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MEMORANDUM IN SUPPORT OF THE RETENTION
OF THE SPANISH EMBARGO
D7
Faness
BY HERBERT WRIGHT
Professor of International Law
The Catholic University of America
Prepared for the
KEEP THE SPANISH EMBARGO COMMITTEE
Sponsored by
NATIONAL COUNCIL OF CATHOLIC MEN
1312 Massachusetts Ave., N.W.
Washington, D. C.
Copyright 1939
by
HERBERT WRIGHT
17
1
CONTENTS
The Attitude of Foreign States to Insurgencies..
Legal Rights and Obligations of Foreign States toward Parties
in a Civil War...
Rights and Obligations of European States toward the Parties in
the Spanish Civil War:
1. Under International Law.
2. Under the International Non-Intervention Agreement.....
Rights and Obligations of the United States toward the Parties
in the Spanish Civil War:
1. Under Joint Resolution of 8 January 1937.
2. Under Joint Resolution of 1 May 1937..
3. Under the Treaty of 3 July 1902 with Spain.
4. Under International Law...
Summary of Conclusions on Law.
Should the Existing Laws Be Repealed or Amended?..
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7
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€ 26
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MEMORANDUM IN SUPPORT OF THE RETENTION
OF THE SPANISH EMBARGO
By HERBERT WRIGHT
Professor of International Law, The Catholic University of America
THE ATTITUDE OF FOREIGN STATES TO INSURGENCIES
The attitude of a foreign state to insurrectionary forces in another
state in which civil war exists may pass through the following three
stages:
1
1. Recognition or admission of insurgency. "Recognition of a
condition of insurgency in a foreign country," says Charles Cheney
Hyde, former Solicitor of the United States Department of State and
now Professor of International Law at Columbia University, "is
merely a reckoning with a state of facts. It confers no special rights
on the insurgents." It simply means that the foreign state takes
cognizance of the fact that the organized rebel forces are in actual
control of a certain section of the country to the exclusion of any
control on the part of the mother government. Consequently, if the
nationals of a foreign state are to continue carrying on commercial
and other relations in the area controlled by the rebels, the consuls of
the foreign state must transact the ordinary routine business con-
nected with these relations with the agents of the rebel forces. Such
a procedure, at most, is a recognition of the existence of war merely
in the material sense.
2. Recognition of the belligerency of the insurgency. When the
"insurrection has attained a magnitude such that the mode and ex-
tent of operations by sea and land. . . are deemed sufficiently to
concern the interests of a foreign state, it may accord to the insur-
gents the rights of belligerents."2 As Secretary of State John Hay
said, "Belligerency is a more or less notorious fact of which another
government, whose commercial interests are affected by its existence,
may take cognizance by proclaiming neutrality toward the contend-
ing parties . . .". Recognition of belligerency, in his conception,
may be accorded simply "by proclaiming neutrality." As is argued
..
1 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied
by the United States (Boston, 1922), I, 82.
2 Ibid., 77.
3 Letter to Secretary of Navy, 15 November 1902, quoted by George Grafton
Wilson, "Insurgency and International Maritime Law," American Journal of
International Law, 1 (1907), 57.
5
by Fred K. Nielsen, former Solicitor of the United States Department
of State and internationally recognized as an authority on interna-
tional law, the legal status of belligerency is not necessarily depend-
ent upon affirmative acts of recognition, but "may be considered to
be accomplished, when they [the insurgents] occupy a definite area
of a country, exercise some form of governmental authority, have or-
ganized armies and conduct hostilities in accordance with the rules
of war." 4
Where the mother government has not recognized the belligerency
of the insurgency, the according of such recognition by a foreign
state is subject to the possibility of its being interpreted by the mother
government as an unfriendly act, if the insurgency has not satisfied
the four conditions referred to by Nielsen above. When these condi-
tions have been fulfilled, recognition of the belligerency of the insur-
gency by a foreign state can not justifiably be interpreted by the
mother government as an unfriendly act, especially if it is dictated
primarily by strong reasons of national policy not necessarily involv-
ing intervention.
Recognition of belligerency-
presupposes the existence of what is equivalent to war between
the parties in opposition; and serves to clothe each with such
right with respect to the outside state as might be fairly claimed
were the conflict being waged between two independent nations."
An insurgency whose belligerency has been recognized by the gov-
ernment of any state is virtually another state or goverment for the
duration of the war, so far as concerns the government of the state
recognizing its belligerency.
3. Recognition of the belligerent insurgency as a de facto govern-
ment. When the insurrection has been in progress for some time
and, in the opinion of a foreign state, has been successful in its objec-
tive, it may recognize the insurgency as the de facto government of
a new state whose territory corresponds to the area controlled by
the insurgency or as the de facto government of the entire state in
civil war in place of the former established government. If a foreign
state accords such recognition prematurely, that is, if the established
government ultimately suppresses the insurrection, the foreign state
according such premature recognition may be held responsible by the
victorious de jure government for an act of unjustifiable intervention.
4 Fred K. Nielsen, in American Society of International Law, Proceedings,
1937 (Washington, 1937), 146, citing Oppenheim and Moore.
"Wilson, op. cit., 78.
6
LEGAL RIGHTS AND OBLIGATIONS OF FOREIGN STATES
TOWARD PARTIES IN A CIVIL WAR
The legal rights and obligations of a foreign state in the above
contingencies may be summed up in the practice of nations as follows:
No matter whether the belligerency of the insurgency has been
recognized by the mother government or not, a foreign state is free,
as it sees fit, to grant or withhold such recognition, depending on
whether it believes the four conditions laid down above have been
satisfied or not. If it withholds such recognition, it is obliged under
international law to abstain from directly assisting the insurgency,
but it is free, as it sees fit, to grant or withhold direct assistance to
the mother government, or to permit its nationals, at their own risk,
to sell arms to any one in the state in insurrection, subject to capture
as contraband of war, or to forbid its nationals to sell arms to any
one in the state in insurrection in the interest of its own peace and
security. If a foreign state accords such recognition and does not
desire to enter the war on one side or the other, it is obliged under
international law to observe neutrality, that is, to abstain from di-
rectly assisting either belligerent, but it is still free, as it sees fit, to
permit or forbid its nationals, at their own risk, to sell arms to any
one in the state in insurrection, subject to capture as contraband of
war. A neutral power is not obliged under international law to
prevent its nationals from exporting arms to either belligerent." "Such
trade is merely subject to the belligerent rights of capture as contra-
band, the neutral state incurring no responsibility in the matter." "
If the insurgency whose belligerency has been recognized by a
foreign state is also recognized by the foreign state as the de facto
government of the entire state at war, the foreign state is now obliged
under international law to abstain from directly assisting the former
established government, but it is free, as it sees fit, to grant or with-
hold direct assistance to the newly recognized de facto government,
or to permit or forbid its nationals to sell arms to any one in the
state in insurrection, subject to capture as contraband of war. How-
ever, as pointed out above, if the foreign state grants direct assist-
ance to a prematurely recognized de facto government, it may ulti-
mately be held responsible by the victorious de jure government for
an act of unjustifiable intervention in according the premature recog-
nition and in granting the assistance.
6 Hyde, op. cit., I, 748, and the authorities there cited; James W. Garner,
"International Law in the European War,” American Journal of International
Law, 9 (1915), 394; and Ex Parte Chavasse, quoted by James Brown Scott and
Walter H. E. Jaeger, Cases on International Law (St. Paul, 1937), 947.
Edwin M. Borchard, "Private Pecuniary Claims Arising Out of War,"
American Journal of International Law, 9 (1915), 144-5.
7
RIGHTS AND OBLIGATIONS OF EUROPEAN STATES
TOWARD THE PARTIES IN THE SPANISH
CIVIL WAR
1. Under International Law
Apparently because the Franco insurgency in Spain (a) has ac-
quired the possession of a definite portion of the national territory,
(b) has the elements of a regular government over this portion of
the territory, (c) carries on its fight by organized troops, subject
to military discipline, and (d) conducts hostilities in accordance with
the laws and customs of war, Italy and Germany (and at least ten
other nations) have recognized the belligerency of the Franco in-
surgency. They have gone a step farther and recognized Franco's
Government as the de facto government of all Spain. In doing so,
they have assumed the risk of having their act held as unjustifiable
intervention in case the Franco forces are ultimately defeated by the
Barcelona Government. But Italy and Germany, having, for reasons
which they deemed sufficient, taken the position that the Barcelona
Government has been superseded by the Franco Government, are
free, as a matter of policy and apart from international agreement
or municipal law to the contrary, to grant or withhold direct assist-
ance to the Franco Government or to permit or forbid their nationals
to sell arms to any one in Spain. They have apparently elected to
grant or permit assistance to the Franco Government. On the other
hand, the Union of Soviet Socialist Republics and France are said
not to have recognized the belligerency of the Franco insurgency and
are therefore free, as a matter of policy and apart from international
agreement or municipal law to the contrary, to grant or withhold
direct assistance to the Barcelona Government or to permit or forbid
their nationals to sell arms to any one in Spain. They have apparently
elected to grant or permit assistance to the Barcelona Government.
