Time for NATO to Close Its Door
The Alliance Is Too Big—and Too Provocative—for Its Own Good
NO ATTEMPT is made in this article to appraise the causes of the revolution which is today racking Spain.[i] Nor is it my object to discuss the present political alignments of Europe in order to determine whether we are witnessing a new balancing of powers, with fascism arrayed against "democracy," as once legitimist monarchs were leagued against the "republicanism" of an earlier era. It is the purpose of this article to see whether amidst these arms the laws are silent, and to consider what laws there are to speak.
But before we turn to a consideration of the applicable rules of international law, it may not be amiss to draw attention briefly to a few of the past instances in which Spain's European neighbors have concerned themselves in her domestic upheavals. As one skims the record of the last few centuries the newspaper headlines of the last few months leap irresistibly to mind.
In earlier times, as at present, the embroilment of various European Powers in Spanish affairs was generally connected, superficially at least, with changes in the government at Madrid. Then, however, the Powers made their alignments on the basis of support accorded various contending candidates for the Spanish throne. In 1698, the contest was between Archduke Charles of Hapsburg and the Dauphin of France for the succession to the childless Charles II -- a question involving either Hapsburg or Bourbon domination of Europe. England supported France; and the treaties between the two countries in 1698 and 1700 provided for the partition of Spanish possessions in Europe. Indignation ran high in Vienna as well as in Madrid. (This was half a century after Richelieu had fomented a Catalonian rebellion for the purpose of establishing a separate republic.) There came a shift in alignment, and in 1702 England, the Emperor and the Dutch began the War of the Spanish Succession against France. Other Powers joined, although some were diverted by the concurrent Northern War. When England virtually abandoned the allies, they were defeated by the French; and Spain supplied the spoils, acquiescing in the division after being defeated by the Anglo-French forces in 1720. England was now mistress of Gibraltar.
When Napoleon elevated his brother Joseph to the Spanish throne in 1808, Spain appealed to England. The Peninsular Campaign soon followed. In 1820 a liberal government was established in Spain under the new constitution of 1812. It succeeded only in ushering in two years of civil war, with the French unofficially aiding the absolutists. At the Congress of Verona in 1822, the Powers decided upon intervention in Spain, through the agency of France, to restore the power of Ferdinand VII. England protested; but in 1823 France, Russia, Austria and Prussia demanded the abrogation of the Constitution of 1812. Spain futilely declared that such intervention was contrary to international law; the French army marched to Madrid and the absolute rule of the King was restored. Here one finds a definite example of the absolute monarchs aligned in their Holy Alliance against a spread of republicanism. The Powers in the Holy Alliance would have liked to go further in checking revolution by helping Spain to hold her American colonies, but the Monroe Doctrine, with the aid of Canning and the English navy, forced them to desist.
With the outbreak of the Carlist revolt ten years later, England, France, Spain and Portugal were soon aligned in support of the established governments in Spain and Portugal, while Austria, Russia and Prussia supported the Carlists. The French promised not to allow the export of arms to the Carlists but they permitted loyalist troops to cross French territory to execute an enveloping movement. England promised to supply arms to the Queen's government and suspended the Foreign Enlistment Act of 1819 in order to permit the enlistment of English volunteers in the Spanish service. The variations in the situation as it developed were too numerous to mention here, but note may be made that England was again found opposed to the other Powers in her support of the liberal or radical factions within the loyalist ranks.
In 1869, it was again a question of succession to the Spanish throne which was used to involve two other European Powers in war. Bismarck and William I of Prussia supported Leopold of Hohenzollern-Sigmaringen. Napoleon III's government announced in vehement terms that it would not tolerate a Prussian or Hohenzollern prince on the Spanish throne. Although England and Austria sought to mediate, France pressed her demands that the Kaiser forever abjure the candidacy of Leopold, the famous Ems telegram was dispatched, and Bismarck cleverly manœuvred the French into declaring war on July 17, 1870.
The story is a continuing one, but perhaps the chapters already summarized will suffice to introduce the present scene.
II. THE EXISTENCE OF INTERNATIONAL LAW
There is a not inconsiderable lay opinion -- shared, unfortunately, by some members of the bar -- that international law exists only in books. The persons who hold this view would admit that international law issues forth into real life when war breaks out, but only for the purpose of attending its own immediate and not too decent burial. Without attempting to argue the point at length, we might note that international law is enough of a reality in the affairs of nations to warrant the inclusion of large legal staffs in every foreign office. The opinions of the law officers of the Crown in England, delivered throughout more than two centuries, show that diplomatic proceedings in many important and complex international situations were based upon legal opinions as to whether the course of action planned was legally defensible. It is not daring to assert that in the present Spanish crisis, Downing Street and the Quai d'Orsay have taken no step in matters relating to blockades, arms shipments, recognition and like matters without first studying the precedents of international law, or that these foreign offices are unique in this respect. What are some of the pertinent legal rules and precedents which all these legal advisers would amass and (one must in frankness add) interpret in support of policies considered desirable on other grounds?
