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Recognition of Belligerency and the Spanish War

Published online by Cambridge University Press:  12 April 2017

Vernon A. O'Rourke
Vernon A. O'Rourke*
Affiliation:
St. John's University
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Extract

Few problems raised by the Spanish civil war are more interesting than those growing out of the fact that a state of war, in the legal sense, does not exist; belligerent rights have been accorded to neither of the contestants by third Powers. Consequently, on January 8 of this year, Germany turned over to the rebel authorities two Spanish loyalist vessels captured in retaliation to an “act of piracy”—an indictment earned by the loyalist government for its seizure of the German freighter, Palos. One may feel justifiably surprised that a government almost universally recognized as legitimate can be charged with piratical activities. Further reflection reveals that the Spanish situation presents many more questions concerning the rights and duties of the contestants as against third parties. In the absence of the recognition of belligerency, what are the rights of loyalist and rebel ships on the high seas? In the territorial waters of Spain? May the fascist or socialistic factions establish blockades? What are the powers and validity of their prize courts? Who is answerable for the illegal acts of the rebels should they lose—or be victorious? What claims will the Spanish Government have as against third Powers should one or the other prove successful? May the loyalist authorities by simple decree close to neutral trade the ports held by the insurgents? Moreover, how would all of these matters be affected if the maritime Powers of the world were to recognize the existence of a state of war, i.e., belligerency, in Spain? And, finally, in view of the magnitude and duration of the struggle, is there any justification for withholding such recognition?

Type
Research Article
Information
American Journal of International Law , Volume 31 , Issue 3 , July 1937 , pp. 398 - 413
Copyright
Copyright © American Society of International Law 2012

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References

1 New York Times, Jan. 9, 1937.

2 At the present time the rebel warships are accorded some of the rights of war within the three-mile limit. (See below, pp. 399, note; 404.)

3 Though it is true that there is no requirement for specific recognition of belligerency of a recognized government, unless third Powers recognize the existence of a state of war by according to the insurgents a belligerent status, the parent State may not exercise, as against third States, rights of war on the high seas. (However, it is still free to act against neutral shipping found within its territorial seas.) See International Law Situations, Naval War College (1902), p. 79. In answer to questions of the Opposition in the House of Commons last November, Foreign Minister Anthony Eden accepted this view: “His Majesty’s Government have not thus far accorded belligerent rights at sea to either side in the Spanish struggle and have no present intention of according such rights. As a consequence, His Majesty’s ships will, should it prove necessary, protect British merchant ships on the high seas against interference by ships of either party engaged in the conflict in Spain outside the three mile limit.” (London Times, Nov. 24, 1936.) France adopted a similar stand: “Inside the three mile limit French merchant ships will submit to the control of local authorities under international law. But beyond that zone the French Government will permit no halting, visiting or seizure by either of the two Spanish fleets.” (New York Times, Nov. 25, 1936.)

4 Dana’s edition of Wheaton, International Law (1866), p. 35, note.

5 See also, The Prize Cases, 2 Black 635; Ford v. Surget, 97 U. S. 611 ff.; A. S. Hershey, Essentials of International Public Law and Organization, rev. ed. (1927), p. 203 ff.; Manley 0. Hudson, Cases and other Materials on International Law, pp. 161–162; J. B. Moore, Digest of International Law, I, p. 166 ff.

6 President Grant’s special message to Congress on June 13, 1870, refusing to recognize the belligerency of the Cuban insurgents. (Moore, Digest, I, p. 194.)

7 W., E. Hall, A Treatise on International Law, 8th ed. (1924), p. 39. Hershey is inclined to support this view: Such recognition does not follow as a matter of course when the facts are present but depends upon whether the neutral’s “own rights and interests are so affected as to require a definition of its own relation to the parties.” (Op. cit., p. 206.)Google Scholar

8 Hershey, op. cit., p. 204. See also, “Rights and Duties of Foreign Powers as regards the established and recognized governments in case of insurrection,” adopted by the Institute of International Law in 1900, in Scott’s Resolutions of the Institute of International Law (1916); McKinley’s message to Congress, Dec. 7, 1897, objecting to a joint resolution of Congress recognizing the belligerency of the Cuban rebels, Moore, Digest, I, p. 199. As far as the parent State is concerned, the belligerency of rebels is hardly ever expressly recognized. However, the nature of the actions adopted by the established government to suppress the revolt may constitute recognition by implication. (See Hall, op. cit., p. 43.)