So far as international law alone is concerned, then, both groups
of states are within their rights, and it is not the fault of the United
States that the Franco insurgency has been able to obtain more assist-
ance (if that indeed be true) from the states which have recognized
its government than the Barcelona Government has been able to
obtain from the states which have refused to recognize even the
belligerency of the Franco insurgency. Consequently, granted, for
the sake of argument, that, as Dr. Raymond Leslie Buell, President
of the American Foreign Policy Association, maintains,8 "the pro-
hibition imposed by the United States, as well as France and Britain,
works directly against the Loyalists," this is not the fault of the
8 New York Times, 27 March 1938.
8
United States. Under international law the Barcelona Government
has merely the right to buy arms from those who are willing to sell.
There is no corresponding obligation on the part of the nationals of
other states to sell arms to the Barcelona Government. The right to
impose an arms embargo is by international law inherent in the
plenary powers possessed by all nations. An arms embargo as such,
apart from treaties to the contrary, cannot violate international law.
2. Under the International Non-Intervention Agreement
The reason why we said that "So far as international law alone
is concerned, both groups of states are within their rights," is be-
cause it has been alleged that these states were parties to the "Inter-
national Non-Intervention Agreement" concerning the Spanish civil
war. There is considerable popular misconception concerning the
nature of this "agreement". It had its origin in a diplomatic ex-
change of notes between Great Britain and France on 15 August
1936, referring to a common attitude toward the Spanish strife and
containing a preamble and three declarations of policy. By the pre-
amble the two governments agreed to abstain rigorously from all
interference (de toute ingérence), direct or indirect, in the interna-
tional affairs of Spain in order to avoid becoming involved in diffi-
culties between their "Peoples." By the declarations they agreed:
(1) to prohibit direct or indirect exportation of arms and materials
of war from their territory to Spanish territories; (2) to apply this
prohibition to contracts in process of execution; and (3) to keep other
governments participating in this mutual understanding (cette en-
tente) informed of the measures taken to carry out the prohibitions.
This bilateral "agreement" was made contingent upon the adherence
of Germany, Italy, the U. S. S. R., and Portugal.
Twenty-seven governments eventually made similar declarations
of policy in one form or another,10 but there was no one instrument
which all signed or adhered to and the "agreement" was simply a
concert of policy, the fulfillment of which depended on the initiative
of each state. Analysis of the various notes comprising this "agree-
ment" discloses that 17 (including Czechoslovakia, France, Great
Britain, and the U. S. S. R.) of the 27 repeated verbatim the preamble
and the three basic declarations of policy contained in the Franco-
British notes. Two other states which omitted the second declara-
9 The complete story of this agreement is admirably presented by Norman J.
Padelford, "The International Non-intervention Agreement and the Spanish
Civil War," American Journal of International Law, 31 (1937), 578-603, upon
which the account given here is chiefly based.
10 The texts of all the declarations will be found in L'Europe Nouvelle, 26
September 1936, supplement.
9
tion belong properly in this group. One state simply declared it
adhered to the French "proposition." These 20, therefore, were
parties to the entire "agreement."
The notes of six states (including Germany and Italy) repeated
the declarations, but omitted the preamble. By omitting the pre-
amble these states left themselves free, so far as the agreement was
concerned, to engage in all forms of interference not specifically
prohibited in the declarations, while the other states noted above
agreed to refrain from all interference, direct or indirect. Therefore
these six states, legally speaking, are not to be condemned for allow-
ing their nationals to give that aid to the Spanish insurgents which
is permitted under international law. Moreover, five of these states
appended interpretations or reservations to their declarations. For
instance, Germany made her adherence conditional upon that of
all European states having sizable industries for producing the pro-
hibited goods. Italy interpreted the prohibition of "indirect inter-
ference" agreed upon by the 20 states in the preamble as forbidding
"public subscriptions or enrollment of volunteers in favor of one or
the other of the parties in conflict," whereas by not agreeing to the
preamble Italy did not actually bind herself to prohibit public sub-
scriptions or the enrollment of volunteers.
In effect, the "agreement" was virtually an attempt to induce
Germany and Italy to refrain from doing what they were prohibited
by international law from doing, namely, giving or permitting
certain direct aid to the Franco insurgents, in return for an agree-
ment on the part of Great Britain and France to refrain from doing
what they were permitted by international law to do, namely, giving
certain direct aid to the Barcelona Government, if they saw fit. The
note of Portugal went so far as to state that if any countries con-
sented to the enrollment of volunteers or the raising of funds for the
war, Portugal would be automatically released from all obligations
under the accord!
From this it may be concluded that there was little actual agree-
ment to prohibit all aid to Spain contained in this International Non-
Intervention Agreement, at least little agreement binding on Germany
and Italy. Consequently, there appears to have been no treaty bar
to a change of policy by Germany and Italy such as their recognition
(18 November 1936) of the Franco Government as the government
of all Spain. Nor was the situation changed by the resolution 11 of
8 March 1937 of the London Non-Intervention Committee concerning
an "observation scheme" to prevent transit of non-Spanish recruits
11 Text in American Journal of International Law, Suppl., 31 (1937), 163-79.
10
into Spain. It contains no outright obligation binding on Germany
and Italy, since the wording of the resolution is "sufficiently vague
legitimately to allow withdrawals from any or all parts of it" by any
state at any time. As Padelford observes—
The London Committee has no de jure existence, and the reso-
lution no de jure force as an international engagement. The
entire structure has been built upon an accord of policy from
which any power has been at liberty to depart at any time for
reasons of national policy.12
It cannot be said, therefore, that "the only possible justification”
for the Joint Resolution adopted by the Congress of the United States
on 8 January 1937 applying the arms embargo to Spain "was the
belief that the Non-Intervention Committee in London would prevent
arms from reaching both sides in the civil war." 13 As a matter of
fact arms were reaching Spain not only from Germany and Italy,
but also from other sources. Subsequently both Germany and Italy
declined to participate in the Nyon Arrangement of 14 September
1937 14 with regard to submarine activities in the eastern Mediter-
ranean or the Agreement Supplementary to the Nyon Arrangement
signed at Geneva three days later. 15
RIGHTS AND OBLIGATIONS OF THE UNITED STATES
TOWARD THE PARTIES IN THE SPANISH
CIVIL WAR
1. Under Joint Resolution of 8 January 1937
The most recent so-called neutrality laws of the United States,
namely, those of 31 August 1935, 29 February 1936, 8 January 1937,
and 1 May 1937, have had for their object to keep the United States
out of foreign wars. President Franklin D. Roosevelt, in signing the
first of these, said that he had done so-
because it was intended as an expression of the fixed desire of
the Government and the people of the United States to avoid
any action which might involve us in war. The purpose is
excellent, and this joint resolution will to a considerable degree
serve that end."
16
On 5 October 1935 the President issued a proclamation" applying
an arms embargo to Ethiopia and Italy under the act of 31 August
1935. This act expired on 29 February 1936, at which time the act
12 Padelford, op. cit., 598.
13 Raymond Leslie Buell, letter of 12 April 1938, in New York Times, 17 April
1938.
14 Text in American Journal of International Law, Suppl., 31 (1937), 179-81.
15 Text in American Journal of International Law, Suppl., 31 (1937), 182.
10 U. S. Department of State, Press Releases, 31 August 1935, vol. 13, 162.
17 Text ibid., 5 October 1935, vol. 13, 251-4.
11
was extended and amended to 1 May 1937 and a new proclamation 18
of the arms embargo to Ethiopia and Italy was issued by the Presi-
dent under the new act.
This was the state of the law at the time the Spanish civil war
seemed to be taking on the proportions of a possible European war.