Several issues should be considered: first, the bases for the non-intervention agreement which has functioned through the Committee set up in London on September 9; second, the question of the recognition of the belligerency of the contending groups; third, the problems involved in the recognition of the Franco "government."
It may be well to clear up at once certain questions of terminology.
American newspaper readers have been greatly confused by the multiplicity of terms applied to the two contending factions in Spain. Here we shall refer to the Government of President Azaña which was in office when the revolution broke out in Spanish Morocco on July 18 as the "established government." We shall refer to the revolutionary group as the "rebels." Lest it appear that the choice of these terms implies any bias in favor of one group or the other, it may be noted that the terms are chosen in order to avoid any suggestion of a preliminary commitment on the legal questions involved if one considers the rebels "insurgents" or "belligerents" or if one seeks at once to decide whether the present struggle should be called a "revolution" or a "civil war."
In the second place, one should be on guard against the common use by the press of the word "neutrality" as applied to the Spanish situation. The misuse of this term is indicated by Acting Secretary of State Phillips' circular instruction of August 7: "It is clear that our Neutrality Law with respect to embargo of arms, ammunition and implements of war has no application in the present situation, since that applies only in the event of war between or among nations. On the other hand, in conformity with its well-established policy of non-interference with internal affairs in other countries, either in time of peace or in event of civil strife, this Government will, of course, scrupulously refrain from any interference whatsoever in the unfortunate Spanish situation. . . ." It is true that the neutrality act of 1936 applies only to wars between or among nations, but others of our neutrality statutes and the general duties of neutrality apply in civil wars when belligerency has been recognized. On an analogous occasion, President Taft, in his Message to Congress of December 7, 1911, commenting on the disturbances in Mexico, said: "Although conditions of actual armed conflict existed, there was no official recognition of belligerency involving the technical neutrality obligations of international law." At the time this article is being written no state yet appears to have recognized the belligerency of either party. Therefore the rights and duties of neutrality in a legal sense do not as yet come into play. If the newspapers correctly report that some governments have used the word neutrality in their declarations regarding restrictions on the export of arms to Spain, then the governments themselves have been inaccurate in their use of that term.
It is not possible to be quite so precise in speaking of the words "intervention" and "non-intervention." "La non-intervention," said Count Rechberg, the Austrian Foreign Minister in 1859, ". . . n'est pas un principe, mais un terme exprimant la négation d'un simple fait." The whole problem of intervention and its legal regulation is one in which the detractors of the science of international law may well find comfort. There is much difference of opinion among writers on international law regarding the rules respecting intervention. European statesmen have generally recognized that intervention in the domestic affairs of another state was contrary to international law but, at the same time, they admitted such broad exceptions that the rule was emasculated. Two statements of Lord Russell in 1859 when he was British Foreign Secretary are typical:
With regard to the general question of interference in the internal affairs of other countries, Her Majesty's Government hold that non-intervention is the principle on which the Governments of Europe should act, only to be departed from when the safety of a foreign State, or its paramount interests, require it. . . .
The best writers on the law of nations allow intervention, where it is rendered necessary for the safety or essential interests of a State, as much in favour of subjects justly discontented, as in favour of a Sovereign, or regular Government. The intervention of the States-General of the United Provinces in the affairs of England in 1688, which is approved by Vattel, rested on no other basis.
It is not surprising that Count Apponyi replied for Austria that the British "principle of non-intervention was a very elastic one and seemed to be applied as . . . [their] interests or policy directed." Nevertheless, unless there are certain grounds for intervention, such an act must be looked upon as a breach of an international law obligation. Quaere: whether there exists in the present Spanish situation any justifiable ground for intervention by any outside state. As in the case of reprisals during war, it is always difficult to prove which state has first committed an illegal act. But an intervention of State B might be justified by a prior intervention of State A.
One of the difficulties is that since under international law states have had great latitude in resorting to war without a breach of customary international law, there is much force in the argument that they are equally justified in using the less violent resort to intervention when their interests so demand.
