SPANISH STRUGGLE

Evening Post, Volume CXXII, Issue 149, 21 December 1936, Page 23

SPANISH STRUGGLE

NON-INTERVENTION

IS AGREEMENT ILLEGAL?

INTERNATIONAL LAW

In the second part of August, 1936, most European States, including all the Great Powers, agreed in an exchange of Notes to follow the initiative given by France and to prohibit the export and transit to Spain of arms, munitions, and war material, including aircraft and men-of-war, says^ a legal correspondent of the "Manchester Guardian." The Spanish Government has repeatedly protested against the agreement as violating its rights under international law. How far is this view justified? The non-intervention agreement has been described, not without reason, as a treaty in which one party agreed to forbear from acting in a way in which it was legally entitled to act in consideration of the other party desisting from doing something which it was legally bound not to do. International law clearly forbids a State to aid insurgents opposing by force a recog-. nised Government. It is obvious and not seriously disputed by anyone that before the non-intervention agreement Germany, Italy, and Portugal were acting in contravention of international law in so far as their Governments put at the disposal of the insurgent's "such war material as was owned by these States or was under, their Governmental control. A RIGHT RENOUNCED. On the other hand, France, Great Britain, and all other States were fully entitled either themselves to. supply the lawful Government of Spain with war material and aircraft or to permit their own subjects to do so for commercial or other objects. 'By undertaking to.prohibit the export of these articles they renounced a right clearly granted to them by international law. The reasons why they imposed upon themselves this self-denying ordinance are well known. They do not alter the fact that the renunciation of the right to assist the Spanish Government by official or private action / constituted an innovation in international law. This explains why States like Poland, Rumania, Turkey, and Yugoslavia adhered to the agreement subject to the express reservation that it shall not be regarded as a precedent and shall not be interpreted as laying down the rule that a State is not entitled actively to assist a foreign Government threatened by revolution. A NEW DEPARTURE. It is clear, therefore, that the nonintervention agreement was a new departure in international law at the expense of this country, France, and other States similarly situated, whose Governments or subjects may have intended to render assistance to the lawful Spanish Government. But did the agreement constitute a violation of international law as against the Spanish Government? Did' it deprive that Government of something to which it was legally entitled? In a politically controversial matter like this it is safe to turn for guidance to precedents. They will be found in abundance in the practice of the United States, the only great Power on a continent in which revolutions are not an exceptional occurrence. The clearest, because subsequently fully explained, precedent will be found in the imposition of the embargo upon the export of arms and other war material to Brazil in 1930. Following upon the express request of the Brazilian Ambassador, Whose Government was then fighting an armed rebellion, the President of the United States issued a proclamation, based on the joint resolution of Congress enacted in 1922, in which he prohibited the export of munitions and war material to Brazil —subject, however, to the important exception of shipments to the Government of that country. Moreover, the United States Government left no doubt that, in its view, it was not only entitled to act in this manner but4hat it was bound by international law to discriminate in favour of the recognised lawful Government, "• POSITION DEFINED. In an official statement issued by the Secretary of State the legal position was defined in terms whose clarity and relevance to the subject of this article warrant quotation in full. He said:— '■■ "There is nothing unprecedented in the principle which we have applied many times before. It is very important that people should not misunderstand it as a new principle. It is important for the reason that the revolutonists, who may be hurt by our action in placing an embargo, may assert that we are taking sides for some ulterior reason with one or'the other of the combatants. Instead of that, we are acting according to general principles of international law. Those principles declare that where.we are in friendly relations through diplomatic channels with a Government which has been recognised as the legitimate Government 6i a country, that Government is entitled to the ordinary rights of any Government to buy arms in this country, while the people who are opposing and trying to overthrow that Government and,are not yet recognised as belligerents are not entitled to that right. It is not a matter of choice _on our part, but is a practice of mankind known as international law. We have no personal bias, and are doing nothing but attempting to carry out the law of mankind. AMPLE PRECEDENT. There was, in fact, ample precedent for such action. Thus in 1915 President Wilson imposed by proclamation an embargo upon the shipment of arms to Mexico. Simultaneously, however, he made an exception with regard to munitions of war for the use of the recognised Government or for private use within the territories under its effective control. Already in 1869 Attor-ney-General Hoar had given a reasoned opinion to the effect that the Neutrality Act, while applying fully to fitting out and arming vessels for insurgent bodies whose belligerency had not been recognised, should not be applied to the fitting out and arming of vessels for the legitimate Government. The right of States or their subjects to buy goods within the territory of other States is almost universally regulated by and mutually granted in commercial treaties to which they are parties. Subject to what is said later this is also the position under the Treaty of Commerce between Great -Britain and Spain of October 31, 1922, and under the treaties of commerce concluded by Spain with practically all other State parties to the non-interven-tion agreement. To withhold that right in a time of supreme emergency and thus indirectly to assist the insurgent forces .is a flagrant breach of the treaties in question unless it can be justified by reference to exceptions laid down in the treaty itself or in general international law. Both kinds of exception are relevant to the present situation. NOTE TO SPAIN. In the first instance Great Britain might invoke the clear terms of the exchange of Notes with Spain of April

4 and 5. 1927. Both Governments agreed there that neither party may impose prohibitions or restrictions on the importation or exportation of goods except, among other things, "in respect of weapons, ammunition, and war material, and under exceptional circumstance's, also in respect of other materials needed in war." As the result of this saving clause the British participation in the non-intervention agreement is cleared of the stigma of illegality. But it is to be hoped that in any future attempt to justify its action the British Government will not rely on this essentially technical excuse. Neither, it is believed, is it necessary for this and possibly other parties to the agreement to rely in a matter of this magnitude on an isolated clause which was never intended to cover the circumstances of its present application. The British and other Governments are in a position to plead, in all honesty and sincerity, another and infinitely more persuasive justification for their violation of Spanish commercial rights under the various treaties. '

These Governments acted,in the conviction that to grant to Spain the right to buy war supplies and material would mean to endanger their own and international peace and safety— a truly vital interest which no international lawyer or tribunal could brush aside as a mere technicality— and they would probably be exculpated by a tribunal applying international law and equity. But, with equal probability, the tribunal would add an ominous rider to the effect that as a matter both of law and politics it is in the highest degree disquieting that States should be driven by the paramount consideration of peace to renounce their own rights and to throw overboard the rights of others. For that is what the non-intervention agreement amounts to. It is yet another reminder that Europe and the world have reached a stage in which a precarious peace is being preserved by sacrificing the few extant remnants of the rule of law.