The acts of 1935 and 1936 made no provision for an arms embargo
in case of civil war, although they had established a National Muni-
tions Control Board and a system of licenses to control the export of
arms to all countries even in times of peace. Up to December 1936
the licenses issued for shipment of arms to Spain were negligible,
since the exporters had "patriotically refrained from requesting
licenses for such shipments upon receiving an explanation of this
Government's attitude and policy of scrupulous non-intervention in
the Spanish situation." 19 In other words, under the law existing at
that time the United States Government had refrained from exer-
cising its right under international law to aid directly the Barcelona
Government, and the nationals of the United States had, generally
speaking, refrained from exercising their right under the law of the
United States as well as under international law to sell arms at their
own risk to any one in Spain. In December 1936, the National Muni-
tions Control Board "found itself obliged to grant two licenses for the
exportation to the port of Bilbao in Spain of a shipment of airplanes
and engines to the total value of $2,777,000.” 20
To fill in the gap in the act of 1936 in that it was not applicable
to civil wars, a Joint Resolution 21 was pushed through Congress on
8 January 1937 to prohibit the exportation of arms from the United
States to Spain. This provided that "during the existence of the
state of civil strife now obtaining in Spain," it would be unlawful
to ship arms from the United States "to Spain or to any foreign
country for transshipment to Spain or for use of either of the opposing
forces in Spain" under penalty of a fine of not more than $10,000 or
imprisonment of not more than five years, or both. It also empowered
the President to revoke the arms embargo, whenever in his judgment
"the conditions described in this Resolution have ceased to exist."
It will be noted that this arms embargo was laid down by the Congress
itself, not by a proclamation of the President; that it was to be in
force "during the existence of the state of civil strife now obtaining
in Spain"; and that it could be revoked by the President, but only
when he judged "the conditions described in this Resolution," namely,
18 Text ibid., 29 February 1936, vol. 14, 191-4.
19 Ibid., 2 January 1937, vol. 16, 5.
20 Ibid., 4.
21 Public Resolution No. 1, 75th Congress; text also in American Journal of
International Law, Suppl., 31 (1937), 102-3.
12
"the state of civil strife," had ceased to exist. It is manifest even
now, as Secretary of State Cordell Hull declared 22 on 21 March 1938,
that "the state of civil strife in Spain described in the Joint Resolu-
tion of Congress of January 8, 1937, has not ceased to exist." Conse-
quently, the arms embargo contained in the Resolution of 8 January
1937, cannot be revoked under the existing circumstances except by
another act of Congress.
2. Under Joint Resolution of 1 May 1937
Since the general neutrality law of 29 February 1936 expired on
1 May 1937, a new Joint Resolution 23 was passed on that date extend-
ing and amending the old law. Among the new provisions was the
positive mandate that-
Whenever the President shall find that a state of civil strife
exists in a foreign state and that such civil strife is of a mag-
nitude or is being conducted under such conditions that the
export of arms, ammunition or implements of war from the
United States to such foreign state would threaten or endanger
the peace of the United States, the President shall proclaim such
fact, and it shall thereafter be unlawful to export, or attempt to
export, or cause to be exported, arms, ammunition or imple-
ments of war from any place in the United States to such for-
eign state, or to any neutral state for transshipment to, or for
the use of, such foreign state.24
On the same day, 1 May 1937, the President issued the proclamation 25
required of him by this act, taking notice of the existence of a civil
war in Spain and laying down an arms embargo against Spain.
It has been alleged 26 that this later general neutrality act of
1 May, which the President might apply to civil wars generally and
actually did apply to the civil war in Spain, was intended to super-
sede the earlier specific Spanish embargo act enacted by the Congress
itself. If such a contention were correct, the act of 1 May 1937,
which states that it is amending the act "approved August 31, 1935,
as amended February 29, 1936," would also have stated that the act
of 8 January 1937 was thereby repealed. This omission implies
that the act of 8 January was not to be superseded, but was to be
reinforced, by the act of 1 May. It cannot be gratuitously assumed
that the act of 8 January has been repealed by the passage of a later
22 Letter to Raymond Leslie Buell, in U. S. Department of State, Press Releases,
2€ March 1938, vol. 18, 399.
23 Public Resolution No. 27, 75th Congress; text also in American Journal of
International Law, Suppl., 31 (1937), 147-55.
24 Ibid., 147.
25 Text in U. S. Dept. of State, Press Releases, 1 May 1937, vol. 16, 290-4.
26 For example, by Dr. Raymond Leslie Buell, letter in New York Times, 10
April 1938.
13
act which in part covers the same subject but is not identical nor in
conflict with it.
Moreover, the act of 8 January declared an arms embargo against
Spain during the existence of the present civil war, which the Con-
gress itself had evidently decided might involve the United States
if complicated by incidents connected with the exercise by American
nationals of their normal right to engage in the arms traffic. The
act of 1 May, on the other hand, was an attempt to generalize this
specific policy by inserting it in the general neutrality act and leaving
it to the discretion of the President to decide whether any civil war
had reached "a magnitude" sufficient to "threaten or endanger the
peace of the United States." It was not necessary for the President
to issue his proclamation of 1 May simply to insure an arms embargo
against Spain, because that was already in effect under the Resolu-
tion of 8 January, which had not been specifically repealed. It was,
however, mandatory for the President to issue his proclamation, if
he was in agreement with the opinion of the Congress implied in the
act of 8 January, that an arms embargo against Spain would tend to
keep the United States out of the Spanish civil war. Moreover, since
the Resolution of 1 May contained additional provisions 27 not con-
tained in the Resolution of 8 January, only by the issuance of his
proclamation could these other provisions of the later act become ap-
plicable to the Spanish civil war.
This position is borne out by Secretary of State Cordell Hull, who,
in a letter of 21 March 1938, to Dr. Raymond Leslie Buell,28 points
out that, even if the President's Proclamation of 1 May 1937 were to
be revoked, the embargo on arms to Spain imposed by the Joint
Resolution of 8 January 1937, "would still remain in effect," as the
conditions described in the Resolution of 8 January itself, namely, a
"state of civil strife" in Spain, have not ceased to exist. In the opinion
of Secretary Hull, therefore, the act of 8 January is still in effect.
It has also been alleged 29 that "the United States in this instance
[namely, in maintaining the arms embargo] is merely following the
lead of France and Britain." It has already been pointed out above
that the International Non-Intervention "Agreement" implied in this
statement had already begun to bog down at least as early as 18
November 1936, when Italy and Germany recognized the Franco Gov-
27 For instance, the automatic embargo on the purchase or sale of bonds or
securities of any state named in an arms embargo proclamation, the authorization
of the President to issue another proclamation forbidding the export of other
articles than arms under certain circumstances, etc.
28 U. S. Department of State, Press Releases, 26 March 1938, vol. 18, 399.
29 For example, Raymond Leslie Buell, reported in New York Times, 27 March
1938.
14
ernment as the government of all Spain. Therefore, if the sole or
primary purpose of the acts of 8 January and 1 May 1937 had been
to follow "the lead of France and Britain," the United States would
have been following a lead which had already led nowhere. On the
other hand, an examination of the evolution of the act of 1 May 1937
from the act of 31 August 1935 through the acts of 29 February
1936 and 8 January 1937 shows conclusively that the primary pur-
pose was, as stated by President Roosevelt when he signed the 1935
act, long before "the lead of France and Britain" had been dreamed
of, "to avoid any action which might involve us in war." That this
original purpose was maintained in the act of 1 May is evidenced by
such statements as that of Green H. Hackworth, Legal Adviser of the
Department of State:
By the joint resolution approved May 1, 1937, . . . the Con-
gress and the President have placed on our statute books pro-
visions of law commonly referred to as neutrality legislation
but intended primarily to keep us out of future wars.30
The Joint Resolution of 1 May 1937 provides that "Whenever, in
the judgment of the President, the conditions which have caused him
to issue any proclamation under the authority of this section have
ceased to exist, he shall revoke the same." It will be noted that the
"conditions" which caused the President to issue the proclamation of
1 May were the finding by him that "a state of civil strife unhappily
exists in Spain" and that "such strife is of a magnitude and is being
conducted under such conditions that the export of arms from
the United States to Spain would threaten and endanger the peace
of the United States." If he should find that these conditions "have
ceased to exist," it is mandatory on him to revoke the arms embargo
proclamation. As late as 21 March 1938, Secretary Hull stated in
a letter to Dr. Buell that, "After careful consideration of all the
facts," he was "of the opinion that there has been no change in the
situation in Spain such as to warrant the President in revoking his
proclamation of May 1, 1937." 31 It is manifest that there has been
no essential change since that date in the "conditions" which caused
the issuance of the proclamation. The civil strife still exists. It is
of sufficient magnitude to involve the United States if complicated by
incidents connected with the exercise by American nationals of their
normal right to engage in the arms traffic. Consequently, it may be
asserted that the arms embargo proclamation of 1 May can not be
revoked, unless the President is prepared to deny the continued exist-
ence of the facts which motivated the issuance of the proclamation.
|
30 U. S. Department of State, Press Releases, 15 May 1937, vol. 16, 341.
81 Ibid., 26 March 1938, vol. 18, 398.
15
Moreover, it should be pointed out that, even if violence were done to
the clear meaning of the Resolution of 1 May by revoking the arms
embargo proclamation of 1 May, the arms embargo act of 8 January
would still operate to prevent the actual lifting of the embargo on
arms to Spain.