Interests naturally vary according to a state's proximity to the area of conflict. Thus the European Powers have asserted special rights of interference in Spain, in the Balkans, in Italy before the unification. Japan has followed suit in China. The United States, before it became a "good neighbor," acted on very many occasions upon the theory that it had peculiar interests in the Caribbean which justified it and no one else in interfering in cases of civil strife in that area. The contrast which exists today is well revealed by a bare recital of certain events in 1927. The United States was active in revolution-torn Nicaragua. On February 21 of that year its naval forces undertook the protection of the railroad between Corinto and Managua, in order to maintain communications between Managua and the coast and to protect American and other foreigners in the interior. Less than two weeks before, in contrast, the American legation in Lisbon, Portugal, had been abandoned when hit by gunfire during the revolution there. A British warship sailed up the Tagus. According to the New York Times of February 9, 1927, the Department of State announced: "The position of this government is one of hands off. The uprising is regarded as distinctly one concerning Portugal alone."
Another important point to keep in mind is the difference between helping the established government and helping a revolutionary group which has not yet been accorded recognition. In the words of the Duc de Gramont, French Ambassador to Vienna in 1867: "Il y aurait intervention étrangère quand une Puissance étrangère se place entre un peuple et son Souverain; mais, quand une Puissance appelée par le Souverain vient à son aide contre des étrangers, il y aurait dans ce fait une alliance, un secours, mais non pas l'intervention. . . ." The same principle applies when the established government calls upon a friendly foreign Power for assistance against rebels -- always assuming that the belligerency of the latter has not been recognized. This is the theory underlying the Pan American Convention on the Duties and Rights of States in the Event of Civil Strife. This treaty was signed at the Sixth Pan American Conference at Havana in 1928 and was ratified by the United States two years later. In general the treaty provides that in case of civil strife the established government will be aided by the other contracting parties. In particular, they agree: "To forbid the traffic in arms and war material, except when intended for the government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied." The existence of such a convention among the European Powers might have made unnecessary the special non-intervention agreement regarding Spain were it not that in the present European situation this amount of partiality in favor of the established government would not have been welcomed by Italy, Germany or Portugal. The Arms Traffic Convention of 1925, if it had come into force, would have served somewhat the same purpose and would have been open to the same objection.
When in 1895 a revolt broke out in the French protectorate of Madagascar, Great Britain allowed English ships to transport materials of war for the French Government forces.[ii] The British Government would have been justified in taking a similar stand in the present Spanish troubles; but because of the non-intervention agreement it is forbidding British ships to carry arms and munitions to either party in Spain. Mexico, on the contrary, has followed the line which England took in 1895; President Cardenas told the Mexican Congress on September 1 last that Mexico, in selling arms and munitions to the Spanish Government, had granted "a petition made by a constituted Government." If the Mexican Government itself has sold the arms and munitions, it has gone beyond the British precedent and would need to defend its position by asserting that there existed in Spain merely rebellion and not civil war.
The importance and the difficulty of distinguishing between a mere internal disturbance and an actual case of civil war is indicated by the Brazilian case of 1930. There was a revolution in Brazil. Belligerency had not been formally recognized. By the middle of October the revolutionists had made great progress and, in retrospect, it is apparent that their final victory was close. Nevertheless, on October 22, at the request of the established Brazilian Government, President Hoover issued a proclamation forbidding shipments of arms to the Brazilian rebels but expressly authorizing shipments to the established government. This action was taken under our statutory policy of 1912 and 1922 which gives the President authority to issue such an order in case of civil strife in Latin America or in countries where the United States enjoys extraterritorial privileges. On the next day, apparently because of press criticisms, the Secretary of State issued an explanation. He stated that under international law only the legitimate recognized government of a country was entitled to buy arms from a friendly nation, while insurgents had no such right. He said: "It is not a matter of choice on our part, but is a practice of mankind known as international law." Within a few days the victory of the Brazilian rebels was complete. Their government was promptly recognized by various other governments; the United States followed suit on November 8.
The action of the United States in this case has been severely and properly criticized by Judge John Bassett Moore.[iii] In view of the fact that neither the insurgency nor the belligerency of the rebels had been recognized, there might be a technical defense for the position of the United States. Practically, however, a state of civil war did exist and the action of the United States inevitably constituted interference in the struggle. As the Law Officers of the Crown advised in 1864, "the question, whether a state of war does or does not exist between insurgents holding possession of a particular territory, and a Government claiming their allegiance and attempting to subdue them, is one of fact, quite as much as of law: and, if the facts are such, as really to constitute a state of war between the contending parties, according to the law of nations, it is not, we think, competent, by law, to any neutral Power, to withdraw its ships and subjects, upon the high seas, from the operation of the ordinary laws incident to that state of things, merely by declining to acknowledge its existence." During the Cretan insurrection of 1867, the Law Officers of the Crown gave to Lord Stanley another opinion on similar problems. The following two paragraphs represent a sound view of the law which was accepted by the Foreign Secretary:
When a Civil War has broken out in the dominions of a Friendly State, and Armaments are brought into the Field, or upon the Sea, by the contending parties, it is undoubtedly competent for a Neutral State without any breach of International Law, to recognize both parties as belligerents and to declare herself Neutral between them.
