This apparently was at one time the position of the United States, as seen in the Rules of Land Warfare, 1917, No. 400, note 1. Quoted in C. C. Hyde, op. cit., Vol. 3, p. 2306 n. 3.
See the note of Secretary of State Knox to the Mexican Chargé d’Affaires, June 7, 1911. G. H. Hackworth, Digest of International Law, Vol. 7, p. 410 (1943).
Cf. A. Rougier, Les Guerres Civiles et le Droit des Gens, p. 418 (1903).
I. Brownlie, Les Guerres Civiles et le Droit des Gens, p. 579 (1903) op. cit.,
Cf. H. Lauterpacht, International Law and Human Rights, ch. 17 (1950).
For text of the Declaration, see Am. J. Int. L. Supp., Vol. 43, p. 127 (1949).
For text, see Conference on Central American Affairs, Washington, December 4, 1922 — February 7, 1923, p. 287 (1923).
General Treaty of Peace and Amity of Central American States, February 7, 1923. Italics supplied.
Convention with Other American Republics, February 20, 1928, 46 Stat. 2749, T.S. No. 814. For text, see The International Conferences of American States 1889–1928, p. 435 (J. B. Scott ed., 1931).
Convention with Other American Republics, February 20, 1928, 46 Stat. 2749–50. See also L. A. Podesta Costa, “La Revisión de la Convención Interamericana sobre Derechos y Deberes de los Estados en caso de Luchas Civiles,” Inter-Amer. J. Y.B. 1949, p. 9 (1950).
Pan American Maritime Neutrality Convention, February 20, 1928, 47 Stat. 1889 – 94, T.S. No. 845. For text, see The International Conferences of American States 1889–1928, p. 428 (J. B. Scott ed., 1931).
For text, see Am. J. Int. L. Supp., Vol. 34, p. 9 (1940).
U.N. Treaty Ser., Vol. 23, I, No. 345.
Foreign Relations Act, 18 U.S.C. sec. 959 (a) (1952). It would seem that the “Flying Tigers,” organized and recruited by Colonel Chennault in the United States for the war of China against Japan, was a violation of this provision as well as of the neutrality of the United States.
N. J. Padelford, International Law and Diplomacy in the Spanish Civil Strife, p. 186 (1939).op. cit.,
p. 185 (1939) Ibid.,
p. 185 (1939) Ibid., n. 25.
33 & 34 Vic., c. 90.
33 & 34 Vic., c. 90, sections 4–7. In 1940, following the League of Nations Resolution, permission was granted to British subjects to enlist in the Finnish Forces fighting against the Soviet Union. See I. Brownlie , pp. 579 (1956)op. cit.,
For text, see N. J. Padelford, op. cit., p. 317.
For text, see F. Deák and P. C. Jessup, A Collection of Neutrality Laws, Regulations and Treaties of Various Countries, Vol. I, p. 603 (1939).
Annual Digest 1935–1937, p. 278 (1941).
Ibid.
For text, see F. Deák and P. C. Jessup, op. cit., Vol. 1, p. 566 (1939).
Law on Defense of Peace, December 16, 1950. For text, see Am. J. Int. L. Supp., Vol. 46, p. 99(1952).
It is conceded, however, that the enactment of this legislation is not due to any duty imposed by international law, but is rather a matter of convenience to avoid external complications. See in this connection L. A. Podestá Costa, Derecho International Público, Vol. 2, pp. 172–173 (3d ed., 1955).
P. C. Jessup, A Modern Law of Nations, p. 200 (1947).
Professor Julius Stone persuasively argues this point. See J. Stone, (1954) op. cit., p. 389. A. Rougier said sometime ago that though the formation of corps of volunteers is surely due to private initiative and not to state initiative, its importance is such that it is impossible to keep it from the knowledge of the government and when this is the case, it must be prevented.
See A. Rougier, op. cit., p. 418.