3. Under the Treaty of 3 July 1902 with Spain
But it has been alleged 32 that "the embargo against Spain vio-
lates the treaty obligations of the United States." In support of this
point, quotation was made of Article II of the Treaty of Friendship
and General Relations, concluded between the United States and Spain
on 3 July 1902, to the following effect:
There shall be a full, entire and reciprocal liberty of com-
merce and navigation between the citizens and subjects of the
two High Contracting Parties . . .
The rest of this paragraph, which was omitted in the quotation re-
ferred to, reads as follows:
who shall have reciprocally the right, on conforming to the laws
of the country, to enter, travel and reside in all parts of their
respective territories, saving always the right of expulsion
which each Government reserves to itself, and they shall enjoy
in this respect, for the protection of their persons and their
property, the same treatment and the same rights as the citizens
or subjects of the country or the citizens or subjects of the most
favored Nation.33
The obvious purpose of this paragraph is to accord to the citizens
and subjects of the respective countries the most-favored-nation treat-
ment. There is no outright grant of liberty of commerce. It is re-
stricted by (1) "conformity to the laws of the country"; (2) "the right
of expulsion which each Government reserves to itself"; and (3) "the
same treatment and the same rights as" those accorded to "the most
favored Nation." In other words, the liberty of commerce granted
shall not be less than that granted to the most favored nation. But
restrictions on the liberty of commerce may be made by law in the
interest of the national welfare, provided there is no discrimination
against Spaniards qua Spaniards.
This is borne out by the second paragraph of the same article
which reads:
They can freely exercise their industry or their business, as
well wholesale as retail, without being subjected as to their
32 "Memorandum of Law on the Embargo Against Spain," in Petition of Mem-
ber of the American Bar to the President of the United States and the Members
of the United States Senate and House of Representatives (New York, 1938), 9.
33 William M. Malloy, Treaties, Conventions, International Acts, Protocols, and
Agreements Between the United States of America and Other Powers (Washing-
ton, 1910), II, 1702. Italics mine.
16
persons or their property, to any taxes, general or local, im-
posts or conditions whatsoever, other or more onerous than
those which are imposed or may be imposed upon the citizens
or subjects of the country or the citizens or subjects of the most
favored Nation.34
In other words, conditions "may be imposed" on the exercise of
this liberty of commerce, but no “more onerous" conditions are to be
imposed by one country on the citizens or subjects of the other coun-
try than are or may be imposed on the citizens or subjects of the most
favored nation.
Moreover, the third and last paragraph of Article II reads as
follows:
It is, however, understood that these provisions are not in-
tended to annul or prevent, or constitute any exception from
the laws, ordinances and special regulations respecting taxa-
tion, commerce, health, police, and public security, in force or
hereafter made in the respective countries and applying to
foreigners in general.35
By this paragraph each nation reserves to itself complete freedom
of legislation and regulation "respecting commerce . . . and
public security" provided that any restrictive provisions which may
be adopted apply to all "foreigners in general" and there be no dis-
crimination against the citizens or subjects of the other.
The Joint Resolution of 8 January 1937 was an integral part of
the development of the so-called neutrality legislation designed to
keep the United States out of war. As pointed out above, it was
rushed through Congress to fill in a gap in the law of 29 February
1936, which in effect authorized the President to proclaim an embargo
on arms to any state engaged in any war other than a civil war.
Although the Resolution of 8 January applied only to the specific
"civil strife now obtaining in Spain," it did not apply to Spain qua
Spain, but to Spain qua a country engaged in civil war. Presumably,
a similar law would have been enacted had civil war been in exist-
ence in any other country. And this presumption is borne out by
the fact that the specific policy of the Resolution of 8 January was
generalized to apply to all civil wars in the Resolution of 1 May, which
replaced the law of 29 February 1936. Consequently, we may assert
that, by the Resolution of 8 January, there were no "more onerous"
restrictions placed upon Spain than upon the most favored nation.
Moreover, no protest from the Barcelona Government concerning the
possibility of conflict of the Resolution of 8 January with the Treaty
34 Loc. cit. (Italics mine).
35 Loc. cit. (Italics mine).
•
17
of 1902 is recorded in the printed Press Releases of the Department
of State.
The Joint Resolution of 1 May 1937, under which the second
Spanish arms embargo was proclaimed, has for its specific purpose,
as was pointed out above, the security of the United States and the
keeping of the United States out of war. Section 1 of this law pro-
vides that whenever the President finds that "a state of civil strife
exists in a foreign state" and that "such civil strife is of a magnitude
or is being conducted under such conditions that the export of arms
from the United States to such foreign state would threaten
or endanger the peace of the United States," he shall proclaim such
fact, and "it shall thereafter be unlawful to export" arms from any
place in the United States to, or for the use of, such foreign state. It
will be noted that, under this section, (1) the civil strife must, in the
opinion of the President, "threaten or endanger the peace of the
United States," that is, to use the phrase of the 1902 treaty, the “pub-
lic security" of the United States; (2) the law is applicable whenever
a state of civil strife exists in any foreign state, that is, it applies
generally to civil strife wherever existing; and (3) that an embargo
is to be laid by proclamation on arms alone, not on commerce gener-
ally with the state in which civil strife exists. The obvious purpose
of this section is to prevent the United States from becoming involved
in a civil war by reason of incidents connected with the exercise by
American nationals of their normal right to engage in the arms traffic.
Section 3 provides that whenever the President has issued a
proclamation under Section 1-
it shall thereafter be unlawful for any person within the United
States to purchase, sell, or exchange bonds, securities, or other
obligations of the government of any belligerent state or of any
state wherein civil strife exists, named in such proclamation,
or of any political subdivision of any such state, or of any per-
son acting for or on behalf of the government of any such
state, or of any faction or asserted government within any such
state wherein civil strife exists, or of any person acting for or
on behalf of any faction or asserted government within any
such state wherein civil strife exists, issued after the date of
such proclamation, or to make any loan or extend any credit
to any such government, political subdivision, faction, asserted
government, or person, or to solicit or receive any contribu-
tion for any such government, political subdivision, faction,
asserted government, or person.30
This section was not to be construed--
to prohibit the solicitation or collection of funds to be used for
medical aid and assistance, or for food and clothing to relieve
3º American Journal of International Law, Suppl., 31 (1937), 149-50.
18
human suffering, when such solicitation or collection of funds
is made on behalf of and for use by any person or organization
which is not acting for or on behalf of any such government,
political subdivision, faction, or asserted government.37
The obvious purpose of this section likewise is to prevent the United
States from becoming involved in a civil war by reason of increased
financial interests in the country engaged in civil war on the part of
American nationals. In this respect it is in line with the policy laid
down in the Johnson Act of 13 April 1934,38 which prohibited such
financial transactions with those foreign states or their agencies which
had defaulted in the payment of their obligations-the so-called "war
debts"-even in part, to the United States.
Section 6 prohibits any American vessel from carrying arms to a
belligerent country while the President's proclamation is in force. It
obviously has the same purpose as Sections 1 and 3.
Sections 1, 3, and 6 of the Law of 1 May 1937, therefore, imposed
no "more onerous" restrictions on the citizens of any one country
than on the citizens of any other country engaged in a civil war or
any other war.