It is always a question of fact to be determined by the Government of the Neutral State, whether the Insurrection has or has not assumed the dimensions of War, and whether the legitimate interests of the Neutral State do or do not require that she should claim from both parties the performance towards her of the obligations incident to the Status of a belligerent; -- according equally to both parties in return, the recognition of that status.[iv]
President Wilson's policy in Mexico constituted in practical effect a choice between the contending factions, and therefore interference. One may compare today the statement of the Spanish Foreign Minister in the Assembly of the League of Nations on September 25, 1936, to the effect that his government regarded non-intervention only as a policy of intervention against the constitutional government. A somewhat amusing feature of the Brazilian episode is the fact that the Department of State apparently momentarily overlooked the Pan American Convention on the Duties and Rights of States in the Event of Civil Strife which was already in force for the United States and for Brazil and which constituted a full justification for the action taken. In March 1931, when the embargo was raised, the Convention was invoked as an explanation of the original imposition of the embargo.
III. THE SPANISH NON-INTERVENTION AGREEMENT
The initiative for an agreement not to intervene in Spain came from France and was announced in a Cabinet communiqué of August 1, 1936. The French Government decided to appeal to the British and Italian Governments for "the rapid adoption and rigid observance of an agreed arrangement for non-intervention in Spain." The purpose seems to have been primarily to reach some general agreement which would prevent the shipment of arms and ammunition to either party in Spain. The underlying purpose was undoubtedly to prevent the Spanish revolution from developing into a general European crisis through the intermeddling of some other Power or Powers. History had abundantly demonstrated the real danger of such an eventuality.
One must accept with reserve some of the newspaper reports of aid furnished to one party or the other from various foreign states. In some cases, assuming that assistance was sent, it is impossible at this time to say whether it was sent with the approval or connivance of the government in question. As already noted, the legal consequences of sending aid to the established government are different from those produced by assisting the rebels. Moreover, it cannot be denied that one of the burdens which must be accepted by a totalitarian state or dictatorial government is an enhanced international responsibility for the acts of its individual citizens. The United States, by referring to the rights of freedom of speech and of the press, has often adequately defended itself against complaints of foreign governments that derogatory statements have appeared in American newspapers. Such a defense is not open to a government which assumes to exercise a rigid control of the press. The same distinction applies to mass meetings and even to contributions of clothing and medical supplies. On the other hand, the enlistment of volunteers and the shipment of such things as military planes are within the control of any government. If the laws of neutrality are applicable, all governments are under a duty to prevent such forms of assistance and a fortiori to avoid direct governmental aid.
In Soviet Russia there naturally existed great sympathy with the established Spanish Government. A similar sympathy was felt in France, though perhaps to a slighter extent and with less unanimity. On the other hand, Germany and Italy would naturally be sympathetic toward the rebels who, even if at this time they cannot be definitely classified as "fascists," certainly contain elements of a fascist nature. Fortunately, Premier Blum in France has refused to allow any feeling of an international solidarity of leftist governments to control the foreign policy of France to an extent sufficient to embroil Europe in general conflict. Foreign Minister Delbos declared in a speech on August 2 that "there must be no crusade of ideals in Europe, a crusade which would inevitably end in war."
Following the first démarche of the French Government on August 1, there were protracted negotiations with the other European governments. There was a good deal of jockeying on the part of some of them to make sure that they would not be accepting an obligation to refrain from aiding the party which had their sympathy unless the states having opposite sympathies should be similarly bound. After five weeks of negotiations, the "International Committee for the Application of the Agreement regarding Non-intervention in Spain" met in London with the representatives of the following twenty-six states in attendance: Albania, Austria, Belgium, Bulgaria, Czechoslovakia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Irish Free State, Italy, Jugoslavia, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Rumania, the Soviet Union, Sweden, Turkey and the United Kingdom. The only notable absentee was Portugal. That country finally joined the Committee and attended the meeting held on September 28.
The Committee has continued to hold frequent meetings and has occupied itself largely with examining charges by the Soviet Government against Portugal, Italy and Germany, and reciprocal charges against the Soviet Government, all alleging violation of the non-intervention agreement by the rendering of aid to one faction or the other. It is of course impossible to consider the charges or counter-charges made in the Non-intervention Committee apart from the general European situation. The violently threatening attitude against the Soviets taken by the Nazis at the Nuremberg meeting, the corresponding reaction in Moscow and, still more recently, the announcement of a German-Japanese alliance against communism, together with the German-Italian rapprochement, are all factors which once again make the question of intervention in Spain merely an aspect of general European diplomacy.
