¹ Wilson, G. G., “Insurgency and International Maritime Law,” this JOURNAL, VOL 1 (1907), p. 54;Google Scholar Wilson, G. G., in Naval War College, International Law Situations (hereafter cited as N. W. C.), 1902, p. 72 Google Scholar; ibid., 1904, p. 39; 1912, p. 20; 1935, p. 82; Padelford, N. J., “International Law and the Spanish Civil War,” this JOURNAL, Vol. 31 (1937), p. 226 et seq Google Scholar.

² See statements quoted in New York Times, Aug. 21, Nov. 24, 26, 1936; March 24, Apr.2, 13, May 2, July 16, Aug. 27, 1937.

³ a Padelford, loc. cit.

⁴ 20 British, 17 Russian, 7 Norwegian, 5 French, 4 Dutch, 3 Danish, and smaller numbers of vessels belonging to many other countries were reported to have been interfered with in this way between July, 1936, and March, 1938.

⁵ London Times, Apr. 13, 15, 20, Nov. 29, 30, 1937.

⁶ Ibid., Apr. 13, 15, 20, 21, 22, 24, 27, 29, Nov. 29, 30, Dec. 1, 8, 1937. The Naval Instructions of Spain on the Right to Visit recognized the propriety of the position taken by the British and foreign governments: “1. Right of visit can only be exercised by belligerents; 264 hence it can evidently be only resorted to during international conflicts by one or other of the states at war, as also during internal civil or insurrectionary wars, when one or more foreign Powers have recognized the insurrectionary party as belligerents. In such circumstances right of visit can be exercised by the mother country, but it is restricted to the merchant vessels of the nation or nations who have given this recognition, and who are for such reason in the position of neutrals.”United States Foreign Relations, 1898, p. 775.

⁷ Such reports were contained in the Notice to Mariners issued by the United States Hydrographic Office; the bulletin of the same title issued by the British Admiralty; the French Avis aux Navigateurs; the Spanish loyalist Avisos a los navegantes. Publicacion semanal. Instituto y observatorio de Marina, Servicio hidrografica de la Armada; the Spanish rebel PublicaciOn provisional de avisos a los navegantes, Servicio hidrografico de la Armada. Bugue-hidrografita Tofino’ de la jlota republican..

⁸ London Times, May 14, 1937.

⁹ New York Times, Feb. 26, Mar. 2, 5, 1937.

¹⁰ Ibid., April 15, 1937.

¹¹ London Times, April 14, 1937.

¹² Mahan, A. T., The Navy in the Civil War, Vol. 3, pp. 116, 118, 231, 232Google Scholar.

¹³ Lord Lyons to the British Office, Aug. 12, 1873. British Archives, F. 0. 72/1392.

¹⁴ U. S. For. Rel., 1893, p. 75.

¹⁵ U. S. For. Rel., 1898, p. 1036.

¹⁶ New York Times, March 5, 7, 1935.

¹⁷ Fauchille, P., Traite de droit international public (Paris, 1922), Sec. 1316(2)Google Scholar; Garner, J. W., International Law and the World War (London, 1920), I, pp. 336, 353Google Scholar; Hall, W. E., International Law (8th ed., Cambridge, 1923), pp. 640–641 Google Scholar; Hyde, C. C., International Law (Boston, 1922), II, p. 414 Google Scholar; Hershey, A. S., Essentials of International Public Law and Organization (rev. ed., New York, 1927), p. 643 Google Scholar n.; Mziller, Axel, International Law in Peace and War (Copenhagen, 1935), II, p. 188 Google Scholar; N. W. C., 1913, p. 147, 1914, p. 112; Oppenheim, International Law (2nd ed., London, 1912), p. 190; Rolin, A., Le Droit Modern de la Guerre (Brussels, 1921), II, Secs. 635-42 Google Scholar; Scott, J. B., Resolutions of the Institute of International Law (New York, 1916), pp. 167, 178Google Scholar; Stockton, C. H., “The Use of Submarine Mines and Torpedoes in Time of War,” this JOURNAL, Vol. 9 (1915), p. 277 Google Scholar; editorial comment, “Mines, Submarines and War Zones,” ibid., p. 461; N. W. C., 1914, pp. 100–138, 1933, pp. 99–110.