9 Hershey, op. cit., p. 204.

10 Dana’s Wheaton, p. 36, note.

11 G., G. Wilson, International Law (1910), p. 41.Google Scholar

12 “If the revolt fails of success, still if actual war has been waged, acts of legitimate warfare cannot be made the basis of … responsibility.” (Underhill v. Hernandez, 168 U. S. 253.) See also, U. S. v. Rice, 4 Wheaton 246.

13 U. S. Foreign Relations, 1873, III, 336. See also,. Grant’s message of Dec. 6, 1869, dealing with the Cuban insurrection. (Moore, Digest, I, p. 194.)

14 T. D. Woolsey, International Law, 6th ed., rev. (1897), p. 292. See also, Wilson, op. cit., p. 40; Hall, op. cit., p. 39; Pitt Cobbett, Cases and Opinions on International Law (1913), Part I, p. 67; The Three Friends, 166 U. S. 1; Moore, Digest, I, pp. 188–189.

15 The Three Friends, 166 U. S. 1. See also, U. S. v. Palmer, 3 Wheaton 610, 643; The Santissima Trinidad, 7 Wheaton 283; The Prize Cases, 2 Black 635; Rose v. Himely, 4 Cranch 292; U. S. v. Yorba, 1 Wall. 412; U. S. v. Hutchings, 2 Wheel. c.c. 542; The Hornet, 2 Abbott 35; U. S. v. Baker, 5 Blatch. 6.

16 Art. IV, Sec. 2, Scott’s Resolutions of the Institute of International Law (1916).

17 Pitt Cobbett, op. cit., p. 289; G. G. Wilson, op. cit., p. 41; Thomas L. Harris, The Trent Affair (1896), p. 40. The Permanent Court of International Justice, in its Judgment No. 7, observed that the recognition of the Polish National Army by the Allies during the World War “cannot be relied on as against Germany which had no share in the transaction.” (Publications of the Court, Series A, No. 7, p. 28.)

18 Dana’s Wheaton, p. 374 ff.; Hall, op. cit., pp. 39–40; Rose v. Himely, 4 Cranch 239, 272; Moore, Digest, I, p. 165; T. Twiss, Law of Nations, 2nd ed. (1875), p. 500.

19 Ford v. Surget, 97 U. S. 610. Oppenheim is not so definite: “Such recognition may be granted by the State within the boundaries of which the civil war broke out, and then other States will in most cases, although they need not, likewise recognize a state of war ….” (McNair’s Oppenheim, International Law, 4th ed. (1926), Vol. II, p. 124.) The resolutions of the Institute of International Law of 1900 flatly refute this view: “… a third power is not bound to recognize insurgents as belligerents merely because they are recognized as such by the government of the country in which the civil war has broken out.” (Art. V, Sec. 1.)

20 This incident, however, is further complicated by the fact that Germany recognizes the government of the rebels. The loyalist forces are the rebels in her eyes and are unable to demand and exercise belligerent rights.

21 “A Status of Insurgency may be recognized when an insurrection with a political purpose has assumed the proportions of a war ’in a material sense,’ and when it seriously interferes with the exercise of sovereignty or with normal foreign intercourse.” (Hershey, op. cit., p. 201.) See also, Dana’s Wheaton, note, p. 377; Moore, Digest, I, p. 164; The Three Friends, 166 U. S. 1.