Under the authority of the Resolution of 1 May 1937, President
Roosevelt on the same day issued a proclamation—
that a state of civil strife unhappily exists in Spain and that
such civil strife is of a magnitude and is being conducted under
such conditions that the export of arms, ammunition, or imple-
ments of war from the United States to Spain would threaten
and endanger the peace of the United States.39
He admonished all citizens of the United States and persons resident
therein to abstain from violating the law of 1 May 1937; he imposed
upon all officers of the United States the utmost diligence in prevent-
ing violations of the same law and of his proclamation; and he dele-
gated to the Secretary of State the power to promulgate such regu-
lations "not inconsistent with law as may be necessary and proper
to carry out any of its provisions." 40
It will be noted that this proclamation simply applies the law of
1 May specifically to the Spanish civil war. It is in "conformity to
the laws of the country" and it is not in conflict with "the same treat-
ment and the same rights as" those accorded to "the most favored
Nation," which are the conditions expressed in the Treaty of 3 July
1902. Here again no "more onerous" restrictions are imposed on
Spaniards qua Spaniards than on the citizens of any other country
37 Ibid.
88 U. S. Code (1934 ed.), tit. 31, sect. 804a, p. 1424.
89 U. S. Department of State, Press Releases, 1 May 1937, vol. 16, 292.
40 Ibid., 294.
19
engaged in a domestic war. Spaniards are still free to sell anything
whatsoever to nationals of the United States and to purchase any-
thing except arms from nationals of or persons resident in the United
States.
Therefore, it is not true to assert 41 that-
Embargo legislation which forbids the shipment of articles of
commerce and navigation, such as arms and munitions, by
citizens and subjects of the United States to the government of
Spain or to any person in Spain is a direct violation of the
treaty obligation of the United States towards Spain.
Nor is it true to assert 2 that it "specifically constitutes a breach of
Article II of the Treaty" of 1902. On the contrary, throughout there
has been a meticulous observance of treaty law in both the Act and the
Proclamation of 1 May 1937.
4. Under International Law
We have discussed the rights and obligations toward the parties
in the civil war in Spain under the municipal law and treaty commit-
ments of the United States and have concluded that the embargo on
arms to Spain is in conformity with both. It remains to consider
the rights and obligations of the United States under international
law, applying the general principles enunciated at the beginning of
this presentation to the relationship of the United States toward the
parties in the Spanish civil war.
The United States is free, as it sees fit, to grant or withhold
recognition of the belligerency of the Franco insurgency, depending
on whether it believes the four conditions for such recognition have
been satisfied or not. Granting for the sake of argument that it has
withheld such recognition, it is obliged under international law to
abstain from directly assisting the Franco insurgency, but it is free,
as it sees fit, to grant or withhold direct assistance to the Barcelona
Government, or to permit or forbid its nationals, at their own risk,
sub-
to sell arms to any one in Spain, even to the Franco insurgency,
ject to capture as contraband of war. It is not true, therefore, to
assert 43 that-
It is firmly established in international law that when one
established government is threatened with insurrection, it is the
duty of sister governments to forbid shipments of arms to the
rebels and to permit their own subjects to supply war materials
to the established government, the sister governments being
privileged to aid directly.
41 "Memorandum of Law on the Embargo Against Spain," op. cit., 9-10.
42 Ibid., 10.
43 Ibid., 12.
20
It is true that "it is the duty of sister governments" not them-
selves to ship arms "to the rebels," for this would be regarded by
the established government as either an unfriendly act or an act of
intervention. It is true that the sister governments are "privileged
to aid directly" the established government, if they see fit, but there
is no obligation to do so. The granting of aid is purely a matter of
policy on the part of the sister government. It is not true, however,
that "it is the duty of the sister governments to forbid shipments of
arms to the rebels and to permit their own subjects to supply war
materials to the established government." They have the right to do
either or both, but are under no legal obligation to do so. This again
is purely a matter of policy on the part of sister governments.
International law requires the governments of outside states not
to give direct aid to the insurgents. International law permits the
governments of outside states to give direct aid to the established
government, if they see fit to do so. International law does not re-
quire the governments of outside states to forbid its nationals to ship
arms to the insurgents. Apart from municipal law to the contrary,
nationals of outside states are free to ship arms to anyone in a state
in insurrection, subject to capture as contraband of war. However,
international law permits the governments of outside states, if they
see fit, to forbid its nationals to ship arms to anyone in the state in
insurrection. The United States has often legislated to regulate the
conduct of its nationals in time of a foreign civil war. "This," says
Professor George Grafton Wilson, "has most frequently taken the
form of restriction upon the export of arms and munitions, as to
American countries by joint resolution of March 14, 1912," and as
"to countries where extraterritorial jurisdiction exists by the reso-
lution of January 31, 1922." 44
It is beside the point to mention 45 the obvious fact that "aid to
insurgents against a recognized government is wholly inconsistent
with friendly relations with that government," and "aid to insurgents
is regarded in law as an act of hostility against the established gov-
ernment." Here there is confusion between “direct aid” by a foreign
government to insurgents, which is not permissible under inter-
national law, and acts of government taken for other reasons and
not necessarily resulting in aid to the insurgents (which are per-
missible under international law). In the present instance, the pur-
pose of the Spanish embargo is to keep the United States out of a
possible European war. That it "aids" the insurgents, if that be a
fact, is not due to the necessary consequences of any positive act of
44 George Grafton Wilson, International Law (9th ed., New York, 1935), 68-9.
45"Memorandum," op. cit., 12.
21
the United States, but to the unwillingness or inability of the Barce-
lona Government to secure arms elsewhere (possibly, the U. S. S. R.,
Czechoslovakia, Great Britain or France), for which the United
States is certainly not responsible. It might as well be said that the
nations participating in the London Non-Intervention Committee are
committing unfriendly acts against the Barcelona Government, for
the intention of those nations is that aid should not reach the Barcelona
Government (as well as the Franco insurgency) from any outside
source.
46
The quotation 10 of the Convention concerning the Duties and
Rights of American States in the Event of Civil Strife," signed at the
Sixth International Conference of American States at Habana, 20
February 1928, and ratified by the United States on 21 May 1930, is
likewise beside the point. This forbids neutral traffic in arms, "ex-
cept when intended for the government" of the state in insurrection,
but it refers only to civil strife in one of the American states and is
binding only between signatories. Therefore, it has no application to
relations between Spain and the United States. Moreover, it forbids
traffic in arms (except when intended for the government) only
"while the belligerency of the rebels has not been recognized, in which
latter case the rules of neutrality shall be applied," and it does not
require traffic in arms for the aid of the established government in
the case permitted.
It is beside the point also to assert 48 that "no nation may take
action inconsistent with the sovereignty of another or take any action
which might call into question or interfere with the authority of a
duly constituted government . . ." In support of this assertion,
citation is made of "Hyde, International Law Chiefly as Interpreted
and Applied by the United States, Vol. 1, p. 119; Moore, International
Law Digest, Vol. VI, Secs. 897-8, pps. 2-32." The citations given do
not support the statement made. Hyde is merely discussing "Self-
Defense" and the justification of intervention in self-defense. Moore
is merely discussing the general principles of "Political Intervention"
and the policy of non-intervention.
C
But intervention is not involved in the Spanish arms embargo.
Intervention may be defined as "the interference by a state in the
domestic or foreign affairs of another in opposition to its will and
serving by design or implication to impair its political independ-
40 Loc. cit.
47 Text in American Journal of International Law, Suppl., 22 (1928), 159-66.
48"Memorandum," op. cit., 11.
22
ence." 40
To have intervention, there must be interference in the
affairs of another state and the interference must be intended, either
directly or by implication, to impair the other state's political inde-
pendence. The United States has not interfered in the affairs of
Spain. It has sent none of its armed forces to participate in the
civil war. It has sent no threatening diplomatic notes. In fact, it is
precisely to avoid interference in the affairs of Spain that the Con-
gress enacted the Embargo Act of 8 January and that the President's
proclamation of 1 May made the so-called neutrality law of the same
date applicable to Spain. If the Spanish arms embargo has prevented
Spain from securing arms from the United States, this has not been
due to the desire of the United States to affect the outcome of the
civil war in Spain, but rather, as pointed out above, to a desire to
prevent the United States from becoming involved in European wars.
Therefore, even if the United States has not recognized the
belligerency of the Franco insurgency, it is within its rights under
international law to place an embargo on arms to Spain.
But it may even be maintained that the United States as a matter
of fact has recognized the belligerency of the Franco insurgency. As
the late Professor James W. Garner said, in one of the last articles
from his pen, when "a material state of war exists on a large scale,"
in normal circumstances "recognition ought to follow as a matter of
course.” 50
Fred K. Nielsen goes even farther, when he says that the
legal status of belligerency is not necessarily dependent upon affirma-
tive acts of recognition, but "may be considered accomplished" auto-
matically when the insurgents have satisfied the four conditions
requisite for such recognition.51 Secretary of State John Hay main-
tained that this recognition was actually accorded "by proclaiming
neutrality." And such indeed seems to be logical, for neutrality pre-
supposes a war and a war presupposes at least two belligerents.