IV. THE RECOGNITION OF BELLIGERENCY
The international legal problems involved in the recognition of belligerency can perhaps best be understood if one considers various types of domestic disturbance in their relative degrees of magnitude. First of all, we may witness a condition of domestic violence which amounts to no more than rioting in various parts of the country. In general, such a condition raises no question of outside interference. If the opposition to the established government gains in strength and in organization, the riot may assume the dimensions of a rebellion. The term "rebellion," however, is not a term of art in international law. It therefore probably is not possible to draw a nice legal line between a rebellion or an insurrection and a revolution except to suggest that a revolution implies a somewhat more serious upheaval. There is again a fine line between revolution and civil war, but the latter term is applied to a situation where a comparatively well-knit body with civil as well as military organization opposes the established government by force of arms. In one sense, this term still applies to the internal or domestic affairs of the state. From an external or international point of view, the rebellious group has no standing unless it achieves at least the status of insurgency. "Recognition of a condition of insurgency in a foreign country is merely a reckoning with a state of facts. It confers no special rights on the insurgents; it manifests no design to aid them; it affords no ground of complaint to the parent State; it imposes on the foreign State none of the burdens of a neutral."[v] One practical effect of a recognition of insurgency is that the insurgents, if operating on the high seas for example, will not be treated as pirates although they are not admitted to have any of the usual rights of belligerency.
The British and other governments have taken the position that they refuse to admit the right of the Spanish rebels to interfere with foreign ships on the high seas but they do admit their right to do so within territorial waters where they exercise de facto control. The belt of territorial waters within three miles of the coast constitutes a part of the territory of the state and contending factions therefore have the same rights in those territorial waters which they have upon land. (Parenthetically, it may be remarked that the Spanish Government has frequently attempted to claim a six-mile limit of territorial waters but has never been able to maintain this claim in the face of British opposition.) [vi] In 1858, Attorney-General Black rendered an opinion to the Secretary of State in which he remarked: "It has been doubted whether a mere body of rebellious men can thrust itself among the family of nations, and claim all the rights of a separate power on the high seas, without some sort of recognition from foreign governments; but there is no authority even for a doubt about the right of the parties to a civil war to conduct it, with all the incidents of lawful war, within the territory to which they both belong." Secretary of State Hay concisely laid down two applicable rules in a letter to the Secretary of the Navy on November 15, 1902:
1. Insurgents not yet recognized as possessing the attributes of full belligerency can not establish a blockade according to the definition of international law.
2. Insurgents actually having before the port of the state against which they are in insurrection a force sufficient, if belligerency had been recognized, to maintain an international law blockade, may not be materially able to enforce the conditions of a true blockade upon foreign vessels upon the high seas even though they be approaching the port. Within the territorial limits of the country, their right to prevent the access of supplies to their enemy is practically the same on water as on land -- a defensive act in the line of hostility to the enemy.
There are, however, exceptional cases in which the right of insurgents to establish a maritime blockade has been admitted. This was true of the British attitude in the Chilean revolution of 1891 and of the attitude of the United States during the Brazilian naval revolt of 1893.
In the present Spanish situation the German Government announced after the German steamship Kamerun had been interfered with on the high seas, that it would resist by force any further interference with German shipping; German warships were sent to the Spanish coast with this purpose in mind. Similarly, the British Government has sent warships to the Spanish coast with an announcement that they would protect British ships on the high seas. There are many precedents for action of this kind. It was the position taken by the British Government during the Peruvian Revolution of 1877; the same position was taken by the United States in the Colombian insurrection of 1885. Similar was the warning of the commander of an American naval vessel during revolutionary disturbances in Haiti in 1902. It may be noted also that under section 4295 of the Revised Statutes of the United States it is declared to be lawful for a United States merchant vessel to resist restraint, search or capture on the high seas by any armed vessel, "it not being a public armed vessel of some nation in amity with the United States."
If the insurgents have reached a very considerable degree of organization and stability, and if they are contending on more or less equal terms with the forces of the established government, they may attain the status of belligerency. If their belligerency is recognized, they thereupon acquire the same rights which are granted to a sovereign state when it is at war. In other words, recognized belligerents may establish blockades, may visit and search the ships of third powers on the high seas, may seize and confiscate contraband goods, and the like.