J. Stone, op. cit., p. 389. For the boldness with which governments act, see note 1, supra.
Thus, Article 4 of the Draft Declaration on Rights and Duties of States, prepared by the International Law Commission of the United Nations, provides: “Every State has the duty to refrain from fomenting civil strife in the territory of another State, and to prevent the organization within its terrritory of activities calculated to foment such civil strife.” International Law Commission, Report, U.N. General Assembly, Official Records, Fourth Session, Supp. No. 10 (A/925), (1949). For text, see Am. J. Int. L. Supp., p. 16 (1950).
This would be an aggression which is not an armed attack. See “The Question of the Definition of Aggression,” Memorandum submitted by Ricardo J. Alfaro to the International Law Commission of the United Nations, A/CN.4/L.8, May 30, 1951.
Note from the Spanish Ambassador to the Secretary of State, U.S. Foreign Rel., 1938, Vol. I, p. 180 (1955).
U.N. General Assembly, Official Records, Fifth Session, Sup. No. 20, p. 1 (A/1775) (1951). It should be noted, however, that this conclusion could be reached because the original movement of North Korea into the Republic of Korea had already been characterized as an aggression.
For text, see U.N. General Assembly Official Records, Sixth Session, Supp. No. 9 (A/1858) (1951); Am. J. Int. L. Supp., Vol. 45, pp. 103, 121 (1951).
D. P. Myers, op. cit., pp. 632, 656.
N. J. Padelford, op. cit., pp. 73–77.
In fact, the Armistice Agreement signed on July 27, 1953, was signed between the United Nations Command, on the one hand, and the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other. For the text of the Armistice, see Am. J. Int. L. Supp., Vol. 47, p. 186 (1953).
For text, see note 4, supra.
See U.N. General Assembly, Official Records, Fifth Session, First Committee, p. 401 (1950).
U.N. Charter, art. 2, paragraph 5. This argument was maintained by the Turkish Delegate and supported by other representatives. See U.N. General Assembly, Official Records, Fifth Session, First Committee, p. 405 (1950).
A. P. Higgins, The Hague Peace Conferences and Other International Conferences Concerning The Law and Usages of War, p. 280 (1909).
See in this connection the remarks of the Cuban Representative. See U.N. General Assembly, Official Records, Fifth Session, First Committee, pp. 409–411 (1950).
The amount was estimated at 268,000 Chinese troops. Ibid., p. 410.
For development of this thesis, see J. Stone, op. cit., p. 411.
See U.N. General Assembly, Official Records, Third Session, First Committee, 172d Meeting, p. 271 (1948).
Quoted in D. P. Myers, op. cit., p. 657.
“Volunteers” have been adequately described by the Delegate of Israel to the First Committee of the General Assembly as “war by power of attorney… [which] has become a feature of strategy since the end of the Second World War.” See Complaint of the Union of Burma regarding aggression against it by the Government of the Republic of China, U.N. General Assembly, Official Records, Seventh Session, First Committee, 608th Meeting, p. 669 (1953).
For some of these views, see U.N. General Assembly, Official Records, Fifth Session, First Committee, pp. 415–419 (1950). See also W. W. Kulski, “Soviet Comments on International Law and International Relations,” Am. J. Int. L., Vol. 45, pp. 556, 558 (1951).
The International Law Commission of the United Nations has strongly recommended that a definition of aggression should include the sending of volunteers “to engage in hostilities against another State.” For text, see note 45, supra.
For text, see note 44, supra.
See J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression, p. 20, n. 11 (1958).
See note 5, supra.
L. A. Podestá Costa, op. cit., Vol. 2, p. 173.
U.N. Charter, art. 2, paragraph 5.
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© 1962 Martinus Nijhoff, The Hague, Netherlands
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García-Mora, M.R. (1962). Recruitment and Departure of Volunteers. In: García-Mora, M.R. (eds) International Responsibility for Hostile Acts of Private Persons against Foreign States. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0722-6_5
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