Accordingly, the placing of an embargo on arms by the United
States to both parties in the civil war in Spain is in itself tantamount
to recognition of the belligerency of the insurgency, in spite of dis-
claimers to the contrary, based on the distinction between "war in the
material sense" and "war in the legal sense." Mere admission of
49 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied
by the United States (2 vols., Boston, 1922), I, 117. W. E. Hall, International Law
(7th ed. by A. Pearce Higgins, Oxford, 1917), 78, says that intervention takes
place "When a State . interferes in the domestic affairs of another State
irrespective of the will of the latter for the purpose of either maintaining or
altering the actual condition of things within it."
50 James W. Garner, "Recognition of Belligerency," American Journal of Inter-
national Law, 32 (1938), 106-13, citing authorities.
51 Fred K. Nielsen, in American Society of International Law, Proceedings,
1987 (Washington, 1937), 146, citing Oppenheim and Moore.
23
insurgency connotes the existence of war in the material sense, but a
neutrality proclamation, such as an embargo on arms to both parties
in a civil war, connotes war in the legal sense, because neutrality
has no proper place in a strife that is not war in the legal sense.
The Joint Resolution of 8 January 1937, which originally applied
the arms embargo specifically to Spain, speaks of "the existence of the
state of civil strife now obtaining in Spain" and prohibits the expor-
tation of arms "to Spain or for the use of either of the opposing forces
in Spain." 52 If there is "strife" in Spain, there must be at least two
parties to the strife, that is, two belligerents, and the mention of
"opposing forces" confirms the existence of more than one belligerent.
But, besides the Barcelona Government, there is no formal belligerent
in Spain except the Franco insurgency.
The Joint Resolution of 1 May 1937, under which a second arms
embargo was proclaimed, amends the Joint Resolution of 31 August
1935, "providing for the prohibition of the export of arms, ammuni-
tion and implements of war to belligerent countries." The use of the
word "belligerent" in the very title of the Resolution implies that the
Resolution refers only to war in the legal sense. This is borne out
by the fact that the same enumeration of arms prohibited is applicable
to "civil strife" as to "war between, or among, two or more foreign
states" and the same provisions for penalties for violations and the
same provisions for revocation of the embargo are applicable in both
contingencies. There is no distinction in these respects between the
belligerents in a civil strife and those in a war between nations.
It is not true, therefore, to assert categorically 53 that "In the
eyes of the law, the rebels have no legal status; rebels are not belliger-
ents; rebels are not 'opposing forces."" It has been shown above
that the rebels in Spain have a de facto status in international law as
belligerents. Moreover, if they are not one of the "opposing forces"
in Spain, then the Joint Resolution of 8 January 1937 has no mean-
ing, and if they are not "belligerents," then the Joint Resolution of
1 May 1937 misused this term.
In the light of the foregoing, the quotation 54 from Professor Edwin
M. Borchard, that "international law requires the United States to
treat the elected government of Spain as the lawful government of
Spain and until the belligerency of the rebels is recognized, as the
only government entitled to receive the assistance of the United
States in suppressing armed opposition," loses point here. Professor
Borchard's statement is perfectly true, but the clear implication in-
52 American Journal of International Law, Suppl., 31 (1937), 102-3.
53"Memorandum," op. cit., 13.
54 Ibid., 14.
24
tended to be derived therefrom, namely, that there is a legal obliga-
tion for the United States to grant assistance, is not warranted.
Granted, merely for the sake of argument, that the belligerency of
the Franco insurgency has not been recognized by the United States,
the Barcelona Government would of course be "the only government
entitled to receive the assistance of the United States in suppressing
armed opposition," but there is no obligation under international law
for the United States to grant assistance to the Barcelona Govern-
ment, if its domestic policy indicates such assistance inexpedient.
The United States would have a legal right to grant assistance to the
Barcelona Government, but no legal obligation to do so. The Barce-
lona Government could not justifiably regard it as an unfriendly act
if the United States exercised its option under international law by
not granting assistance.
Nor could the Barcelona Government regard an arms embargo
as an unfriendly act, if either the belligerency of the Franco insur-
gency has formally been recognized (in which case international
law requires neutrality) or if the belligerency of the Franco insur-
gency has been impliedly recognized by the placing of the arms
embargo itself for the purpose of keeping the United States out of
war (as the act of 8 January implied). Moreover, granting, for the
sake of argument, that the arms embargo act of 8 January, to which
Professor Borchard's statement (published in April 1937) neces-
sarily referred, was susceptible of misinterpretation as an unfriendly
act because it did not specifically give the reason therefor, this
alleged deficiency has been supplied by the Joint Resolution of 1 May,
under which the second arms embargo was proclaimed. The latter
resolution empowered the President to proclaim an embargo when
the civil strife was being "conducted under such conditions that the
export of arms . . would threaten or endanger the peace of the
United States." Since this is the only legal reason for proclaiming
the arms embargo, the Barcelona Government could not justifiably
regard it as an unfriendly act.
•
-
It is not true to assert 55 that "Neutrality' requires that outside
powers shall refrain from taking any action which disturbs the rela-
tionship between the warring parties." Nor can it properly be implied
that "neutrality" and "impartiality" are synonyms, if by "impar-
tiality" is meant "equality of effect." The rights and obligations of a
neutral foreign state to the established government and the belligerent
55 "Memorandum," op. cit., 14.
56 Dr. Raymond Leslie Buell maintains that the United States should lift the
arms embargo, in order to correet "what has proved to be an obvious injustice."
New York Times, 27 March 1938.
25
insurgency in a civil war are not affected by the amount of outside
assistance received by one of the parties from other foreign states.
Neutrality is "the attitude of impartiality adopted by third states
toward belligerents." The rules of neutrality adopted by a foreign
state must be impartial and they must be impartially applied, but their
objective effect on the two belligerents need not be, and generally is
not, equal. The neutrality of the United States before it entered the
World War "worked directly against" Germany, but this was not
because of any defect in the impartiality of the neutral rules of the
United States or in the impartiality of their application, but rather
because of Germany's geographical situation vis-a-vis France and
Great Britain, for which the United States was certainly not
responsible.
Nor does neutrality mean equal help must be given to both bellig-
rents. Vattel says that the impartiality of a neutral-
includes two things: (1) To give no help, when we are not under
obligation to do so, nor voluntarily to furnish either troops,
arms, or munitions, or anything that can be directly made use of
in the war. I say "to give no help," and not "to give equal help;"
for it would be absurd for a State to assist at the same time both
enemies, (2) In all that does not bear upon the war, a
neutral and impartial Nation must not refuse to one of the
parties, because of his present quarrel, what it grants to the
other.58
SUMMARY OF CONCLUSIONS ON LAW
From the foregoing the following conclusions may be drawn:
I. Under international law alone, apart from treaty obligations and
municipal law, in the absence of recognition by the United States
of the belligerency of the Franco insurgency:
1. The United States has the right, but not the obligation, to render
aid to the Barcelona Government. The United States has exercised
this right by not rendering aid to the Barcelona Government.
2. The United States has the obligation not to render aid to the
Franco insurgency. The United States has complied with this obli-
gation.
3. The United States has the right, but not the obligation, to pro-
hibit its nationals from selling arms to the Franco insurgency alone.
The United States has exercised this right by not prohibiting its
nationals from selling arms to the Franco insurgency alone.
Талибо
57 L. Oppenheim, International Law (4th ed., by Arnold D. McNair, London,
1926), II, 475.
58 E. de Vattel, Law of Nations, translated from 1758 edition by Charles G.
Fenwick (Washington, 1916), 268.
26
4. The United States has the right, but not the obligation, to permit
its nationals to sell arms to anyone in Spain. The United States has
exercised this right by not permitting its nationals to sell arms to
anyone in Spain.
5. The United States has the right to prohibit its nationals from
selling arms to anyone in Spain for the purpose of preventing the
United States from becoming involved in the civil war or war growing
out of the civil war. The United States has exercised this right and
thereby virtually recognized the belligerency of the Franco insurgency.
6. The United States has the right to recognize the belligerency of
the Franco insurgency, when the United States considers that the
Franco insurgency has satisfied the four requisite conditions for such
recognition. The United States has exercised this right by adopting
the neutral policy of an embargo on arms to anyone in Spain under
the Joint Resolutions of 8 January and 1 May 1937.