As an example of a formal recognition of a state of civil war bringing into play the obligations of neutrality, reference may be made to President Van Buren's proclamation of January 5, 1838, during the course of an insurrection in Canada: "Whereas information having been received of a dangerous excitement on the northern frontier of the United States in consequence of the civil war begun in Canada . . . any person who shall compromit the neutrality of this Government by interfering in an unlawful manner with the affairs of the neighbouring British Provinces, will render themselves liable to arrest and punishment under the laws of the United States . . ." President McKinley's proclamation of June 12, 1895, was similar; he recited that Cuba was "the seat of civil disturbances, accompanied by armed resistance to the authority of the established Government of Spain" and admonished all persons in the United States to respect our neutrality laws.
A recognition of the belligerency of an insurrectionary group may be made inevitable by the very action of the established government which is most eager to prevent such a development. During the Carlist revolution in Spain in 1874, the British Government was informed that the established Spanish Government which they recognized was about to establish a blockade on the northern coast of Spain. Lord Grenville informed the British Ambassador to Madrid that the British Government would recognize the blockade if it were effective but "the result however will be that the Carlists henceforth become belligerents . . . I have therefore to instruct you to warn the Spanish Govt. that the establishment of the proposed blockade must lead to the issue by H. M.'s Govt. of a proclamation of neutrality . . ." The situation was similar during the American Civil War. Secretary Seward labored and argued vehemently to prove that there was no "war" in the United States; there was only "indeed, an armed sedition seeking to overthrow the government, and the government is employing military and naval forces to repress it." But when the North declared a blockade of the Southern ports, the game was up. A blockade can be enforced against ships flying foreign flags only through the exercise of belligerent rights. Belligerency is never a unilateral position; there must always be at least two belligerents. By asserting belligerent rights on the high seas, the North thereby recognized the belligerency of the Confederates, as the British Government was quick to point out. Similarly, in a brilliant note to Mr. Pike, American Minister at The Hague, Baron Van Zuylen, the Dutch Foreign Minister, recalled that in 1778 England used against the revolting American colonies the same arguments which Mr. Seward was now advancing; the Dutch Government was content to reply to the latter as the French Government had responded to the former.
If one may judge from newspaper reports regarding the nature and scope of the present struggle in Spain, it does not seem that there would have been any impropriety in the recognition of the belligerency of the two parties by foreign states; but at the time this article was written no such action had been taken. So far, then, no questions of neutrality have come into play since the outbreak of the Spanish rebellion.
V. THE RECOGNITION OF THE FRANCO "GOVERNMENT"
The final stage a rebellious faction may attain is one in which they have actually overcome the former established government and have in turn established themselves as the government in control of the country. Apparently in the judgment of at least four governments the rebels had already reached this stage in November.
On November 18, the Italian Government officially recognized the rebel government of General Franco on the ground that his movement had "taken possession of the greater part of Spain and the development of the situation shows ever more clearly that in the remaining parts no responsible government any longer exists." At the same time the Italian diplomatic representative accredited to the Madrid Government was recalled and a chargé d'affaires was dispatched to establish official relations with the Franco government. Similar action was taken on the same day by the German Government. The official German communiqué gave the same reasons as those advanced by Mussolini, in practically the same terms. Although these were the first large Powers to accord official recognition to the rebel group, it had been reported on November 9 that the government of El Salvador had recognized the Franco government. We may note in passing that the Salvadorean Government was also the first government to recognize the independence of Manchukuo. Albania, which has close ties with Rome, followed Italy in according recognition to the Franco government on November 26.
The consequence of the extension of recognition by Italy and Germany is that thereafter for them the Franco government is the government of Spain and the established government is merely a rebellious group. In other words, the tables are completely turned. Following the principles outlined above, Italy and Germany would now be legally free to supply aid to the Franco group just as previously any states would have been free to supply aid to the established government. However, the Non-intervention Agreement officially precludes the Italian and German Governments from granting aid to the Franco government just as it has officially precluded France and Russia, for example, from aiding the established government. The danger implicit in these new legal relationships is clear. If the Non-intervention Agreement were terminated, Italy and Germany might well be found officially helping the Franco government which they recognize, while France and Russia might officially help the established government which they recognize. Both groups of Powers would assert that they were merely helping the government of Spain to suppress a rebellion. Practically, the danger of the conflict spreading to the rival sympathizers would be enormously enhanced.
The established government has protested against the action of the Italian and German Governments. On November 27, Foreign Minister Alvarez del Vayo telegraphed the Secretary General of the League of Nations asserting that this recognition of the chief of the rebels was the crowning act of the "armed intervention of Germany and Italy in the Spanish civil war." The Spanish Government also called attention to the announced intention of the rebels to blockade Spanish ports which, it was asserted, would "cause difficulties of an international order." Spain appealed to the League under Article 11 of the Covenant and asked the Council to take action. A meeting of the Council was accordingly scheduled for December 10.
