Recognition of Belligerency and the Spanish War

In: American journal of international law: AJIL, Band 31, Heft 3, S. 398-413

Abstract

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?