¹⁸ It may be observed that none of the reports mentioned the existence of mines off Cape Creus where three foreign vessels were seriously damaged.

¹⁹ Efforts to reach such a convention were made at Washington in 1922, The Hague in 1923, Havana in 1928, and London in 1930.

²⁰ See Art. 4, Spanish Naval Instructions, U. S. For. Rel., 1898, pp. 775, 776.

²¹ New York Times, July 23, 1936; Jan. 18, May 28, Aug. 27, 1937.

²² See London Times, May 15, 17, June 1, 4, 9, 18, 1937. See letter of Spanish Govern ment to the Secretary-General of the League of Nations, Official Journal, July, 1937, pp 602, 603. The preponderance of evidence indicates that the Spanish contentions containedin this letter were baseless.

²³ London Times, June 16, 1937.

²⁴ Ibid., June 21, 22, 1937. The German Government demanded the staging of a unite(naval display in Spanish territorial waters off Valencia, together with delivery of all Spanisl

submarines to the four Powers for neutralization for the balance of the strife. The customarily well-informed diplomatic correspondent of the London Times wrote on June 23, that none of the German proposals were “discussed in detail,” that there was never “an approach to an agreement on the naval demonstration,” and that the submarine proposition “never came within the scope of practical discussion.” The British and French proposed instead merely the sending of a protest to Valencia and the institution of an international commission of inquiry to examine the facts of the case.

In terminating the four-Power agreement and withdrawing from the International Naval Patrol off Spain, the German Government advised the British that: “The German Government, after being notified of the attacks on the cruiser Leipzig on June 15, and 18, have immediately informed the Powers engaged in the Spanish sea control that they are not willing to expose their naval forces, while entrusted with an international task, to further target practice off Red Spain.

“The German Government have limited to a minimum the guarantee which had to be asked for the safety of the German ships in requesting a naval demonstration of the four control Powers in order thus to express a definite and obvious solidary warning.

“Since the British and French Governments are not ready to agree even to this minimum request, the German Government regret to state that among the control Powers that spirit of solidarity which is an indispensable condition for the execution of the common international task is lacking. The German Government have therefore decided to withdraw finally from the Control Scheme.” London Times, June 24, 1937. The Italian note expressed the same views.

²⁵ Text in L’Europe Nouvelle, Oct. 9, 1937, p. iv.

²⁶ The invitations to the Nyon Conference provided for discussion of both submarine and aerial attacks. Text in London Times, Sept. 7, 1937.

²⁷ League of Nations Doc. C.409.M.273.1937.VII; this JOURNAL, Vol. 31 (1937), Supp., p. 182.

²⁸ No convention has been adopted delimiting the geographical extent of the Mediterranean. See “Limits of Oceans and Seas” (International Hydrographic Conference, Special Publication No. 23, Monaco, 1928); Report of the Proceedings of the First Supplementary International Hydrographic Conference held at Monaco, 1929 (Monte Carlo, 1929), pp. 187–189.

²⁹ General Report, Conference of Jurists, 1923, British Parliamentary Paper, Cmd. 2201, pp. 43–48; N. W. C., 1924, pp. 136–142; Moore, J. B., International Law and Some Current Illusions (New York, 1924), pp. 202–206 Google Scholar; Spaight, J. M., Air Power and War Rights (London, 1924), pp. 465–473 Google Scholar; N. W. C., 1930, p. 65.

³⁰ Finch, G. A., “Piracy in the Mediterranean,” this JOURNAL, Vol. 31 (1937), pp. 659–665.Google Scholar

³¹ Armaments Yearbook of the League of Nations, 1936, p.752. Three larger submarines were under construction at Cartagena at the outbreak of the war. It is understood that no one of these has been completed due to inability to obtain certain necessary parts as a result of the non-intervention accord.