22 The principle is widely held that unrecognized belligerents have the right within the marginal seas to prevent their domestic opponent from obtaining war supplies from abroad. See Moore, Digest, II, pp. 1085–1086, 1089, 1112, 1118, 1119, 1120; Wilson, op. cit., p. 47; Hershey, op. cit., p. 203; Hall, op. cit., Sec. 5a; Westlake, op. cit., I, p. 56; U. S. Foreign Relations, 1893, p. 99. But the “existence of the power is restricted to the precise end to be accomplished.” In no case is the neutral vessel to be treated as an enemy. (International Law Situations, Naval War College (1902), p. 79.)

23 C., G. Fenwick, International Law, 2nd ed. (1934), p. 113. In 1895 Cleveland recognized the insurgency of the Cuban revolutionists and enjoined the observance of the neutrality laws. (Moore, Digest, I, p. 242.) His position was sustained in the case of The Three Friends, 166 U. S. 1Google Scholar.

24 Hansard, Parliamentary Debates (3rd ser.), clxiii, 1646. President Cleveland adopted a similar attitude in answer to Colombia’s attempt to close insurgent ports during the revolution of 1885: “An effective closure of ports not in the possession of the Government, but held by hostile partisans, could not be recognized… .” (Message to Congress, Dec. 8, Messages and Papers of the Presidents, Vol. X, p. 4911.) See also, Woolsey, op. cit., pp. 294–295.

25 Instructions to the American Collector of Customs, July, 1815, regarding the treatment to be accorded ships of South American revolutionists. (Moore, Digest, I, p. 170.) This view has become a part of international law: See Dana’s Wheaton, note, p. 377; The Ambrose Light, 25 Fed. Rep. 408; Hershey, op. cit., p. 331. Though England captured many American privateers during the Revolution before the colonies were recognized as belligerents, none of them was ever treated as a pirate. (Francis Wharton, Albany Law Journal, 13 (1886), p. 129.) For a complete treatment of this subject, see ibid., pp. 125–131.

26 New York Times, Nov. 25, 1936.

27 London Times, Nov. 24, 1936.

28 The Bulletin of International News, Royal Institute of International Affairs, Vol. XIII, No. 22, pp. 18–19.

29 Op. cit., Jessup, Philip C., “The Spanish Rebellion and International Law,” in Foreign Affairs, Jan., 1937, p. 271 Google Scholar.

30 W. B., Lawrence’s Wheaton, Elements of International Law (1863), Introd., cxxxivGoogle Scholar.

31 Hall, op. cit., note, p. 38. In fact, in 1806 and 1848 Congress went as far as to pass acts paying the captors or their representatives their share of the captures in advance. (Lawrence’s Wheaton, pp. 41–42.)

32 Message to Congress, March 8, 1822, Moore, Digest, I, 174. There appears to be a serious objection, however, to positing probability of success as a condition for recognition. In many cases it is almost impossible to forecast the ultimate outcome of war. At least such is the situation in Spain at this time.

33 Hansard, op. cit., clxii, 1566. “It has been the constant practice of European nations and of the United States to look upon belligerency as a fact rather than a principle.” (Francis Wharton, Digest of International Law (1886), Vol. I, p. 519.) “I am not aware that in this country any solemn proceeding, either legislative or executive, has been adopted for the purpose of declaring the status of an insurrectionary movement abroad, … Whether a civil war was prevailing in Peru is a question of fact, to be judged by the proofs… .” (Sec. of State Cass to the Peruvian Minister, Mr. Osma, with reference to the Vivanco insurrection in Peru, May 22, 1858. (S. Ex. Doc. 69, 35th Cong., 1st Sess., 24–25.)

34 Jessup, loc. cit., p. 267.

35 2 Black 666, 667.

36 97 U. S. 611.

37 96 U. S. 191.

38 Völkerrecht (1868), Sec. 512, Note 1. Vattel held that “when a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the state is dissolved, and the war between the two parties stands on the same ground in every respect as a public war between two different nations …” (Law of Nations (1853), p. 427.)