II. Under international law alone, apart from treaty obligations and
municipal law, after the United States has recognized the bellig-
erency of the Franco insurgency:
7. The United States has the obligation to treat the Franco in-
surgency as if it were a foreign government for the duration of the
war and therefore to follow a policy of neutrality toward the Barce-
lona Government and the belligerent Franco insurgency. The United
States has complied with this obligation by adopting the neutral policy
of an embargo on arms to anyone in Spain.
III. Under the treaty obligations of the United States, apart from
municipal law:
8. Under the Treaty of 3 July 1902 with Spain, the United States
is free to enact any law respecting "commerce" and "public security”
and "applying to foreigners in general" under the most-favored-nation
doctrine.
9. The Joint Resolution of 8 January 1937 is a specific application
to Spain of a general policy applicable to all states engaged in war and
therefore does not violate the Treaty of 1902.
10. The Joint Resolution of 1 May 1937 is a general law applicable
to all states engaged in war, the Arms Embargo Proclamation under
this law is a specific application of that law to Spain, and therefore
neither the Resolution nor the Proclamation violates the Treaty of
1902.
IV. Under the municipal law of the United States:
11. The United States can revoke the arms embargo under the
Joint Resolution of 8 January 1937, whenever the President considers
27
that the "civil strife" obtaining in Spain on that date has ceased to
exist. It is difficult to see how the President can consider that the
civil strife has ceased to exist until fighting between the Barcelona
Government and the Franco insurgency has virtually ceased.
12. The United States can revoke the arms embargo under the
Joint Resolution of 1 May 1937, whenever the President considers that
the "civil strife" existing in Spain on that date has ceased to exist or
that the strife is no longer of such magnitude or being conducted
under such conditions that the export of arms would threaten or
endanger the peace of the United States. It is difficult to see how
the President can consider that either of these conditions has been sat-
isfied until fighting between the Barcelona Government and the Franco
insurgency has virtually ceased.
13. Even if the President should consider that one of the conditions
of the Joint Resolution of 1 May has been satisfied and should there-
fore lift the arms embargo under that Resolution, the United States
would still be bound by the arms embargo under the Joint Resolution
of 8 January.
SHOULD THE EXISTING LAWS BE REPEALED OR
AMENDED?
The Spanish arms embargo under the existing law of 8 January
1937, therefore, can not be revoked until the President considers the
"state of civil strife" described by Congress has ceased to exist, and
the Spanish arms embargo under the existing law of 1 May 1937 can
not be revoked until the President considers the conditions which
motivated his proclamation of 1 May have ceased to exist. It may be
asserted, therefore, that under the existing laws, the Spanish arms
embargo can not be revoked, as long as the present civil war in Spain
continues or the peace of the United States would be threatened by
such revocation, except by an act of Congress repealing or amending
the existing laws.
As to whether the law of 8 January should be repealed or the law
of 1 May amended so as to permit the revocation of the arms embargo
during the existence of the civil war in Spain, this is quite another
question, which should not be decided precipitately or inconsiderately.
It would involve a complete change in the policy followed during the
past five years. This policy was intended to prevent the United States
from becoming embroiled in foreign wars. Senator Arthur W. Capper
declared as recently as 9 January 1939:
I conceive the Neutrality Act was written to enable the United
States to remain neutral and not for the purpose of enabling the
28
United States to help decide foreign wars without actually par-
ticipating as a belligerent. I believe that is the proper basis for
our foreign policy.59
The proposed change in the law entailing the actual revocation of the
arms embargo would mean the resumption of the arms traffic by the
nationals of the United States. In this manner the way would be open
for incidents calculated to involve the United States in the Spanish
civil war or any other European or foreign war.
A change in policy and law at this time designed to aid one of the
belligerents in a foreign civil war is quite a different matter from a
law intended not to aid either belligerent in a foreign civil war, but
to keep the United States out of the war. Such a change in policy and
law intended to favor the established government in a civil war, in
which the belligerency of the insurgency has virtually been recognized
by the United States, would be tantamount to a violation of the
neutrality required by international law in such cases. As Senator
Elbert D. Thomas admitted, "under most of the rules of neutrality a
change of policy in the midst of trouble or war may be deemed and
may actually be an unneutral act."60
Moreover, the fact that the Franco Government has been recog-
nized by at least 12 states as the government of all Spain would
probably induce at least those states to regard a change from neu-
trality to non-neutrality intended to aid the Barcelona Government as
an act of unjustifiable intervention on the part of the United States.
Certain it is that it would be regarded as such by the Franco Govern-
ment itself, and if, as now seems likely, it should prove ultimately
victorious in the civil war, it would have a strong case, under inter-
national law, to hold the United States accountable for such
intervention.
The cogency of these arguments will become clearer from a con-
sideration of the arguments which have been advanced in support of
the revocation of the Spanish arms embargo. It has been allegedĜ1
that "the embargo against Spain constitutes a repudiation of the tradi-
tional American foreign policy." What is the "traditional American
foreign policy" with regard to arms embargoes in foreign civil wars?
It has been the consistent policy of the United States to maintain its
right, under international law, to render or refuse, as it sees fit, direct
aid to the established government in suppressing an insurrection, as
well as to maintain its right, under international law, to permit or
59 Congressional Record, vol. 84, no. 4 (9 January 1939), 176.
60 Elbert D. Thomas, address at the Institute of World Affairs, Riverside,
Calif., 16 October 1938, in Congressional Record, vol. 84, no. 4 (9 January 1939),
208.
61 "Memorandum," op. cit., 15.
29
prohibit, as it sees fit, its own nationals to sell arms, at their own risk,
to anyone in the state in insurrection. Although its failure to impose
an arms embargo authorized by law or its revocation of an arms
embargo already imposed may actually have been more advantageous
to the insurgency than to the established government, the United
States could not, under international law, and did not render direct aid
to the insurgency without intervening or entering the war.
The United States has frequently aided an established govern-
ment in suppressing an insurrection either directly, by selling arms to
the established government, 62 or indirectly, by laying an embargo on
arms against both parties in the civil war or against the insurgency
alone. Thus, during the prolonged revolution in Mexico, Congress
enacted a law, approved 12 March 1912,03 which authorized the Presi-
dent, upon finding that "domestic violence" in any American country
is promoted by arms procured from the territory of the United States,
to lay an embargo on arms with "such limitations and exceptions as
the President prescribes . . ., until otherwise ordered by the President
or by the Congress." Under this authorization President Taft imposed
an arms embargo against both parties in the Mexican civil war. Under
the same authorization, arms embargoes against the insurgency alone,
to prevent arms from reaching the insurgency, were imposed against
Honduras on 22 March 1924, against Nicaragua on 15 September 1926,
against Cuba on 29 June 1934 64 and against Brazil on 22 Octo-
ber 1930.65
With regard to the Mexican embargo of 1912, President Taft's
proclamation imposed the embargo on both the Huerta Government
and the Carranza insurgency in order to prevent arms from reaching
the insurgency. However, "Legal difficulties arose out of attempts on
the part of the Army to continue to prevent exportation of arms, and
to detain Mexican revolutionists without evidence sufficient to war-
rant prosecution." The revolution assumed such proportions that
President Wilson, in an address to the Congress on 27 August 1913,
declared that the United States must no longer "be the partisans of
either party to the contest that now distracts Mexico, or constitute
ourselves the virtual umpire between them." Accordingly, by a proc-
62 George A. Finch, "The United States and the Spanish Civil War," American
Journal of International Law, 31 (1937), 79-80, cites four examples.
6337 Statutes, 630.
64 International Traffic in Arms, U. S. Department of State Pub. No. 1023
(Washington, 1937), 23.
65 U. S. Department of State, Press Releases, 25 October 1930, vol. 3, 264-5.
80 Edward Dumbauld, "Neutrality Laws of the United States," American
Journal of International Law, 31 (1937), 265, citing Ex Parte Orozco (1912), 201
F. 106.
67 Cited by James W. Garner, "International Law in the European War,"
American Journal of International Law, 10 (1916), 796.
30
lamation of 3 February 1914, President Wilson lifted the embargo and
thus made it possible for arms to be sent to the Carranza insurgency
as well as to the Huerta Government. The objective apparently was to
keep the United States from being involved directly in the war, but
the Carranza forces ultimately won recognition over the Huerta
Government.