³² See statement of Mr.Duff-Cooper, , First Lord of the Admiralty, in the House of Commons, June 7, 1937, London Times, June 8, 1937; ibid., Aug. 19, 1937.Google Scholar

³³ New York Times, May 30, 31, June 4, July 29, Aug. 12, 15, 19, 31, 1937. See appeal of the Spanish Government to the League of Nations, Aug. 21, 1937. League Doc. C.335.M. 226.1937.VII; minutes, third meeting, 98th Session of the Council, Sept. 16, 1937, pp. 10–12, 99th Session, Oct. 5, 1937, pp. 5–6.

³⁴ London Times, June 19, 21, 22, 23, 1937.

³⁵ Ibid., Sept. 2, 3, 8, 1937.

³⁶ Ibid., Sept. 1, 3, 1937.

³⁷ Ibid., June 22, 23, 1937.

³⁸ Ibid., Aug. 17, 1937.

³⁹ Ibid., Aug. 18, 1937. A significant editorial entitled “Piracy in the Mediterranean” appeared in the London Times, Aug. 25, reading in part:

“The British Government has made it abundantly clear that it does not regard the existence of civil war in Spain as conferring license upon any Spanish forces to interfere with British shipping on the high seas, and that it will not tolerate even such interference as the visiting of British ships in order to establish their character. Still less, of course, does it tolerate any more violent interference, and the British Navy has orders to afford protection to all British shipping against attack upon unarmed merchantmen provided they are its own. It has persistently advanced the principle that international law no less than the dictates of humanity and civilization forbids such attacks even in time of war . .

“It is no justification of these crimes to plead that neither Spanish Government has acceded to the Proces-Verbal adopted by the rest of the world; or that since they are not accorded the belligerent right of visit and search of merchant ships at sea, knowing that their enemies’ ships are using false colors, they have no alternative but to attack at sight. A new government seeking recognition does not recommend itself to the world by flouting the principles adopted by the world, even on the plea that its rival has not formally adopted them; and even the accordance of belligerent rights would not carry license to subject the ships even of the rival Government in its own country to the treatment inflicted of late upon all and sundry…”

⁴⁰ London Times, Aug. 27, 1937.

⁴¹ 41 Ibid., Sept. 7, 1937. The Italian reply flatly rejected the imputation of responsibility and refused to meet all demands. Ibid., Sept. 14, 1937.

⁴² The invitations read:

1. The French and British Governments are of the opinion that immediate consultation between and action by the Mediterranean and certain other interested Powers has now become necessary to deal with the intolerable situation created by the attacks recently and illegally carried out against shipping in the Mediterranean by submarines and aeroplanes without disclosure of their identity.

“2. The two Governments accordingly propose that a meeting should be convened on September 10 to end the present state of insecurity in the Mediterranean and to ensure that the rules of international law regarding shipping at sea shall be strictly enforced.

“3. They suggest that Nyon would be a suitable place for the meeting, since the representatives of many of the Governments concerned will soon be at Geneva in the normal course of events.

“4. While the invitation is being addressed to 10 Governments, so that those to be represented from the first will number 12 in all, it will be open to any of them to propose the inclusion of other Powers.”

⁴³ France originally desired membership in the Conference to be restricted to states bordering on the Mediterranean, but the British opposed this move.

⁴⁴ London Times, Sept. 10, 1937. Attention was called to the fact that the British and French Governments had shown little interest in collective measures of self-protection at the time of the attacks on the German war vessels.

⁴⁵ British Treaty Series, No. 29 (1936).

⁴⁶ Albania, Britain, Bulgaria, France, Germany, Greece, Italy, Soviet Union, Yugoslavia. United States Treaty Information Bulletins, Nos. 88–95.

⁴⁷ League Doc. C.409.M.273.1937.VII; this JOURNAL, Vol. 31 (1937), Supp., p. 179.

⁴⁸ Minutes, 3rd meeting, 98th Session of the Council of the League of Nations, Sept. 16, 1937, pp. 10–12.

⁴⁹ Finch, loc. cit.