It is only natural, of course, that the established government should protest in a case of this kind and there are many precedents for such protests. It may be sufficient to call attention to the protest of the Kingdom of the Two Sicilies when Garibaldi's blockade of Messina and Gaeta was recognized by the Powers. In this instance, in October 1860, the Garibaldi revolutionists had not yet been recognized as a government but the protest is strikingly similar to the recent Spanish note. "The European Powers," wrote Count Ludolf, the Minister of the Two Sicilies in London, to Lord Russell, "cannot recognize a blockade decreed by an illegitimate Power. In order to impose a sacrifice of the liberty of the sea, and the interruption of their commerce, upon other nations, it is requisite that a Government be openly and officially acknowledged by others. Garibaldi does not represent a Government. Naples in revolution is not a nation. The only nation recognized by Treaties is the Kingdom of the Two Sicilies; and the Sovereign of this kingdom, recognized as such by all the others, is now at Gaeta."
It is difficult to form an unbiased opinion on the propriety of the Italian and German recognition because it depends on a state of facts. One can not be sure from newspaper reports precisely what the facts were on November 18. One may however indicate the applicable rules or precedents which can be applied to whatever state of facts is accepted as true.
It is, or should be, true, as the Belgian Foreign Minister declared in 1861, that "de la part d'une puissance étrangère, reconnaître un autre gouvernement n'est que reconnaître un fait. . . . En reconnaissant le nouveau royaume d'Italie, nous reconnaissons, à leur example, un état de possession, sans nous constituer juges des événements qui l'ont établi. . . ."
John Quincy Adams as Secretary of State had to deal with the question of the recognition of the Spanish colonies in South America. In general, of course, the United States was sympathetic to the revolutionists, but it tried to steer an even course and to make its conduct rigorously correct. Two of Mr. Adams's statements may be combined to show the attitude of the United States:
So long as a contest of arms, with a rational or even remote prospect of eventual success, was maintained by Spain, the United States could not recognize the independence of the colonies as existing de facto without trespassing on their duties to Spain by assuming as decided that which was precisely the question of the war. . . .
But there is a stage in such contests when the parties struggling for independence have, as I conceive, a right to demand its acknowledgement by neutral parties, and when the acknowledgement may be granted without departure from the obligations of neutrality. It is the stage when independence is established as a matter of fact so as to leave the chances of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland. If war thus results in point of fact from the measure of recognizing a contested independence, the moral right or wrong of the war depends upon the justice and sincerity and prudence with which the recognizing nation took the step.[vii]
Lord Liverpool, dealing with the same situation, remarked similarly that "he had no difficulty in declaring what had been his conviction during the years that the struggle had been going on between Spain and the South American provinces -- that there was no right while the contest was actually going on. . . . The question ought to be -- was the contest going on? He, for one, could not reconcile it to his mind to take any such step [as recognition] so long as the struggle in arms continued undecided."
It naturally follows that recognition before the rebels have actually established themselves is premature and constitutes intervention. This was a theme repeatedly developed by Secretary Seward in the early days of the American Civil War. "We freely admit," he wrote to Mr. Adams in London on April 10, 1861, "that a nation may, and even ought, to recognize a new State which has absolutely and beyond question effected its independence, and permanently established its sovereignty; and that a recognition in such a case affords no just cause of offence to the government of the country from which the new State has so detached itself. On the other hand, we insist that a nation that recognizes a revolutionary State, with a view to aid its effecting its sovereignty and independence, commits a great wrong against the nation whose integrity is thus invaded, and makes itself responsible for a just and ample redress. . . ." [viii]
It is interesting to note that, through the force of circumstances, the Government of the United States at this period found itself less in sympathy with the Jeffersonian principles of the right of revolution. This came to be reflected in Seward's policy regarding the recognition of new governments in other states.