39 Neutrality of Great Britain during the American Civil War (1870), pp. 115–116. “…the concession of such (belligerent) rights may at a certain epoch in the strife, be claimed both in the interest of humanity and of neutral states.” ( W., O. Manning, Commentaries on the Law of Nations (1875), p. 298.)Google Scholar

40 Thomas, L. Harris, The Trent Affair, p. 40 Google Scholar. “But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations.” ( Dana’s, Wheaton, p. 374.Google Scholar) “If I understand the authorities correctly, there exists, not only the right, but also the duty, on the part of the United States to recognize the belligerency of the Cubans.” (Statement of Horatio S. Reubens concerning the Cuban revolt of 1895, in Tomas Estrada Palma’s Cuban Belligerency (1896), p. 32.)

41 The Three Friends, 166 U. S. 1.

42 U. S. v. The Ambrose Light, 25 Fed. Rep. 408. See also, Dana’s Wheaton, note, p. 35.

43 Elbert, Jay Benton, International Law and Diplomacy of the Spanish American War, p. 41. For similar opinions see: Hershey, Annals of the American Academy of Political and Social Science, Vol. VII, p. 450 Google Scholar; Moore, Forum, Vol. XXI, p. 288; Woolsey, American Foreign Policy, p. 25; Hall, op. cit., pp. 35–36. In a message to Congress, Dec. 7, 1875, President Grant implied that recognition of the Cuban rebels would have been forthcoming but “The insurrection has not possessed itself of a single seaport whence it may send forth its flag …” (Moore, Digest, 1, p. 197.) An extreme example of recognition is presented by the action of the Allies recognizing the belligerency of Czechoslovakia when the insurgents had no established territory under control. “If that be so, the inference might follow that it is quite immaterial whether the rebels possess fixed territory, have an organized government, or fight like civilized beings.” ( T., J. Lawrence, The Principles of International Law, 7th ed. (1923), p. 331.)Google Scholar

44 On Aug. 9 and 10 the loyalists declared a blockade of insurgent ports. (The Bulletin of International News, Vol. XIIL No. 5, p. 7.) On Nov. 17 General Franco announced a blockade of Barcelona. (Ibid., No. 8, p. 10.)

45 Ibid., No. 9, p. 36.

46 John, H. Latane, The Diplomatic Relations of the United States and Spanish America (1900), p. 56 Google Scholar.

47 25 Fed. Rep. 408.

48 Hershey, op. cit., p. 204.

49 And where the fact of the existence of war is in issue in the instance of complaint of acts committed within foreign territory, it is not an absolute prerequisite that the fact should be made out by an acknowledgment of belligerency, as other official recognition of its existence may be sufficient proof thereof.” (Underhill v. Hernandez, 168 U. S. 253.) See also, The Three Friends, 166 U. S. 1; O’Neill v. Central Leather Co., 87 N. J. Law 532, 94 Atl. 789.

50 Bulletin of International News, Vol. XIII, No. 4, p. 7.

51 New York Times, Sept. 9, 1936.

52 See texts in L’Europe Nouvelle, Sept. 26, 1936, Supplement.

53 Scott, Resolutions of the Institute (1916), p. 157. See also, Westlake, op. cit., I, p. 52.

54 Art. I, Pan American Convention on the Duties and Rights of States in the Event of Civil Strife, U. S. Treaty Series, No. 814.

55 See the forceful statement of Senor del Vayo, former Spanish Foreign Minister, at the League of Nations Assembly, Sept. 25, 1936. (New York Times, Sept. 26, 1936.) For similar opinions, see Alexandre Berenstein, La Rebellion Espagnole devant le Droit international, Geneva (1937), p. 2; The New Statesman and Nation, Dec. 19, 1936, p. 1016.

56 See text of law in this JounNAL, Supplement, Vol. 31 (April, 1937), p. 100.

57 The Bulletin of International News, Vol. XIII, No. 22, p. 7.

58 Ibid., p. 7, note 1.

59 Public Resolution No. 1, 75th Cong., 1st Sees.

60 New York Times, May 6, 1937.

61 The Bulletin of International News, Vol. XIII, No. 22, pp. 4–5.

62 66 New York Times, Feb. 17, 1937.

