PUBLIC RECORD OFFICE
C.O.
Reference :-
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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Inci-
property within the enemy's territories includes the right to damage, in awful hostili- ties, the property of neutrals. (See "Standard" of the 6th February, 1899; dents," p. 26.)
These conflicting views and suggestions seem to show that the analogy between the carriage of despatches by the private vessel of a neutral, and the transmission of telegrams over cables belonging to the subjects of a neutral, cannot be pushed too far. Indeed, the Law Officers point out, in their opinion of the 7th May, 1898, that there is a fundamental distinction between the deliberate acceptance of despatches by a ship, the ordinary duty of which is not to carry such despatches at all, and the acceptance of the telegrams of a belligerent by a State or a company for transmission, in turn with other messages, over cables open to all the world.
Packets of a regular mail line have never been considered in fault for carrying a belligerent's despatches. (See Hall's "International Law," 4th edition, 703.)
At the recent Peace Conference the Representative of Denmark proposed that an amendment should be made in the project of the Brussels Conference to the effect that landing cables within territorial waters should be placed in the same category as land telegraphs. The result of this would have been to declare that such cables might be seized or destroyed by an army of occupation, even though belonging to companies or private persons, but that the material should be restored and indemnities provided upon the declaration of peace. The proposal was first amended by an omission of any reference to territorial waters, the wording of the clause running, "les télégraphes de terre y compris les câbles d'atterrissage ;" and subsequently, upon instructions from the Home Government, the British Delegate asked the Danish Delegate to abandon his proposal, on the ground that it had been agreed to exclude naval matters from the deliberations of the Conference.
If, then, the practice of the late war confirms the view that it is not the duty of neutrals to prevent the transmission of the telegraphic messages of belligerents, but to leave belligerents to protect themselves, and if the drift of opinion seems even to be in favour of some limitation of belligerents' right of self-protection, and to a certain extent to set towards the preservation and free use of neutral cables, it seems question- able whether there is any necessity for the introduction of new conditions having for their object the preservation of neutrality, into the relations of the State towards Cable Companies consisting of its subjects or operating from its shores. The right of a State to impose a censorship in its own interests, on telegrams leaving or reaching its terri- tories, has never been called in question. It is expressly asserted by the following clauses of the Telegraph Convention of St. Petersburgh:-
ARTICLE VII. '
"The High Contracting Parties reserve to themselves the power to stop the trans- mission of any private telegram which may appear dangerous to the security of the State, or which may be contrary to the laws of the country, to public order, or decency. "ARTICLE VIII.
"Each Government also reserves to itself the power to suspend the service of the international telegraphs for an indefinite period if it deem necessary, either generally condition or only upon certain lines and for certain classes of correspondence, upon that it immediately advises each of the other Contracting Governments."
These Articles do not, of course, create a right, but save it, having regard to the opening Article of the Convention, which asserts that "the High Contracting Parties recognize the right of all persons to correspond by means of the international tele- graphs" (Article I).
The United States (as it happens, not a party to the Convention) exercised the right of censorship freely. The manner of the exercise is worth notice. On the 25th April, 1898, by order of the President, the cable telegraph systems, seven in number, having their termini in New York, were constructively taken possession of by the Chief Signal Officer of the United States' Army. This action appears to have been taken under some statutory provision of the United States' law, which is variously stated as 'vesting in the Chief Signal Officer the control and operation of military telegraph lines," and as "charging the Chief Signal Officer with the control of all telegraph and cable lines within the United States in time of war." It appears that possession was not actually taken by the military authorities. The Presidents of the various Com- panies entered into written engagements with the Chief Signal Officer to abide by his directions, and assistants in each Company's office were sworn to faithfully observe the
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orders of the Military Censor-an officer appointed ad hoc by the Chief Signal Officer. The telegraphs were thus administered primarily for the benefit of the State, both in respect of suppressing objectionable messages, giving information from messages, and expediting the communications of the Government with its forces. Subject to this primary object, the telegraphs were worked, as in time of peace, for the benefit of the community. (See the interesting Reports of the Chief Signal Officer and the Military Censor, "Incidents," pp. 47 and 55.)
Similar arrangements could be made in the United Kingdom and the Colonies, whenever the interests of the country demanded it, under the clause already alluded to, which gives a right of possession and control in case of emergency. It may be thought better to leave the supervision of a commercial Company's telegrams to the operation of such a general clause, carefully framed, than to insert any clause expressly having reference to the preservation of neutrality. As the Law Officers advised with reference to the Barbados case (see ante, p. 3), the apprehended use by a belligerent of the cable of a neutral might, conceivably, under certain circumstances (e.g., if it were known that the other belligerent would undoubtedly view the permission to use the cable as an act of war), give rise to such an emergency as is contemplated by the clause. The right of interference in the last resort being thus preserved, it may perhaps be thought un- desirable and impolitic-in view of the general tendencies indicated by the late war, and of the fact that the interests of this country-with its widespread commercial connections and its powerful navy-would appear to be best served by maintaining the freedom of cables on neutral territory-to take any new step which should seem to be in the direction of impairing that freedom.
The form of the landing licence to be henceforth granted by the Board of Trade to Cable Companies has for some time past been under the consideration of a Committee representing many of the Government Departments. The form of emergency clause recommended by this Committee will be found in the Appendix to this Case (see letter G). It is still, however, under consideration in some parts.
In connection with the question of inserting a special clause relating to the duties of neutrals, the procedure to be adopted in carrying out the advice given by the Law Officers in 1898 might, under similar circumstances, arise for consideration. The view taken by the Post Office, and approved by the Foreign Office, was that no directions need be given either to State telegraphists or to the Cable Companies, but that, if an illegal user of the telegraphs at a British port by a belligerent was contemplated, the Gover- nor of the place should intervene by requesting the belligerent ship to leave the port, or
by otherwise preventing the access of the belligerent to the telegraph office.
The action of the Colonial Office in the Barbados case, and Mr. Chamberlain's despatch of the 17th May, may, on the other hand, perhaps be interpreted as suggesting that the views of the Government should be communicated to its own telegraphists and to the Cable Companies (which have offices in the United Kingdom as well as in the Colonies) in order that they may establish a censorship.
This question does not, indeed, press for immediate consideration, and its im- portance is much diminished if the Law Officers should be of opinion that the practice of the late war shows that some of the qualifications of the general principle which they laid down are difficult of enforcement, and not likely to be insisted on by belligerents.
The importance of international telegraphy to the civilized world is of compara- tively recent growth, and it cannot be said that international law has definitely pro-. nounced upon the important questions which may arise at any moment from the con- flicting interests of neutrals and belligerents in time of war. It may be convenient, therefore, to consider some of these questions from a general point of view before particular cases arise for decision.
The Law Officers are requested to advise
1. Whether, in their opinion, it is expedient to introduce into landing licences, or other instruments regulating the relations of the Government to private Telegraph Companies, any clause having reference to the establishment of a censorship over the messages transmitted, with a view especially to the maintenance of neutrality, or whether the imposition of any censorship which may be desired should be left to the operation of a comprehensive emergency clause providing for censorship as well as compulsory possession.
2. Whether, in the event of a war in which this country is neutral, direction should be given to the telegraphists of the State, and to the private Telegraph Companies, with a view to the exercise of a censorship, or whether any improper use of telegraphs should be left to prevention, in the rare cases in which it may arise, by other means.