A good exemplification of the fact that a country can not legally
aid an insurgency without entering the war against the mother gov-
ernment, is presented by the Joint Resolution of 22 April 1898,68 two
days after the United States recognized Cuban independence and
declared war on Spain. This Resolution, which authorized the Presi-
dent, in his discretion, to prohibit the export of coal or other material
used in war, from any seaport of the United States, was obviously a
measure of self-defense, a war measure, aimed at the Spanish fleet
and virtually in aid of the Cuban insurgents. The imposing of such an
embargo under this measure would have undoubtedly constituted a
violation of international law if the United States had not been at war
with Spain, since otherwise a foreign state is not permitted to take
any action primarily designed to injure the mother government and
virtually give direct aid to insurgency in a foreign civil war.
The law of 14 March 1912 previously referred to was amended by
the Joint Resolution of 31 January 192269 to include "any country in
which the United States exercises territorial jurisdiction." Under the
authority of this Resolution, President Harding imposed an arms
embargo against the insurgency alone in China on 4 March 1922.7
*
It will be noted that these laws, authorizing arms embargoes
against both parties or against the insurgency alone in a foreign civil
war at the discretion of the President, have been limited to American
countries and countries in which the United States exercises extra-
territorial jurisdiction. The reason is obvious. In American countries
the United States has special interests by virtue of the obligations
consequent to the Monroe Doctrine and the operation of the Panama
Canal. In those countries in which it exercises extraterritorial juris-
diction, it has vested interests which would be affected by any serious
internal disturbances. In both cases enlightened self-interest demands
that the United States exercise its optional right under international
law to give direct aid to the established government in suppressing
the insurrection and its optional right under international law to
permit or prohibit its citizens or subjects to sell arms, at their own
risk, to anyone in the state in insurrection. In neither case, it will be
68 20 Statutes, 739.
69 42 Statutes, 361.
70 International Traffic in Arms, 22.
31
observed, is the Government of the United States authorized to violate
international law by rendering direct aid to the insurgency. In neither
case is the United States obliged to impose an arms embargo on both
parties in the civil war (apart from the recognition of the belligerency
of the insurgency) or for that matter to impose an arms embargo at all.
In 1933-1934 an attempt was made to extend legislation of this
character so that the President would be authorized to impose an arms
embargo against countries in any part of the world "after securing the
cooperation of such governments as the President may deem neces-
sary." The purpose of this obviously was to permit joint interna-
tional action against a state which had been declared an "aggressor."
The measure was lost in the Senate, after an amendment supported by
Senators Johnson and Vandenberg had been reported out, to the effect
that any embargo proclaimed should apply equally to both parties in
the dispute. This measure had no reference directly to civil wars as
such, but, if enacted without the amendment, might have been made
applicable to such a civil war as now exists in Spain, in which various
nations are alleged to have taken sides with the contending parties.
72
Such an international cooperative policy was also manifested
during the Chaco war, when the Joint Resolution of 28 May 193473
was passed, authorizing the President to impose an arms embargo
against the countries engaged in that conflict, if he found that such
action "may contribute to the reestablishment of peace between those
countries" and if he made proclamation to that effect "after consulta-
tion with the governments of other American Republics and with their
cooperation, as well as that of such other governments as he may deem
necessary." On the same day President Roosevelt issued a proclama-
tion" putting the arms embargo into effect against Bolivia and
Paraguay.
Such measures as these were also indicative of the current of public
opinion in the United States in favor of legislation prohibiting the
export of arms to any country at war for fear of the subsequent
involvement of the United States in the war or its consequences. This
state of public opinion completely overshadowed the idea of an inter-
national cooperative policy and found expression in the law of 31
August 1935, the law of 29 February 1936 and the law of 1 May 1937,
the object of all of which was to keep the United States out of war.
The application of this principle to foreign civil wars finds its first
expression in the law of 8 January 1937 applying specifically and
71 A House resolution quoted by Edward Dumbauld, op. cit., 266.
72 Ibid., 267.
7348 Statutes, 811.
7448 Statutes, 1744-5; U. S. Department of State, Press Releases, 2 June 1934,
vol. 10, 327-8.
32
exclusively to Spain, and was expanded to include all civil wars in the
law of 1 May 1937.
In the maintenance of its right to permit or prohibit the export of
arms to foreign countries engaged in war there has been no variation
on the part of the United States. The alleged variation in the several
laws of 1935, 1936 and 1937 simply means that the United States has
exercised its option under international law by enacting general legis-
lation prohibiting the export of arms in certain contingencies instead
of by enacting separate specific laws if, as, and when the contingencies
arise. Whereas formerly the Congress by such laws as those of 1912
and 1922 allowed the President to exercise his discretion in imposing
embargoes on both parties or on the insurgency alone in a civil war,
whichever seemed best adapted to maintain the peace and security of
the United States, by the laws of 1935, 1936 and 1937 the Congress in
effect made it mandatory for the President to impose embargoes on
both parties in any civil war, if the imposing of an embargo at all was
necessary for the maintenance of the peace and security of the United
States.
It is beside the point to argue that the United States should lift the
embargo on arms to Spain because the success of the Franco insur-
gency would mean the aggrandizement of Fascism and Naziism. "A
state has the right to administer its internal affairs in such manner
as it may determine fit to secure and further its existence. It may
adopt any form of government." If the Franco insurgency is suc-
cessful and desires to adopt a Fascist form of government or even to
join Fascist Italy, that is no concern of the United States. As Secre-
tary of State Daniel Webster wrote to William C. Rives, United States
Minister to France, with regard to the recognition of the Second
Empire in France-
From President Washington's time down to the present day it
has been a principle, always acknowledged by the United States,
that every nation possesses a right to govern itself according to
its own will, to change institutions at discretion, and to transact
its business through whatever agents it may think proper to
employ. This cardinal point in our policy has been strongly
illustrated by recognizing the many forms of political power
which have been successively adopted by France in the series of
revolutions with. which that country has been visited. . . . And
while we deeply regret the overthrow of popular institutions, yet
our ancient ally has still our good wishes for her prosperity and
happiness, and we are bound to leave to her the choice of means
for the promotion of those ends. T
76
75 George Grafton Wilson, International Law (9th ed., New York, 1935), 82.
76 John Bassett Moore, A Digest of International Law (8 vols., Washington,
1906), I, 126.
33
But, it may be argued, if Fascism controls Spain, its next move will
be to the Western Hemisphere and therefore the United States should
lift the embargo to maintain the ultimate security of the United
States! To avoid a hypothetical war in the more or less remote future,
the United States should take an action which may involve it in a real
war almost in the present! This reminds one of Martial's epigram
about "the foolish coward":
Fannius took his life away
In order to escape the fray.
What folly this? I ask: to die
Forsooth, in order not to die.
Only the case of Fannius is less ridiculous; his ultimate death was not
as remote as the hypothetical war conjured up by this sort of rea-
soning. It might with greater plausibility be argued that the United
States should intervene in the Sino-Japanese conflict, on the ground
that if Japan is victorious, her next objective will be the Western
Hemisphere and the United States. If followed to its logical conclu-
sion, this argument would mean fighting perpetual wars of interven-
tion to avoid future hypothetical wars.
With regard to the probability of involvement of the United States
in the Spanish civil war by the resumption of the arms traffic, one
need only point on the one hand to the frequent bombing of Norwegian,
French, and British ships in Spanish waters during the past two
years and on the other hand to the recent press reports" of Italy's
intention of throwing her full force into Spain if the French Govern-
ment relaxes from its non-intervention policy by allowing arms to
cross its borders for the Barcelona Government. It was the sinking of
the Lusitania in 1915 which precipitated the anti-German feeling in
the United States ultimately taking the United States into the World
War of 1914-1918. It was a Bryan "cooling-off" treaty with Great
Britain which in 1915 prevented the United States, "in all probability,
from hostile action against Great Britain at a time when the relations
between the two countries were greatly strained."78 The existing
“neutrality” laws of the United States, if their application is con-
tinued by the retention of the embargo on arms to Spain, will prevent
the occurrence of incidents which in 1915 might have led the United
States into war against Great Britain but for a restraining treaty
and in 1917 actually did lead the United States into war against
Germany.
77 For instance, an International News Service dispatch in The Washington
Times, 23 January 1939, 4.
78 James Brown Scott, in American Society of International Law, Proceedings,
1985 (Washington, 1935), 104.
34
From the foregoing arguments, it is submitted that in the present
circumstances no change should be made in the existing law or in the
proclamation under existing law looking toward the revocation of the
embargo on arms to Spain.
35
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