⁵⁰ Calvo, C., Le Droit international (5th ed., Paris, 1896), Sec. 485Google Scholar; Fauchille, op. cit., Sec. 483(50); Hall, op. cit., Sec. 81; Harvard Research Draft Convention and Comment on Piracy, Art. 3; M011er, op. cit., I, pp. 211–212; Moore, Digest, II, Sec. 311; Oppenheim, op. cit., Sec. 275; Ortolan, Diplomatie de la Mer, Lib. II, Cap. 11; Phillimore, International Law (2nd ed., London, 1876), Lib. I, Sec. 353; Report of the subcommittee of the League of Nations Committee of Experts for the Progressive Codification of International Law, pp. 116–117 (C.196.M.70.1927.V); Steil, Der Tatbestand der Piraterie, pp. 73–76; Westlake, International Law (Cambridge, 1910), I, p. 177; Wheaton, Elements, Pt. II, Chap. II, Sec. 15.

⁵¹ Madrid decreed the rebel naval vessels to be outlawed and piratical,July 27, 1936, but the Powers refused to accept the decree ipso facto, so far as their international status was concerned.

⁵² See, in addition to preceding reference: Weisse, C., Droit International Appliqué aux Guerres Civiles (Lausanne, 1898), p. 119 et seq. Google Scholar; Rougier, , Las Guerres Civiles et be Droit des Gens (Paris, 1903), pp. 284–297 Google Scholar; N. W. C., 1900, p. 8, 1904, p. 37.

⁵³ United States v. Smith (1820), 5 Wheaton 153; The Magellan Pirates (1853), 1 Spink Ecc. and Adm. R. 81; instructions of British, French and German Governments to theft fleets in Spanish waters in the civil war of 1873, British Foreign and State Papers, Vol. 65, pp. 770, 777, 786; the case of the Argentine rebel vessel Porten (1873), Calvo, op. cit., Sec. 502; the case of the Peruvian Huascar (1877), Parliamentary Papers, Peru, No. 1, 1877; the case of the Cespedes (1877), Calvo, op. cit., Sec. 503; United States v. The Ambrose Light (1885), 25 Fed. Rep. 408; instructions to the American naval officers in Chilean waters in 1891, H. Ex. Doe. 91, 52nd Cong., 1st Sess., pp. 245–246; instructions to British naval officers during same insurrection, Parliamentary Paper, Chile, No. 1 (1892); The Three Friends (1897), 166 U. S. 1; the case of the Haitian rebel vessel Crete et Pierrot (1902), Pitt Cobbett, Leading Cases on International Law (London, 1922), Vol. I, p. 302.

Reference may be made to several similar cases found in the archives of the British Foreign Office but hitherto unpublished. Certain Spanish privateers seizing British vessels in West Indian waters in 1822, British naval vessels were ordered to take summary action to put a stop to the interference. Canning to Sir Wm. a Court at Madrid, Oct. 18, 1822. F. 0. 72/254. Same trouble complained of in dispatch of July 17, 1824. F. 0. 72/284. Spanish insurgent vessels having been decreed to be outlawed as pirates by the Spanish Government, the Law Officers of the Crown advised the Secretary for Foreign Affairs, July 24, 1873, that British vessels should treat them as such in any cases of interference. F. 0. 83/2378. ThiE advice was passed on by the Foreign Office to the Admiralty the same day in the following language: “His Majesty’s Government consider that if Spanish ships of war which have revolted commit any acts of piracy affecting British subjects or interests they should be treated as pirates, decree of the Spanish Government having deprived them of the protection of the Spanish flag.” F. 0. 72/1391. During the insurrection in Cuba in 1884, a Spanish gunboat stopped and searched a British vessel, The Scud, on the high seas, believing her to be engaged in filibustering. Upon the basis of an opinion of the Law Officers, dated Sept. 22. 1884, the Foreign Office demanded apologies, disavowal and compensation, since Spanish warships were not possessed of belligerent rights. F. 0. 72/1836, 1837.

