RIVALS IN SPAIN

Evening Post, Volume CXXIV, Issue 108, 3 November 1937, Page 9

RIVALS IN SPAIN

BELLIGERENT RIGHTS

WHAT WILL BE INVOLVED?

SEARCH OF VESSELS

If the proposals that have been agreed to in London by Italy and Germany are finally adopted by the Nonintervention Committee on Spain as a whole, the various Powers will shortly recognise the belligerent rights of the contending parties in Spain, says a writer in the "Sydney Morning Herald."

To the layman, there has been a war in progress in Spain for some considerable time, but this has not yet become a "real"' war within the meaning of international law. For, in the legal sense of the term, the contending parties in a civil disturbance are not "belligerents." They cannot, therefore, legally exercise the right of search of ships for contraband, or any other belligerent right against neutrals. There are, in fact, no "neutrals" when the war is a civil war, for civil war is not war in the technical sense of the word/ When civil war. is conducted on the scale that has been witnessed for more than a year in Spain, international law does not refuse to recognise the facts of the situation. It demands, however, that the conflict should be a "war' 'in all respects, except for the fact that the parties are not, as they are in other wars, independent, States. In particular, it requires that each side should have an effective organisation, a Government controlling a certain part of the territory of the State, and capable of securing that its troops and fleets observe the laws of so-called civilised warfare. In short, what international law requires is that the Governments must be capable of acting, and for the time being that they are acting, just as the Governments of independent States act when they make war. ' CONDITIONS EXISTING. All these conditions have, of course, existed in fact for some considerable time. But, with the laudable object of endeavouring to localise the Spanish conflict, Britain and other Powers have refused to recognise them as such for the purpose of internatiopal law. In practice, the British Government has recognised the actual position to the extent of using the Navy to prevent the capture of merchantmen on the high seas carrying contraband to the ports of the Valencia Government. Further, . Britain has ma variety of ways acknowledged the authority of the insurgent Government at Salamanca and denied the authority of the.Valencia Government throughout the territories which the former actually controls. But there has been no legal recognition of • the insurgents as belligerents. Instead, the European Powers have, up to the present, adopted in principle the policy of non-intervention m^ the Spanish conflict. This i$ a political policy, and, is distinct from neutrality, which is a definite status recognised by international law. The policy of nonintervention has involved a great deal of activity on the part of Britain and other Powers, but no question of neutrality in the present : conflict has arisen because the belligerency of the insurgents has not been recognised.,... • If the Powers now finally agree that the conflict in Spain has reached a stage when it becomes right to admit that a war, in the international.sense, is in progress, they will issue what is called a "recognition of belligerency.' They will in this way inform the world in general, and the two parties to the Spanish civil war in particular, that they regard them both as belligerents in the international sense. The most important result of this step is j that the recognising State now accords to both parties the same right to search the ships of its subjects that general international law would give them_ v they were actually independent States at war with one another. . A TEMPORARY MEASURE. Professor J. L. Brierly, one of the foremost British authorities on the subject, emphasises the importance understanding the limited effect of a recognition of belligerency. It is, he points out, a purely provisional aitd temporary measure, putting the parties in the position of States, but only for the purpose, and for the duration, of the war. It implies no judgment on the merits or on the probable outcome of the dispute. In particular, it is not equivalent to the. recognition of the insurgent faction as an "independent" State, nor of its Government as \ the true Government of the State in which the war is taking place. Either of these forms of recognition would go much further than a mere recognition of the belligerent status of insurgents, and would, in fact, decide the very question which the war is being fought to settle, "A recognition of belligerency is nothing more than this," he concludes. "Firstly, the acknowledgment of a fact which it has become impossible to deny, and inexpedient to disregard, the fact, namely, that a real war is in progress. And, secondly, the acceptance of the legal consequences that that fact entails, namely, the status of a neutral vis-a-vis belligerents under international law, and this involves submitting to the exercise by either party of the right of search." To illustrate concretely what would be involved in a recognition of belligerency, recent events in the Mediterranean may be taken as an example. For some months past, merchant ships carrying the British and. other flags— often not going to Spanish ports—have been attacked by submarines or by other ships of war, or by aircraft, either by gunfire, bomb* or torpedo, and either without warning or in such circumstances as to cause death and injury to crews and passengers, and serious loss, of property. This has been called "piracy," and the agreement that the various Powers reached at Nyon recently ih an endeavour to stop it became known as the Anti-piracy Plan. According to international jurists, it is of the essence of a piratical ac.t to be an act of violence, committed at sea or, at any rate, closely connected with tne sea, by persons not acting under proper authority. Thus, an act oannot be piratical, the jurists point out, if it is done under the authority of a State, or even of an insurgent community whose belligerency has been recognised. THE IMPORTANT WORDS. The important words are "not acting under authority." To constitute piracy, the attacking ship must not hold the commission of a Government. Professor A. D. McNair, Professor of International Law at Cambridge University, in a recent address, declared that he hesitated to describe as piracy, in the legal sense of the term, any acts done in pursuit of political objects by the agents of the Government or a ; politically organised society, whether that society is a State in the ordinary sense, or an organised body of insurgents, and whether other States have or have not recognised the contest as a proper war and the parties to it as lawful belligerents. "The essential feature which excludes the crime of piracy," he adds, "is the existence of the authority of a Government." This view is held also by Professor Hyde,