63 The Bulletin of International News, Vol. XIII, No. 22, pp. 8–9. (Russia, at the last moment, declined to take advantage of her right to participate in the patrol.) Officers of the patrolling vessels have no right of search or detention, but only the right to board, with a view to establishing identity. They have no executive powers and their duty is to verify the situation and report to their governments. (Ibid., p. 9.)

64 Ibid., p. 11.

65 “Main a un point de vue, l’accord tree aux Etats des obligations plus etendues que cella qui decouleraient del ’application du statut de la `neutrality.’ “ (Alexandre Berenstein, op. cit., p. 7.)

66 As early as Aug., 1936, Great Britain committed an act usually reserved only to States who have declared their neutrality upon the outbreak of war when she interned a loyalist seaplane which could not leave Gibraltar within twenty-four hours. (The New Statesman and Nation, Aug. 15, 1936, p. 218.)

67 London Times, Dec. 10, 11, 12, 13, 14, 1936.

68 Tomas, E. Palma, Cuban Belligerency, p. 22.Google Scholar Armistice is a word applicable only to belligerents. “It … cannot properly be applied to agreements between a government on the one side and rioters, brigands, or banditti on the other.” (O’Neill v. Central Leather Co., 87 N. J. Law, 532, 94 Atl. 789.) See also, H., W. Halleck, International Law, 4th ed. (1908), p. 339; Moore, Digest, I, p. 194.Google Scholar

69 The Bulletin of International News, Vol. XIII, No. 14, p. 48.

70 London Times, Jan. 9, 12, 13, 1937.

71 The Bulletin of International News, Vol. XIII, No. 22, p. 34.

72 Ibid., No. 19, p. 34.

73 Jessup, loc. cit., p. 274.

74 The Bulletin of International News, Vol. XIII, No. 8, p. 43.

75 New York Times, Jan. 31, 1937.

76 See the case of The Hornet, 2 Abbott 39.

77 See above, p. 402.

78 Whether a sovereign in suppressing a rebellion does so by regular law to be applied in the courts or by adopting the character of a belligerent assuming belligerent rights, “must be determined by the character of the act.” ( Rose, v. Himely, 4 Cranch 239.)Google Scholar

79 The Bulletin of International News, Vol. XIII, No. 5, pp. 7, 10.

80 For a similar opinion see Barrister, “Blockades and the Law,” in The New Statesman and Nation, Aug. 29, 1936, p. 281. It was contended by several neutral States, however, that the Spanish blockade was not real and effective. (Germany, England and the United States held this opinion. See New York Times, Aug. 21, 22, 27, 1936.) If this view is accurate, Spain’s move may be described as simply an attempt to close insurgent ports by fiat, a step interdicted by international law and practice and incapable of bestowing a belligerent status upon the rebels. (See Norman, J. Padelford, “International Law and the Spanish Civil War,” this JOURNAL, Vol. 31 (April, 1937), p. 231.Google Scholar) Padelford denies the view that the belligerency of the rebels has been recognized by implication. He feels that when third Powers recognize in this way, “the acts setting up the implication must be such as to leave no doubt but that they have accepted the exercise of belligerent rights by the struggling parties.” (Ibid., p. 236.)

81 In refusing to recognize Cuban belligerency in 1875, President Grant gave as one reason that it would bring upon American merchants a good deal of inconvenience and discomfort. (Moore, Digest, I, pp. 195–196.) See also, Fenwick, op. cit., p. 112.

82 “†this nation is its own judge when to accord rights of belligerency, either to a people struggling to free themselves … or to independent nations at war with each other.” (President Grant’s message of Dec. 6, 1869, Moore, Digest, I, p. 194.)

83 American recognition of the South American republics “… was dictated partly by sympathy with the revolutionists… . The recognition of the belligerency of Greece by Great Britain in 1825 was similarly inspired …” (Fenwick, op. cit., p. 113); as was British recognition of the South during the American Civil War.

84 For a criticism of our diplomacy in this case, see Moore, Candor and Common Sense (1930).