A fact frequently persuasive in determining when recognition should be granted is the occupation and control of the national capital with its archives. This was the point emphasized by Sir Charles Wyke, the British Minister in Mexico in 1861, when he declared that foreign diplomatic agents "were obliged, on the principle now universally recognized, to acknowledge a real bona fide de facto Government holding the capital and the archives of the nation." It seems reasonable to suppose that when the Italian and German Governments accorded their recognition on November 18 they imagined that the forces of General Franco were on the eve of capturing Madrid. In retrospect, and in the light of general principles of international law, it appears that it would have been more correct for them to await that event. Nevertheless, possession of the capital is not a sine qua non, as was suggested by Lord Grenville in an instruction to Sir James Crampton, the British Ambassador to Madrid during the Spanish revolution of September 1868. "As long as Her Catholic Majesty holds sway in Spain," Lord Grenville wrote, "however trammelled or embarrassed by internal Convulsions may be Her Majesty's Freedom of Action, so long can the British Minister recognize Her Majesty alone as the ruling Power of the Country; and even if Her Majesty were compelled to abandon Her Capital and to establish the Seat of Her Government in a Provincial City, it would still be the duty of the British Minister, if invited, and if his Colleagues should receive and act upon a similar invitation, to follow Her Court, although while doing so, he should give no further Countenance nor Sanction to the Course of Policy she might adopt than would be implied by his bodily Presence at the Seat of Her Government." In 1859, Mr. McLane was sent to Mexico with discretionary authority to recognize the government of President Juarez if he found it entitled to recognition. He "was specifically instructed that it was not an essential condition of the recognition of a government that it should be in possession of the capital, but that it was enough if it was 'obeyed over a large majority of the country and the people, and is likely to continue.'"[ix]
It is impossible to deal here at length with the question of the recognition of new governments. It might be interesting to trace the vagaries of the recognition policy of the United States from the days of Jefferson, when we considered it sufficient to find that a government existed; through the days of Seward, when we were inclined to be fearful of revolts; back through a long period where Jefferson's principles again prevailed; on through the days of Wilson's moralistic stand in Latin America; on through the period when we adopted a special policy for Central America and the Caribbean; down to the recent attitude toward the recognition of the Soviet Government. One might also mention the Stimson non-recognition doctrine, particularly as applied in the case of Manchukuo, where recognition is still withheld as a penalty or sanction. However, the United States, in recent times at least, and when dealing with new governments in Europe, has been inclined to follow the lead of the European Powers. Its recognition policy is therefore not of prime importance in connection with the existing Spanish situation.
Attention should be drawn to the fact, however, that we have been witnessing in recent times a tendency to give a new aspect to recognition. Formerly, the recognition of a new government which had been successful in obtaining de facto control of the greater part of a country as a result of revolution was generally determined by the foreign government's ascertainment of that fact. Nowadays, governments seem inclined to withhold or to extend recognition as an instrument of national policy. There was no question that the Soviet Government was the government of Russia for a very long period of time before the United States "recognized" that fact. It seems clear that recognition was withheld partly because of our dislike of the form of government prevailing in that country, partly in order to secure certain concessions in exchange for the eventual granting of recognition. This statement is made without ignoring the reasonable argument that one test applied in extending recognition is to determine whether the new government is able and willing to respect its international obligations. This new attitude toward recognition as an instrument of national policy is not peculiar to the United States. Nevertheless, it remains true that the legal correctness of recognition or nonrecognition must be judged by the established standards of international law. As already indicated, these standards involve a fair and unbiased appraisal of the factual situation. International law does not impose upon states a duty to recognize new governments at any particular moment. To that extent, recognition lies within the realm of policy. But international law does brand as an illegal intervention in the domestic affairs of another state a recognition prematurely accorded to an insurrectionary group with a view to aiding that group in ousting the established government.
If one were to venture an answer to the question posed earlier in this article, it might be said that no official arguments have yet been seen which would justify such intervention in Spain by any foreign Power.
[i] See "Back of the Spanish Rebellion," by Lawrence A. Fernsworth, FOREIGN AFFAIRS, October 1936, p. 87.
[ii] John Bassett Moore, "Digest of International Law," v. I, p. 205.
[iii] "Candor and Common Sense," an address before the Association of the Bar of the City of New York, December 4, 1930.
[iv] Herbert Arthur Smith, ed. "Great Britain and the Law of Nations," v. I, p. 263.
[v] Charles Cheney Hyde, "International Law," v. I, p. 82.
[vi] The Law Officers of the Crown in 1864 gave an opinion on the legality of blockades in the San Domingan revolt against Spain. They remarked that Admiral Hope had conceded the rights of the insurgents to interfere with shipping in territorial waters off the coasts they controlled but denied their "preposterous claim" to a six-mile limit. (Smith, op. cit., p. 315.)
[vii] The first sentence is taken from his instruction to the American Minister to Colombia, May 27, 1823, and the rest from his letter to the President, August 24, 1818. (Moore, v. I, p. 89 and 78.)
[viii] Caveat: Mr. Seward and John Quincy Adams were speaking of the recognition of a new state, which is, of course, different from the recognition of a new government in an old state. The statements quoted, however, are applicable to the latter case.
[ix] John Bassett Moore, "Digest of International Law," v. 1, p. 147.