⁵⁴ Higgins, A. P., Defensively Armed Merchant Ships and Submarine Warfare (London 1917), pp. 25–26 Google Scholar; Proceedings of the American Society of International Law, 1916, p. 66 Mr. Sarraut at the Conference on Limitation of Armaments, 1921, Conference on Limitation of Armaments (Washington, 1922), p. 598.

⁵⁵ Garner, J. W., International Law and the World War (London 1920), Vol. I, pp. 382383.Google Scholar

⁵⁶ See the liusitania note, Secretary of State Bryan to Ambassador Gerard at Berlin, May 13, 1915, U. S. For. Rel., 1915 Supp., pp. 393–396; the Sussex note, Secretary of State Lansing to Mr. Gerard, April 18, 1916, ibid., 1916 Supp., pp. 232–234; address of President Wilson to Congress, Feb. 3, 1917, ibid., 1917 Supp., pp. 109–112; address of President Wilson to Congress, April 2, 1917, ibid., pp. 195–203.

⁵⁷ Report printed in this JOURNAL, Vol. 14 (1920), pp. 95, 113.

⁵⁸ Ibid., Vol. 16 (1922), pp. 704–723.

⁵⁹ Conference, op. cit., p. 556.

⁶⁰ Ibid., p. 1605 et seq.

⁶¹ Ibid., pp. 700, 702, 704, 708, 718–726.

⁶² Mr. Root’s answer was that “such a person would not be subject to the limitations of territorial jurisdiction. The peculiarity about piracy was that, though the act was done on the high seas and not under the jurisdiction of any particular country, nevertheless it could be punished in any country. That was the really important point.” Conference, op. cit. p. 728.

⁶³ This JoresAL, Vol. 26 (1932), Supp., p. 759.

⁶⁴ British Treaty Series, No. 29 (1936).

⁶⁵ “If, as charged in the Russian notes to Italy, and in the public press, Italian submarines were responsible for some of the attacks upon foreign vessels in 1937, it would be proper to ’ hold that there had been a violation of the 1930 Treaty. These charges cannot be proven, and the Italian Government expressly denied them. London Times, Sept. 7, 8, 1937.

⁶⁶ For Spanish laws, see this JOURNAL, Vol.26 (1932), Supp., pp.1006–1009.

⁶⁷ The Permanent Court of International Justice in the case of The Lotus said that “if aguilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different states were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the states to which the ship on which the effects of the offense have taken place belongs, from regarding the offense as having been committed in its territory and prosecuting, accordingly, the delinquent.”Publications of the Court, Ser. A., No.10, p. 25.

⁶⁸ Smith, H. A., Great Britain and the Law of Nations (London, 1932), Vol. I, pp. 10–12.Google Scholar

⁶⁹ See Harvard Research Draft Convention on Piracy, Arts. 7 and 8, together with comments and references.

⁷⁰ Official Journal, Spl. Supp. 150 (Geneva, 1936), pp. 332–335; British Parliamentary Paper, Ethiopia, No. 2 (1936), Cmd. 5072. This agreement was terminated in July, 1936, just prior to the outbreak of the Spanish civil disturbance. London Times, July 12, 1936.

⁷¹ The British destroyer Basilisk was reported to have been attacked by submarine in October, 1937. London Times, Oct. 5, Nov. 4, 1937. The Dutch vessel Hannah was torpedoed and sunk seven miles off the Spanish coast, Jan. 11, 1938. New York Times, Jan. 12, 1938. The British freighter Endymion was torpedoed and sunk eleven miles off Cartagena, Jan. 31, 1938. Ibid., Feb. 1, 1938.

⁷² Smith, H. A., “Some Problems of the Spanish Civil War,” British Year Book of International Law, 1937, pp. 17–31 Google Scholar; Garner, J. W., “Recognition of Belligerency,” this JOURNAL, Vol. 32 (1938), pp. 106–113 Google Scholar, and citations therein.

⁷³ Padelford, N. J., “The International Non-Intervention Agreement and the Spaniel Civil War,” this JOURNAL, Vol. 31 (1937), pp. 578–604 Google Scholar. See statement by Secretary Eden in the House of Commons, Nov. 1, 1937. London Times, Nov. 2, 1937.